Heard learned counsel for the parties and perused the record.
This writ petition has been filed by the petitioners challenging the validity and correctness of the impugned order and judgment dated 02.04.2009 passed by the Additional District Judge, Hathras in U.P.U.B. Appeal No. 16 of 2000, Vinod Kumar Chaturvedi Vs. Ramesh Chandra Sharma and others. The petitioners have also prayed for a direction to the Court below for rejecting the release application filed by the landlord registered as P.A. Case No. 53 of 1986 (Vinod Kumar Chaturvedi Vs. Ramesh Chandra Sharma and others).
The facts giving rise to the present case are that the Respondent no. 1 Vinod Kumar Chaturvedi filed release application before the Prescribed Authority, Hathras under Section 21 (i) (a) of U.P. Act No. 1972. The property sought to be released is a part of residential house defined by boundary given in the release application as follows:-
East:- House of Phoolchandra (Press Bala) West:- Courtyard of Vinod Kumar Chaturvedi North: House of Shankar Lal (Tailor) South:- Part of the house of Vinod Kumar Chaturvedi wherein Dharmvir is a tenant.
The case set up by the petitioner is that Smt. Har Pyari Devi was the owner and landlord of the house in dispute in which tenant/petitioner no. 1 Raj Kumar @ Rajjo (since deceased) was tenant on monthly rent of Rs. 45 per month. After his death, the tenant/petitioner no. 1/1 to tenant /petitioner nos. 1/7 have succeeded him as his legal heirs and representatives.
The petitioners' claim that Kali Charan S/o Har Prari Devi went missing as such the ownership of the accommodation in dispute devolved upon Smt. Saroj D/o Har Prari Devi. According to the petitioner, respondent no. 2 Ramesh Chandra Sharma S/o Raghu Nandan Sharma though had no concern with the property in dispute was set up by the respondent no. 1 for the purpose of filing of release application. That release application was filed by respondent no. 2 inter alia that the property in dispute has been letout to Sri Raj Kumar @ Rajjo i.e. the predecessor of the petitioners after parting with the possession by shifting to his own house situated at Gali Gangadhar. It was also stated that respondent no. 2 had not paid any rent/tax to Sri Vinod Kumar Chaturvedi who is said to have subsequently acquired this property in dispute consisting of two rooms and one kitchen while sale deed 07.05.1993 was executed by Smt. Saroj Devi D/o Har Pyari Devi.
When respondent no. 2, the predecessor of the petitioners came to know about the malafide act of filing release application, he moved an impleadment application dated 04.02.1998 bringing on record the correct facts to the notice of the Court alleging that there was no relationship of landlord and tenant between respondents no. 1 and 2 and that the petitioner was in fact the tenant of Smt. Har Pyari Devi and after her death, her daughter Smt. Saroj Devi. It may be noted here that Smt. Saroj Devi who is said to have moved an impleadment application dated 10.03.1988 inter alia that she had succeeded to the petitioner after death of her mother and there was no relationship of tenant and landlord between Vinod Kumar Chaturvedi and Ramesh Chandra Sharma. This application is appended as Annexure no. 3 to the writ petition. The application dated 04.02.1998 of the respondent no. 2 (Annexure no. 2 to the writ petition) was allowed by the court below vide order dated 22.02.1997 whereas the impleadment application of Smt. Saroj was rejected by the same order, which is appended as Annexure no. 4 to the writ petition, observing that there was no necessity to implead Smt. Saroj Devi as she had already executed the sale deed dated 07.05.1993 in favour of Vinod Kumar Chatruvedi and thereafter she did not remain the owner/landlord of the property in dispute.
Counsel for the petitioner has placed reliance paragraph no. 9 of the writ petition in which the order-sheet is quoted from 06.02.1986 up to 25.05.1987 and submitted that Ramesh Chandra Sharma i.e. respondent no. 2 neither contested the case and had not filed any written statement as he was in collusion with respondent no. 1 Vinod Kumar Chaturvedi nor ousted the petitioner from the accommodation in dispute as he was the sitting tenant.
