Heard learned counsel for the parties.
The respondent no.1, Smt. Snehlata filed an application for release under Section 21(1)(a) of U.P.Act No.13 of 1972 against respondent no.2 Sri Surendra Singh, the alleged tenant on 16.3.2004 which was registered as P.A. case no. 9 of 2004 inter alia with the allegation that she had purchased the disputed property through a registered sale deed dated 19.11.1999 from its erstwhile owner Tara Chand where the respondent no. 2 was in unauthorised occupation and when he was sought to be evicted he preferred O.S.No.285 of 2001 (Surendra Singh vs. Snehlata) inter alia alleging that he was a regular tenant and could not be evicted except in accordance to law. Though the petitioner earlier denied the status of the respondent no.2 as a tenant, but later accepted him as such and since the said Surendra Singh was not paying the rent etc. an eviction suit was filed, which is pending. It was further alleged that in her family apart from her husband who retired from Indian Air Force, she had two sons and one daughter. Both the sons are married while one has a daughter and the space available to them in their parental house was not sufficient for them and thus claimed release. Even after service of summons, the respondent no. 2 did not file any written statement but moved an application dated 1.7.2004 stating that he had already vacated the premises. However, it was objected to by the landlord and after considering the evidence on record, 2 the application was allowed vide order dated 28.5.2005. After the order had become final, the landlady instituted an execution case for execution of the release order but before the order could be executed, the petitioner preferred an appeal under Section 22 of the Act before the District Judge which was numbered as Rent Appeal no.1 of 2006 impleading the landlady and the respondent no.2 inter alia alleging that he was the owner and landlord of the disputed premises on the strength of a sale deed dated 29.6.2004 and in pursuance thereof, he was put into possession by the erstwhile owner Tara Chand and therefore the order of release is vitiated. The appellate court after examining both the sale deeds and the assessment and mutation orders and also considering the case disclosed by the petitioner in the criminal proceedings, dismissed the appeal vide order and judgment dated 29.7.2006. The petitioner thereafter preferred the connected Writ Petition No.46614 of 2006 challenging the release and appellate order but after contest the stay application was rejected vide order dated 28.8.2006. When the proceedings before the execution court proceeded further, the petitioner preferred his objection under Order 21 Rule 97 C.P.C. which has been dismissed by order dated 23.9.2006 and on the same day the executing court issued writ of possession. Both these orders are under challenge in the leading petition no.59022 of 2006.
When the petitioner set up a case of his own sale deed dated 29.6.2004, the respondent no.1 lodged an FIR under Sections 420, 467, 468, 471, 423 and 122B IPC on 23.8.2004 which was subjected to challenge by the petitioner in the connected Writ Petition No.6905 of 2004 which has already been disposed off on 13.9.2004.
Learned counsel for the petitioner has urged that there was a serious title dispute between the petitioner and the respondent no.1 and therefore the executing court cannot proceed further to execute the release order as the petitioner was in possession of the disputed property in his own right as owner.
Apart from the fact that this argument was also raised in the connected Writ Petition No.46614 of 2006, the stay application was rejected by this Court, the argument of the petitioner is against his own 3 admission made in Writ Petition No.6905 of 2004 and the executing court has taken full note of the conflicting stand taken by the petitioner. No doubt in proceedings under the Act, title cannot be decided, but incidently the Courts are bound to examine the question of title and until and unless it finds that the dispute is bonafide, it can proceed to decide the lis with regard to relationship of landlord and tenant. As noted while considering the facts, the respondent no.2 had admitted himself to be a tenant in his O.S.no.285 of 2001. The petitioner in the connected Criminal Writ Petition No.6905 of 2004 has set up a case to the following effect :
"6. That,it is also important to mention here that on 29.6.2004 the petitioner contacted one Indrapal for purchasing a house for Rs.1.00 lacs and he was shown the house in Berry Bagh. He was also told that Tarachand is the owner of the house and Sri Surendra Singh is the tenant of the house. On 26.6.2004, the petitioner agreed to purchase the aforesaid house for Rs.1,20,000/ and he had also paid Rs.5000/ in advance on 26.6.2004 and it was agreed that sale deed shall be executed on 29.6.2004 and balance amount shall be paid on the said date. On 29.6.2004, the petitioner met Tara Chandra who introduced his son Rajpal. Tara Chandra also told him that he has already executed a power of attorney in his favour and therefore,Rajpal will execute sale deed in his favour. Thereafter petitioners alsongwith Rajpal went to the Civil Court, Saharanpur and there the petitioner had paid Rs.1,15,000/ to Rajpal and Rajpal got the sale deed executed in favour of the petitioner no.2 Smt. Alka. A copy of the sale deed executed on 29.6.2004 shall be produced before this Hon'ble Court at the time of hearing of the present writ petition for the kind perusal of this Hon'ble Court.
7. That after execution of the sale deed, the petitioners came to know on 6.7.2004 that Rajpal is not the son of Tara Chand and he has been cheated by Rajpal and others and they have also illegally taken amount of Rs.1,20,000/ from him. The petitioner no.1 after coming to know of the cheating committed by Rajpal and others filed an application under Section 156 (3) Cr.P.C. In the court of learned C.J.M.Saharanpur on 7.7.2004 against Rajpal, Indrapal, Vipin Sharma, Shah Alam, Manoj Kumar, Parveen Kumar Garg, Ashok Kumar, Sirendra Singh and Tara Chand. On the application moved by the applicant under Section 156(3) Cr.P.C. Learned magistrate vide order dated 11.8.2004 treated the application filed by the petitioner as complaint case. A true copy of the application of the petitioner filed under Section 156(3) Cr.P.C. is being filed herewith and is marked as Annexure no.2 to this writ petition."
Thus, it is apparent that the petitioner himself has claimed that he has been cheated by the respondent no.2 and other persons mentioned in 4 the aforesaid quoted paragraphs. It is evident from the aforesaid averments that the alleged sale deed executed in favour of the petitioner is a void document and it will not transfer any right to the petitioner, unless held otherwise in appropriate proceedings. Thus, the argument of the learned counsel for the petitioner cannot be accepted.
No other point has been urged.
Accordingly, both the Writ Petitions No.59022 of 2006 and 46614 of 2006 are hereby dismissed.
In the circumstances of the case, no order as to costs.
Order Date : 2.4.2010 PKG 5 Hon'ble Devendra Pratap Singh,J.
Dismissed.
For order, see my order of date passed on the separate sheets.
Order Date : 2.4.2010 PKG Case : WRIT A No. 46614 of 2006 Petitioner : Raj Kumar Futela And Another Respondent : Smt. Snehlata And Another Petitioner Counsel : Pankaj Agrawal Respondent Counsel : Vikrant Pandey,Pankj Srivastava Hon'ble Devendra Pratap Singh,J.
Dismissed.
For order, see my order of date passed on the separate sheets of Writ Petition No.59022 of 2006.
Order Date : 2.4.2010 PKG