Court No. - 19
Case :- MATTERS UNDER ARTICLE 227 No. - 285 of 2019 Petitioner :- Smt. Asha Tiwari And Another Respondent :- Sri Rajendra Kumar Yadav Counsel for Petitioner :- Satyendra Kumar Singh,Rajendra Singh Hon'ble Manoj Kumar Gupta,J.
The instant petition under Article 227 of the Constitution invoking supervisory jurisdiction has been filed challenging the order dated 19.10.2013 in P.A. Case No.41 of 2010 and the judgement and order dated 22.9.2018 passed by 19th Additional District Judge, Kanpur Nagar in Rent Appeal No.101 of 2013.
In brief, the material facts for deciding the instant case are as follows:-
The respondent-landlord filed an application under Section 21 (1) (a) of U.P. Act No.13 of 1972 for release of a residential accommodation in possession of one Raj Kishor as tenant. It was asserted in the release application that he was tenant of one room, varandah and open courtyard on the ground floor of building No.107/109-A Jawahar Nagar, Kanpur. It was further asserted that the family of the respondent-landlord comprises of himself, his wife Smt. Geeta and son Ishan. The landlord claimed that he does not have any sitting room, store room, pooja room and drawing room for entertaining the guests. The residential accommodation, it was alleged, available with the landlord was wholly insufficient to meet his residential requirement and, therefore, the release application was filed. In paragraph 14 of the release application, it was specifically asserted that the tenant had permitted his married daughter and a nephew to live with him. It was also asserted that the daughter has her separate house and she does not need the disputed house. The landlord also alleged that married daughter could not be member of the family of the tenant nor the nephew.
The release application was contested by the tenant Raj Kishor by filing written statement in which the alleged need of the respondent-landlord was denied. He disputed that his married daughter is living with him or he has permitted his nephew and members of his family to occupy any portion of the tenanted premises. He alleged that the landlord had sufficient accommodation in his possession and that he had also illegally demolished a part of the building.
The Prescribed Authority by impugned judgement and order dated 19.10.2013 allowed the release application after recording a categorical finding of fact that the need of respondent- landlord is genuine and bonafide and that he would suffer greater hardship in case the release application is not allowed.
Aggrieved thereby, the original tenant Raj Kishor filed an appeal under Section 22 of the Act being Rent Appeal No.101 of 2013. During pendency of the appeal, the original tenant Raj Kishor died. A substitution application for being substituted in his place was moved by his married daughter Smt. Asha Tiwari- petitioner no.1 and Arun Mishra, the nephew. They were permitted to be substituted by the appellate court in order to continue the litigation. The appellate court by impugned judgement and order dated 22.9.2018 dismissed the appeal.
Learned counsel for the petitioners vehemently contended that the courts below have ignored from consideration the material pleadings raised by the original tenant in the written statement and also the evidence that ample accommodation is available with the respondent-landlord for satisfying his alleged need. It is urged that the respondent-landlord did not lead evidence to controvert the specific case set up by the original tenant that he had in his possession several vacant rooms in the same building and that some of the tenants had also vacated the portions in their possession.
The courts below have considered the pleadings and the evidence on record and have declined to believe the case set up in this regard by the original tenant. It has been observed that the building in question was partitioned between the respondent-landlord and his brother. The brother has already sold his portion to a third party. It has also been held that two portions occupied by tenants Badalu and Ram Dulari were got vacated from them, as they were in dilapidated condition and have also fallen down since then.
Irrespective of the above findings, which are pure findings of fact, it is pertinent to note that petitioner no.1 being married daughter would not come within the definition of tenant as defined under Section 3 (a) of the Act nor she would inherit the tenancy rights in view of definition of family given under Section 3 (g) of the Act. Likewise, petitioner no.2, who is nephew of the original tenant, would neither be a member of the family of the deceased tenant nor would inherit the tenancy rights. The original tenant in his written statement admitted that petitioner no.1, his married daughter nor petitioner no.2, his nephew, were in possession of the tenanted premises. Thus, they were also not normally residing with the tenant in the premises in dispute. They were permitted by the appellate court to be substituted in place of the deceased tenant in order to prosecute the litigation but it would not confer any independent tenancy right in their favour. In the considered opinion of the Court, the petitioners, in such circumstances, cannot raise any grievance against the release order passed by the Prescribed Authority against the original tenant or the judgement of the Appellate court.
The petition is accordingly dismissed.
(Manoj Kumar Gupta, J) Order Date :- 21.1.2019 SL