JUDGMENT S.U. Khan, J.
1. The land over which shop in dispute is constructed belonged to a waqf. The mutwalli on 7.6.1954 executed a lease deed in favour of Ram Chandra Saxena, respondent No. 3, since deceased and survived by Legal Representatives, in respect of part of waqf land over which he constructed two shops-one was let out to Hiralal, the petitioner (i.e., shop in dispute) and the other shop was let out to another tenant, which has got no concern with the instant writ petition.
2. Ram Chandra Saxena respondent No. 3 filed release application under Section 21 of U. P. Act No. 13 of 1972 against the petitioner-tenant, which was initially numbered as Case No. 126 of 1975. Later on it was re-numbered as case No. 56 of 1979. The Prescribed Authority/City Munsif, Bareilly, decided the release application on 8.12.1979. Prescribed authority held that there was relationship of landlord and tenant in between the parties and that the need of the landlord Ram Chandra Saxena was bona fide. However, question of comparative hardship was decided in favour of the tenant, hence release application was rejected. Against the said judgment and order Ram Chandra Saxena filed Rent Control Appeal No. 39 of 1980. Vth Additional District Judge, Bareilly, on 28.11.1980 allowed the appeal, set aside the judgment and order passed by the prescribed authority and allowed the release application of Ram Chandra Saxena under Section 21 of the Act. The revisional court held that need of the landlord was bona fide as decided by the prescribed authority. The appellate court held that tenant had got alternative accommodation for running his business in the shop where his two sons were carrying on their business and they were residing with him. In any case, petitioner did not show that any efforts were made by him to search alternative accommodation after filing of the release application, hence also balance of comparative hardship was tilted against him as held by the Supreme Court in B. C. Bhutada v. G. R. Mundada . Accordingly, I hold that the findings of the lower appellate court regarding bona fide need and comparative hardship decided in favour of the landlord respondent No. 3 do not suffer from any error of law (bona fide need has been decided in favour of the landlord by both the courts below).
3. However, one more important point to be decided in this writ petition is as to whether petitioner still continues to be the tenant or has become owner or part owner of the shop in dispute. This point has very vehemently been argued by learned Counsel for the petitioner. This question arises on the following facts and circumstances.
4. On 2.4.1973 mutwalli of the waqf entered into an agreement with the petitioner to sell the land of the shop in dispute (superstructure was admittedly constructed by respondent No. 3 Ram Chandra Saxena). Thereafter in pursuance of the aforesaid agreement for sale registered sale deed was executed by mutwalli in favour of the petitioner on 6.5.1981 alter obtaining permission of the District Judge and Waqf Board. For cancellation of the said sale deed suit was filed by respondent No. 3, being O.S. No. 1471 of 1985. The suit was decreed in part on 8.12.1999 by Civil Judge (Junior Division), City Bareilly. Suit in respect of cancellation of the sale deed was dismissed. However, suit for injunction was decreed and it was directed that on the basis of lease deed dated 7.6.1954 no interference shall be made in the possession of the plaintiff. Against the said judgment and decree Mahendra son of original petitioner Hiralal (who has also been substituted at the place of the petitioner in the instant writ petition) filed Civil Appeal No. 9 of 2000. The said appeal was dismissed pn 1.5.2004 and against that judgment and decree a second appeal being Second Appeal No. 860 of 2004 has been filed in this Court, which is pending admission.
5. Learned counsel for the petitioner has argued that there is merger of interest and petitioner has become landlord/owner of the land over which shop in dispute is constructed, hence release application has become infructuous as he no more remains tenant after execution of the sale deed. In this regard two authorities of the Supreme Court have been cited. The first one is in Abdul Alim v. Sheikh Jamaluddin Ansari 1988 (2) ARC 614 (SC), and the other is in Imam Bee v. Aziza Bee 2001 (44) ALR 3 (SC). the second authority has followed the first authority. In both these authorities a co-owner and co-landlord had executed sale deed in favour of the tenants. The Supreme Court held that tenant had become co-owner, hence he could not be evicted under the decree/order passed in favour of the other co-landlord, as tenant himself had become co-landlord. Unfortunately, in the said authorities the question was not discussed in detail. Both these authorities are by two Hon'ble Judges. In M/s. India Umbrella Manufacturing Co. v. B. Agarwal , this question was thoroughly examined in the light of Section 111(d) of Transfer of Property Act. In the said case one of the two landlords had filed suit for eviction against the tenant without impleading the other co-landlords co-owners. During pendency of suit the other co-owner sold his share to the tenant. Supreme Court held that there was no complete merger, hence tenant continued to be tenant. The said authority is also by two Hon'ble Judges. In P. K. Jaiswal v. B. H. Bano 2005 AIR SCW 3240, three Judges Bench of the Supreme Court approved the aforesaid authority of M/s. India Umbrella Manufacturing Co, (supra) and over-ruled an earlier authority of 1969 taking a contrary view. It is, therefore, clear that unless merger is complete, tenant continues to be the tenant. In the instant case also the said principle can be applied for the reason that merger was only in respect of land. What was let out to the petitioner by respondent No. 3 was a shop, which includes land as well as superstructures. As petitioner has not become owner of land as well as superstructures, hence it cannot be said that there is total merger of interest. In this regard reference may also be made to T. Laxmipathi v. P. N. Reddy . This authority has also been approved in P. K. Jaiswal's authority. Accordingly, in my opinion, release application is still maintainable and the order passed by the appellate authority on the release application in favour of respondent No. 3 still holds good. The Supreme Court in N. Sainuddin v. K. Sulaiman , also approved in P. K. Jaiswal (supra) has held that if a subtenant has purchased the entire property, including the property in his possession as well as in possession of the chief tenant, then he becomes owner and smaller estate of subtenancy is sunk or drowned in the larger estate of ownership. In the said authority it has also been held that sub-tenant, after purchasing the entire tenanted accommodation from the owner landlord, can file suit for eviction against chief tenant, as after sale he (chief tenant) becomes his tenant.
6. In the instant case, the sale deed was only of land. Superstructure did not belong to the owner of the land, hence neither he could sell it nor in fact he sold it. Accordingly, even though petitioner is liable to eviction, in pursuance of impugned judgment, however, after eviction he is entitled to file a suit against respondent No. 3 (Both terms include their legal representatives) for eviction on the basis of deed of 1954. If landlord mutwalli had been entitled to evict respondent No. 3 in terms of the lease deed of 1954, then petitioner would also be entitled to evict respondent No. 3.
7. With the above observations the writ petition is dismissed.
8. Tenant-petitioner is granted six months time to vacate provided that within one month from today he files an undertaking before the trial court to the effect that on or before the expiry of six months, he will willingly vacate and hand over possession of the accommodation in dispute to the landlord-respondent No. 3. For this period of six months he shall deposit Rs. 3,000 (at the rate of Rs. 500 per month) as damages for use and occupation within one month before the trial court for immediate payment to the landlord-respondent. In case of default in compliance of any of these conditions, tenant-petitioner shall be evicted after one month through process of court.
9. It is further directed that in case undertaking is not filed or Rs. 3,000 are not deposited within one month then tenant-petitioner shall be liable to pay damages at the rate of Rs. 1,000 per month since after one month till the date of actual vacation.
10. Similarly if after filing the aforesaid undertaking and depositing the aforesaid amount the accommodation in dispute is not vacated within the time allowed (i.e., six months) then damages for use and occupation shall be payable at the rate of Rs. 1,000 per month since after six months till actual vacation.