According to the petitioner Ramesh Chandra Sharma had never contested the proceeding and as such the case has proceeded exparte against the original defendant. Thus the contention of the petitioner is that he was not a tenant of Vinod Kumar Chaturvedi but was the tenant of Har Pyari Devi and after her, Smt. Saroj her daughter and Kali Charan her son; that Smt. Saroj has executed a sale deed showing Kali Charna is a dead person and since there was no relationship between petitioners and respondent no. 1, the proceedings were not maintainable. Counsel for the petitioner had relied upon sub clause 1 to 8 of paragraph no. 21 of the writ petition assailing the order of the appellate court which read thus:
" 21. That the record of the case as well as the judgment of lower appellate Court would indicate that the property in dispute could not be released in the proceedings under Section 21 (1) (a) of the U.P. Act. The reasons are as follows:
(i)The respondent no. 1 claiming himself to be owner/landlord of the property had collusively filed the release application only against Ramesh Chandra Sharma i.e. the respondent no. 2 and had pleaded that the said defendant had sublet the property to Raj Kumar (wrongly mentioned as Rajendra Kumar) i.e. predecessor of the petitioners. Relationship of tenant and landlord was not pleaded by respondent no. 1 in his release application. As such, the release application was not maintainable.
(ii)As per the respondent no.1, the possession of Raj Kumar was illegal and unauthorized. Hence even if the case of respondent no. 1 is assumed to be correct though emphatically denied, it was a case of vacancy under the provisions of Section 12 of the Act or a case where a regular suit for dispossession should have been brought by him before the Civil Court. The respondent No. 1 had not approached the Prescribed Authority with clean hands and had collusively initiated the lis so much so that the Original Defendant never contested the proceedings nor did he file any written statement and the predecessor of the petitioners could make his submission only after he had been impleaded in the year 1997. The facts on record clearly establish a serious dispute of ownership between Smt. Har Pyari Devi, Kali Charan and Vinod Kumar Chaturvedi and, as such, the proceedings before the Prescribed Authority were not maintainable until and unless a clear title to the property could have been obtained by the respondent no. 1 from the regular Civil Court.
(iii)Although the Prescribed Authority rejected the impleadment applications of Saroj Devi and Kali Charan, it would be a case where no release was permissible in absence of Saroj Devi or even otherwise on the own findings recorded by the Prescribed Authority. The reason is that the impleadment of Saroj Devi was not found appropriate by the Prescribed Authority on the ground that Saroj Devi had executed a sale deed in favour of respondent no. 1 on 07.08.1993 and, as such, the respondent no. 1 had become owner of the property. If it is so, the release application filed in the year 1986 was absolutely not maintainable inasmuch as the respondent no. 1 acquired alleged ownership/land lordship in the year 1993 and not prior to that.
(iv)The rent receipts filed as Annexure no. 8 clearly prove and establish that there was a relationship of landlord and tenant between predecessor of petitioners and Saroj Devi and also between the predecessor of the petitioners and Kali Charan. Contrary observations are perverse. The learned Additional District Judge, Hathras has misinterpreted the law laid down by this Hon'ble Court with regard to maintainability of proceedings of release against an alleged subtenant. Interpretation to the correct position of law would be made at the time of hearing of the matter. Needless to say, when as per the applicant of the release application there was no relationship of tenant and landlord between him and the predecessor of the petitioners, the release application was not maintainable.
(v) The Appellate Court has not considered the comparative hardship of the petitioner. Admittedly there are dozens of persons in the family of the tenant who are residing in the two rooms of disputed accommodation. There are minor members as well as small kids who all are dependents on the earnings out of a small tea Khokha i.e. temporary tea stall as against the status of the petitioners who is owner of a number of buses which he plies to and fro Tourism places and evidence on record also establishes that he had been obliging the respondent no. 1 in his Tourism business.
(vi)Learned Additional Ddistrict Judge, Hadhras has failed to consider that the parties to the lis are ill matched and when in spite of their being some alleged need of one or two members of the appellant's, family release could not be made if the balance of comparative hardship tilted in favour of the tenant.
(vii)The lower appellate Court has wrongly and casually observed that the opposite party in the appeal had acquired his own property. As per the averments made in the release application, the word Vipakhsi had been used by the respondent no. 1 for Ramesh Chandra Sharma i.e. the respondent no. 2 who had in his own house Gali Gangadhar as that of the petitioners and not for the petitioners. The Additional District Judge, Hathras has committed perversity and illegality. A bare perusal of the release application would show that there was no pleadings with respect to bonafide need of the property in dispute and even otherwise the disputed accommodation, being a very small portion of a big residential house, the bogus need could not be satisfied at the cost of dispossession of dozens of members of the family of the tenant.
(viii)The learned Additional District Judge has not specifically dealt with the findings recorded by the prescribed authority and has vaguely observed that the property should be released."
Per contra, learned counsel for the respondents has submitted that in fact Har Pyari Devi was not original owner of the house in dispute. In fact it belonged to her mother Ram Pyari Devi from whom it was inherited by Smt. Har Pyari Devi (since deceased), to the exclusion of her two sisters Giriraj and Sukhdevi who did not claim any share therein. Thus Har Pyari Devi was the owner of the whole of the house in dispute.
