Court No. - 30
Case :- WRIT - A No. - 19689 of 2018 Petitioner :- Ballu Respondent :- Baldeo Shastri Chaturvedi (Deceased) And 4 Others Counsel for Petitioner :- Vivek Dubey,Ashok Kumar Upadhyay Counsel for Respondent :- Rahul Sahai
Hon'ble Vivek Kumar Birla,J.
Heard Sri Vivek Dubey, learned counsel for the petitioner and Sri Rahul Sahai, learned counsel appearijng for the respondents.
Present writ petition has been filed seeking quashing of the order dated 23.7.2018 passed by the Prescribed Authority/Civil Judge, Senior Division, Fast Track Court, Mathura in PA Misc. Case No. 7 of 2016, Baldeo and others Vs. Nizam and others) and in P.A. Misc. Case No. 106 of 2015, Ballu Vs. Jaideo and others). A further prayer not to evict the petitioner from the disputed shop pursuant to the order dated 24.7.2018 passed by the Prescribed Authority/Civil Judge, Senior Division, Fast Track Couirt, Mathura in P.A. Case No. 7 of 2016, Baldeo and others Vs. Nizam and others has also been made.
The impugned order was passed in the execution proceedings pursuant to the application Paper no. 4Ga filed by the landlord herein under Section 23 of the provisions of U.P. Act No. 13 of 1972. In this execution proceedings an objection paper no. 10Ga was filed by the present petitioner herein on the ground that he is the tenant in the premises in question and is in actual possession of the property and the P.A. case and the P.A. appeal were allowed on the basis of fraud played by the respondent no. 1 herein Baldeo Shastri Chaturvedi and the respondent no. 2 herein Nizam and as such the same is not binding on the petitioner and he cannot be evicted pursuant to the impugned judgment and decree. His objections were rejected by the court below noticing the fact that am impleadment application was filed by the petitioner in the release proceedings, which was rejected and the same has become final.
Challenging the impugned judgment, submission of learned counsel for the petitioner is that in paragraph 11 of the impugned order it has been noted that it has been stated by the respondent no. 1 landlord herein that Nizam after entering into compromise in the lower appellate court has collusively handed over possession to the petitioner herein. Submission is that this assertion has been noticed but no finding has been recorded over the same as and when he took possession from Nizam and therefore, the impugned order is liable to be quashed. In support of his submissions, learned counsel for the petitioner has placed reliance on judgments of this Court rendered in the cases of (i) Satyendra Bajpai Vs. Addl. Judge, Small Causes (Ist) Court No. 18, Lucknow and others 2014 (1) ARC 110 and (ii) Rajan Bhatia Vs. Smt. Zohra Begum and another 2009 (3) AWC 3086.
Per-contra, learned counsel appearing for the respondent has submitted that Nizam was the original tenant and the impleadment application filed by the present petitioner herein Ballu before the Prescribed Authority was rejected and has become final. It was further pointed out that the impleadment application was filed on the basis of partnership deed between Nizam and Ballu wherein it has been specifically mentioned that the shop in question is in exclusive tenancy of Nizam. Submission, therefore, is that this is the own document of the petitioner herein and he cannot go out of the terms of the aforesaid document. Submission therefore, is that the original tenant Nizam entered into a compromise during appeal, however, he collusively handed over possession to Ballu. In such view of the matter, there was no illegality in the order impugned herein.
I have considered the rival submissions and have perused the record.
On perusal of record, I find that there is no dispute about the fact that on the basis of the aforesaid alleged partnership deed at page 62 of the paper book which contains the specific recital that Nizam is the tenant in the shop in question and the impleadment application filed by Ballu, the petitioner herein was rejected which has become final. I have also noticed the fact that P.A. case was filed in the year 2010 which was contested by Nizam and was decided after a gap of five years on 12.3.2015. Thereafter, the compromise had taken place on 22.9.2015 and the appeal was accordingly decided on 10.10.2015. When Nizam failed to deliver possession pursuant to the compromise, the landlord respondent no. 1 herein had to file an application under Section 23 of the Act wherein this objection was filed. I have also noticed the fact that in paragraph 14 of the release application it was specifically mentioned that Nizam is in habit of keeping sub-tenants off and on in the shop in question. In such view of the matter, it was very much clear that admitted position, even as per the alleged partnership deed between Nizam and Ballu is that the shop in question was in exclusive tenancy of Nizam in the release proceedings and during appeal. Apart from that the language of Section 23 of the Act is very much clear wherein it has been provided that it can be pressed into service against any other person found in actual possession. In paragraph 13 of the impugned order in such factual and legal background of the case the court below has found that there is no force in the objections of the petitioner herein and as such the objections were rejected. Therefore, it cannot be said that no finding was recorded on the assertion made in paragraph 11 of the judgment by the court below.
In so far as the judgments relied upon by the learned counsel for the petitioner is concerned, suffice to note that the facts and circumstances and the question of law involved such rulings were different and are clearly distinguishable. In the case of Satyendra Bajpai (Supra) the Prescribed Authority has decided the release application ex-parte without determining the question of tenancy and sub-tenancy and therefore, the matter was remanded back to the Prescribed Authority, which is not the position in the present case as in the present case the petitioner herein has admittedly moved impleadment application before the trial court and with the rejection of the same determination of his right in so far as tenancy is concerned stood decided. For the same reason ratio of Rajan Bhatia (Supra) is also not applicable on the present case.
I do not find any legal infirmity or jurisdictional error in the order impugned herein.
This writ petition is devoid of merit and is, accordingly, dismissed. No order as to costs.
Order Date :- 18.9.2018/p.s.