Heard learned counsel for the parties and perused the record.
This writ petition has been filed by the petitioner at interlocutory stage whereby the courts below rejected the objection (paper no. 4-ga) filed by the petitioner vide judgment and order dated 13.9.2010.
The brief facts of the case are that the landlord-respondent no. 2-Dipendra Kumar Gupta filed release application under section 21 (1) (a) and 21 (1) (d) of U.P. Act No. 13 of 1972 with regard to the disputed premises. Release application was contested by tenant-respondent no. 3 by filing objection dated 16.4.2002. Rejoinder to the said objection was also filed by landlord-respondent no. 2. After evidence etc. had been adduced, the Prescribed Authority/Civil Judge (Junior Division) East Court No. 12 Ballia allowed the release application filed by the landlord-respondent no. 2 vide judgment and order dated 3.2.2007. Aggrieved by the order aforesaid, the tenant-respondent no. 3 preferred an appeal before the appellate authority which was registered as Rent Control Appeal No. 33 of 2007. Along with memo of appeal, an application for staying effect and operation of order dated 3.2.2007 was also moved by the tenant against which landlord-respondent no. 2 has filed objection. It appears that on 23.5.2007 the landlord-respondent no. 2 gave an undertaking that he will not pursue the execution of the order passed by the prescribed authority and as such no such order was passed on the stay application. It also appears that during pendency of appeal, the tenant-respondent no. 3 filed an application on 31.7.2007 for appointment of an Advocate Commissioner for the purpose of preparation of map regarding constructions raised by the landlord-respondent no. 2 on the first floor of the house in dispute. Objection to the said application was filed by the landlord-respondent no. 2 on 1.8.2007. The appellate court vide judgment and order dated 16.8.2007 decided for getting the map prepared in the case and then for consideration of application dated 31.7.2007.
In the meantime, the tenant-respondent no. 2 filed an amendment application proposing to amend the objections dated 16.4.2002 to the release application. Landlord-respondent no. 3 also file his objection dated 1.9.2007 to the amendment application dated 23.8.2007. The appellate authority rejected the amendment application by order dated 6.9.2007.
Aggrieved by the order dated 6.9.2007, the tenant-respondent no. 3 filed civil misc. writ petition no. 45844 of 2007 which was allowed by this Court on 24.9.2007. The relevant portion of the said order is as under:
"The petitioner shall not be permitted to file any application or additional evidence apart from the application for Commission, which is already pending. It is further directed that appeal shall be decided very expeditiously and until decision of appeal, tenant-petitioner shall not be evicted from the property in dispute provided that w.e.f. September, 2007, onwards he deposits rent before the Appellate Court @ Rs.500/- per month by 7th of each succeeding month for immediate payment to landlord-respondent. In case of default stay order shall stand automatically vacated.
The Court further held that this direction is being issued in view of the Supreme Court authority of Atma Ram Prosperties Vs. Federal Motors reported in 2005 (1) SCC 705."
Consequently, the amendment was incorporated in the objection filed by tenant-respondent no. 3 and during pendency of appeal an Advocate Commissioner was appointed to submit a map with regard to spot position pertaining to the disputed premises. Thereafter, the appeal filed by the tenant-respondent no. 3 was dismissed on 3.4.2008. Subsequent to the said judgment, the landlord-respondent no. 2 filed an application on 16.4.2008 for execution of the orders passed by the Prescribed Authority as well as Appellate Authority which was numbered as P. A. Execution Case No. 03 of 2008: Dipendra Kumar Gupta Vs. Rameshwar Nath Dubey.
Aggrieved by orders dated 3.4.2008 passed by the appellate authority as well as order dated 3.2.2007 passed by the prescribed authority, the tenant-respondent no. 3 filed C.M. Writ Petition No. 22606 of 2008: Rameshwar Nath Dubey Vs. The A.D.J. Court No. 2, Ballia and others which was dismissed by this Court on 7.5.2008.
In the aforesaid backdrop during pendency of execution case no. 03 of 2008, the petitioner filed objection dated 2.2.2010 under section 23 of the U.P. Act No. 13 of 1972 along with stay application dated 2.2.2010. Along with the aforesaid objection, the petitioner also filed evidences vide list of documents dated 4.2.2010 which was registered as Misc. Case No. 10 of 2010: Jitendra Tiwari V. Dipendra Kumar Gupta and others.
In support of his case, the petitioner filed affidavit by way of evidence and also examined as witness namely Sri Shiv Sagar Sharma. Thereafter, landlord-respondent no. 3 filed objection dated 2.4.2010 to the objection dated 2.2.2010 and petitioner also filed rejoinder affidavit to the objection filed by the landlord-respondent no. 2.
It is then that respondent no. 2 Dipendra Kumar Gupta filed C.M. Writ Petition No. 46205 of 2010: Dipendra Kumar Gupta V. Civil Judge and another, which was finally disposed of vide order dated 6.8.2010, whereby the court below was directed to execute the release order within a period of one month from the date of submission of the certified copy of the order dated 6.8.2010.