It is stated that Kali Charan S/o Har Prari Devi has gone missing for more than seven years and therefore, his share came to Smt. Saroj Devi D/o Har Prari Devi his real and only surviving sister; that she executed sale deed dated 07.05.1993 of the house in dispute in favour of Sri Vinod Kumar Chaturvedi who purchased it. Though the petitioner claims to be a tenant of Har Prari Devi and after her death Smt. Saroj Devi and Kali Charan.
It is also alleged that Kali Charan who is said to have contested the application after the execution of sale deed is an impostor and the case is not a case of tenancy of the petitioner as tenant of Smt. Har Pyari Devi but is a case of sub tenant of Ramesh Chandra Sharma who had put him into possession before shifting to his own house.
After hearing the counsel for the parties it appears that the prescribed authority had rejected the release application of Raj Kumar vide order and judgment dated 24.11.2000. Thereafter, the Appellate Court has allowed the appeal no. 16 of 2000 filed by the landlord/respondent no. 1 holding that the petitioner is a sub tenant. The finding recorded by the appellate court are thus:
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It appears from record that proceedings against Ramesh Chandra proceeded exparte and he did not contest the case as he had shifted to his own house and having no interest in the case. The contention of the petitioner is that since he was not a party and was subsequently impleaded, release can not be granted against him as the petitioner was never treated as tenant of the respondent/landlord. Admittedly Sri Ramesh Chandra Sharma is said to be the tenant in the house against whom release application was filed is fallacious as a finding of fact has been recorded by the appellate court that Remesh Chandra Sharma had constructed his own house and shifted but while shifting at some point of time he inducted the petitioner as a sub tenant.
It is also admitted fact that the petitioner in his application for impleadment had stated that he is a tenant of the house in dispute consisting of two rooms and one kitchen for the last nine and ten years i.e. w.e.f. 1980 and that after the death of Har Pyari Devi he is the tenant of Saroj Devi. The application of the petitioner is dated 04.02.1998 it was allowed by the court below wherein he had stated that he was a tenant of the house in dispute for last 7 years, clearly establishes that the petitioner claimed tenancy in the house from about the year 1979. Thus, the claims can be said to be inducted in the year 1979-1980 and he cannot go beyond the pleadings in his application for impleadment, in which he has clearly admitted that he had become tenant after the enforcement of U.P. Urban Buildings (Regulation of Rating Rent Eviction) Act 1972.
On a query being made by the court from the counsel for the petitioner as to whether petitioner was tenant on the basis of any allotment order in his favour by prescribed authority according to the provision of the Act, the answer of the counsel for the petitioner is, No. Therefore, the petitioner was neither the tenant nor had occupied the house in dispute since before the enforcement of the Act No. 13 of 1972. The petitioner was not inducted in the house through Smt. Har Pyari Devi and after her Smt. Saroj Devi or Kali Charan Sharma as claimed by him rather appears to have been inducted by Ramesh Chandra Sharma the erstwhile tenant who while shifting to his own house had inducted the petitioner as a sub tenant The rent receipts filed alongwith the writ petition are said to have been executed by Smt. Saroj Devi, appended as Annexure no. 8 to the writ petition, were neither part of the record before the court below nor he produced any evidence hence this court can not consider these receipts as valid evidence for the purpose of holding him to be a tenant of Smt. Har Pyari Devi and after her daughter Smt. Saroj Devo.
Admittedly proceedings for release of house against Ramesh Chandra Sharma who is said to be the respondent and decree has been passed against him. A person who has been inducted illegally and unauthorizedly by erstwhile tenant, has no right to occupy any portion of the house under the occupancy of the erstwhile tenant. The petitioner has failed to establish any illegality in the order of the appellate court.
In my considered opinion, the appellate court has rightly affirmed the finding recorded by the prescribed authority who had recorded the finding that the petitioner was not a tenant of the accommodation in dispute even on his own showing appears that to be inducted in the premises in the year 1989-90 by the erstwhile tenant and his claim that he was tenant of Har Pyari Devi and after her of Smt. Sroj and Kalicharan is not proved from records and from the own showing of the petitioner himself from the impleadment application filed by him.
For all the reasons state above, the writ petition is accordingly dismissed.
The amount of Rs. 50,000/- deposited by the petitioner under order of this court dated 29.04.2009 shall be released in favour of the landlord/respondent no. 1 Vinod Kumar Chaturvedi towards use and occupation of the house in dispute by the petitioner within a period of one month from the date an application is made in this regard by the respondent/ landlord Vinod Kumar Chaturvedi. No orders as to costs.
Order Date :- 1.3.2011 YK