The judgment and order dated 6.8.2010 is as under:
"Heard learned counsel for the parties.
This petition by the landlord has been filed for a mandate to the Prescribed Authority to execute the order of release.
It appears that the petitioner landlord had preferred a release application no. 3 of 2000 for release of the disputed accommodation under Section 21(1)(a) of U.P. Act No. 13 of 1972 before the Prescribed Authority. After contest the release application was allowed vide order dated 3.2.2007 against which a resultant appeal no. 33 of 2007 was also rejected vide order dated 3.4.2008. Both the orders were subjected to challenge in Writ Petition No. 22606 of 2008 which was also dismissed by a detailed order dated 7.5.2008. Thereafter the petitioner filed an execution application on 16.4.2008 which was registered as execution case no. 3 of 2008 after depositing a sum of Rs. 7200/- as two years rent in view of the condition imposed in the release order but the tenant has been able to delay the execution.
If the aforesaid facts are correct, the Prescribed Authority is directed to execute the release order within a period of one month from the date of submission of a certified copy of this order and any adjournment sought by the tenant would not be granted except after imposing a cost of not less than Rs. 2500/- on each adjournment.
Subject to the aforesaid observation, this petition is finally disposed off."
Consequently, the Prescribed Authority/Civil Judge (Junior Division), Ballia vide order dated 21.8.2010 directed to re-submit report as well as the map regarding premises in dispute. The court amin in response to the said direction conducted inspection on 1.9.2010 and submitted his report along with map of the disputed premises on 3.9.2010.
For ready reference report of court amin dated 3.9.2010 is quoted below:
"mijksDr eqdnesa esa eS fnukWd 1-9-2010 dks lk0 eqgYyk tkifyuxat 'kgj cfy;k esa Jheku ds vkns'k ds vuqikyu esa uksfVl nsus vf/koDrk ds i'pkr ekSdk ij iWgqpkA tgkW ij vkifRrdrkZ ekSds ij ekStwn feykA rFkk foi{khx.k ekSds ij ugh feysA foi{kh dh iRuh feyh mlus crk;k fd esjs ifr dgh x;s gSA rRi'pkr vkifRrdrkZ us fookfnr dksBjh dk rkyk [kksyk ftlesa nks vnn pkSdh pkj vnn dqlhZ xkMh dk yksgs dk lkexzh rFkk nksa vnn yksgs dk ckYVh ,d vnn ikuh ihus okyk feVVh dk ?kMk nks vnn fxykl ,d vnn tx IykfLVd dk dksBjh ds vUnj eSkstwn feykA rRi'pkr dksBjh dk ekSdk iSekb'k izkjEHk dj lekIr fd;kA iSekb'k ds vk/kkj ij eSus ,d Ldsyh uD'kk% 1- 10 nl QhV iSekuk dh nwjh ij rS;kj fd;k gSA ekSds ij tks pht tgkW ikbZ xbZ rFkk ftldk crk;k x;k mls uD'kk esa 1&1] 2 2=5-3-4-6 ls ,oa dksBjh ls ckgj fudys dk jkLrk dks ftl vad 1&7&8=2 ls yky jks'kukbZ ls fpfUgr dj fn;k gS A ftlesa -- 7=8 ij IykfLVd dk frjiky dk inkZ yxk gqvk fdykA ftlesa 2&5&3 ij rhu vnn f[kMdh rFkk rhu vnn jks'ku nku ekStwn feyk rFkk dksBjh ds Nr ij nks (2) vnn yksgs dk xkVj yxk gqvk gSA vkifRrdrkZ us ekSds ij crk;k fd foi{khx.k fdjk;s ij jgrs gSA ekds ij vU; dksbZ ckrs mYys[kuh; ugh crk;h x;hA uD'kk esa nh xbZ nwfj;ksa dk fooj.k uD'kk ij gh vafdr gSA vr% fjiksVZ uD'kk fQYM cqd e; ijokuk Jheku dh lsok esa mfpr vkns'kkFkZ iszf"kr gSA"
Against the report submitted by the court amin, petitioner filed his objection dated 8.9.2010. The Prescribed Authority, thereafter, rejected the report and the map submitted by the Court Amin (paper no. 41 Ga and 42 Ga) vide order dated 8.9.2010.
In these circumstances, the petitioner appears to have moved application dully supported by an affidavit praying therein that the court may itself conduct on spot inspection or get the same conducted by a senior advocate, but no order was passed by the Prescribed Authority on the aforesaid application and ultimately by order dated 13.9.2010 the objection (paper no. 4-Ga) filed by the petitioner was rejected which is impugned in the present writ petition on the ground that petitioner-objector claims himself to be owner of the property in dispute whereas dispute on release application is between the landlord and the tenant and that the court has no jurisdiction to decide the question of ownership in the proceedings under section 23 of the Act. As such he may file suit for determination of legal right of ownership.
The finding of the trial court are thus:
"lquk ,oa i=koyh dk voyksdu fd;kA i=koyh ds voyksdu ls ;g fofnr gS fd vkifRrdrkZ }kjk izLrqr i=koyh esa tks lk{; izLrqr fd;s x;s gss og LokfeRo ds lEca/k esa gS tc fd izLrqr eqdnesa esa LokfeRo dk fookn ugh gSA edku ekfyd o fdjk;snkj dk fookn gs vkSj ;fn og mDr fookfnr lEifRr dk Lokeh jgk gS rks mlds }kjk mDr LokfeRo dks mn?kksf"kr djkus gsrw ewy okn izLrqr fd;k tkuk pkfg, FkkA m0 iz0 'kgjh Hkou vf/kfu;e [email protected] dh /kkjk 23 esa LokfeRo dk fu.kZ; fd;s tkus dk dksbZ izko/kku ugh gS cfYd /kkjk 23 esa ;g izko/kku gS fd fu;r vf/kdkjh fdlh ,sls fdjk;snkj dh csn[kyh djus ds fy, ftuds fo:} ;FkkfLFkfr /kkjk 21 ds v/khu ;k 22 ds v/khu mijksDr izdkj vkns'k fn;k tkos ;k fdlh ,sls vU; O;fDr ds fo:} tks oLrqr% v/;kflr ik;k tkos vkSj edkunkj dks dCtk fnykus ds fy, ,sls cy dk iz;ksx dj ldrk gS ;k mijksDr lk{; izys[kh; lk{; ,oa ekSfd[k lk{; ls ;g Li"V gS fd izLrqr okn esa LofeRo dk fu.kkZj.k ugh gksuk gS rFkk ;fn vkifRrdrkZ dks dCtk esa eku fy;k tkos rks /kkjk 23 esa Li"V izko/kku gS fd fdjk;snkj ;fn dksbZ vU; O;fDr feys rks cy iz;ksx djds fookfnr edku ;k nqdku dks [kkyh djk;k tk ldrk gSA ,slh fLFkfr esa mDr izkFkZuki= ek= /kkjk 23 ih0 ,0 okn la0 [email protected]08 nhisUnz cuke jkes'oj esa ikfjr fu;r izkf/kdkjh vihy; U;k;ky; ,oa ekuuh; mPp U;k;ky; ds vkns'k dks foQy djus gwr izLrqr fd;k x;k gSA vkifRr cyghu gS Lohdkj fd;s tkus ;ksX; ugh gS [kkfjr fd;s tkus ;ksX; gSA"
Learned counsel for the petitioner has relied upon paragraph 4 of the judgment rendered in the case of Chhakki Lal Vs. III Additional District Judge, Mainpuri and others reported in 1977 (U.P.) R. C.C. 39. Paragraph 4 of the said judgment is as under:
"In my opinion, in proceedings under section 23 for enforcement of an eviction order if any person other than the person against whom an order of eviction has been passed, claims to be in possession, the nature of his possession would have to be enquired into. If it is shown by such person that he is occupying the accommodation in his own right for instance as a tenant, he cannot be evicted by enforcing an order to which he was not a party. On the other hand, if his possession is only on behalf of the tenant against whom the order for eviction has been passed for instance as a sub-tenant within the meaning of section 25 (1) of the Act or as a licensee, such person can be evicted under section 23 while enforcing the eviction order passed against the tenant. I wish to make it clear that I am not expressing any opinion in regard to a sub-tenant to whom sub-section (2) of section 25 of the Act is applicable because in the instant case that question does not arise".
Amin report has already been rejected by the court below and petitioner-objector has not at all been able to prove that he is occupying accommodation on his own right . Admittedly, he claims himself to be owner. The question before the court below was as to who is in occupation of the premises in dispute. Mere opening of lock would not establish possession of any person occupying the premises in dispute. For a person it is also necessary to prove that he is not only living in the accommodation in dispute but also the goods therein are. In any case, the report of Court Amin has been rejected by the court below, hence the case of Chhakki Lal V. Addl. District Judge (supra) relied upon by him does not come to his aid.
In view of the above, I am of the considered opinion that the court below has rightly come to the conclusion that the petitioner/objection may get his rights regarding possession and ownership decided by filing a suit to prove his possession and title of the disputed premises. It may also be noted that the tenant also appears to have not taken any plea in support of the petitioner/objector stating therein that petitioner/objector is owner of the accommodation in dispute, therefore, he cannot be said that the tenant also recognizes the petitioner as owner of the house.
In the circumstances, I am of the view that the courts below have not committed any illegality or infirmity in rejecting the report and map submitted by the Court Amin (paper no. 41-Ga and 42 Ga) on the ground that he has to get decide his right by filing a separate suit.
The writ petition is, accordingly, dismissed.
Dated: 21.9.2010 RCT/-