Heard learned counsel for the parties and perused the record.
This writ petition has been filed challenging the validity and correctness of the impugned judgment and orders dated 12.09.2006, 12.12.2006 passed by respondent no. 1, and order dated 25.09.2010 passed by Addl. District Judge, Kanpur Nagar, appended as Annexures-5, 7 & 8 respectively to this writ petition.
Learned counsel for the petitioner has submitted that the petitioner came into possession of a tenanted portion consisting of one room of House No. 8/175 Arya Nagar, Kanpur Nagar, prior to the year 1966. He further submits that there is various documents like driving licence and birth certificate which show that the petitioner has been living in the house in dispute since long. It is stated that one daughter born to him on 29.04.1972 establishes that petitioner was living as a tenant of one room and latrine since 1966 prior to enforcement of U.P. Urban Buildings (Regulation of Letting, Rent And Eviction) Act, 1972.
It is then submitted that one of other tenant Sri Tarkeshwar Prasad vacated his possession of one room and gave its possession to the petitioner. Therefore, accommodation of 2 store rooms, courtyard, verandah and latrine also came in possession of the petitioner since 1972. Thereafter, brother of the petitioner also had permitted the petitioner to reside with giving him possession of his one room to the petitioner alone. Accordingly, since July 1976, the petitioner began to pay his rent in his own name of two rooms. He has also appended rent receipts of two rooms as Annexure-3 to the writ petition, issued to him by the landlord.
The contention of learned counsel for the petitioner is that as the respondent-landlord wanted to enhance the rent of house in dispute, he demanded enhanced rent @ Rs.160/- per month and when the demanded rent was not paid, father of respondent no. 2, the landlord filed suit no. 501 of 1998: Hari Krishna Bajpai vs. Rajendra Nath Shukla in the court of J.S.C.C. Kanpur Nagar for arrears of rent and ejectment of the petitioner, whereby petitioner's tenancy is said to have been admitted. Subsequently, the suit was dismissed in default on 11.12.1998 and since then the same has not been restored. Thereafter, Sri Hari Krishna Bajpai expired and his legal heirs and representatives were not bring on record.
According to the petitioner as he had not challenged the vacancy order in any writ petition since the tenanted portion of the house in dispute was released in favour of the respondent, he has challenged the same in Rent Revision No. 90 of 2006 in the court of District Judge, Kanpur which was also dismissed vide order dated 25.09.2010.
In the aforesaid backdrop of the case, learned counsel for the petitioner has argued that it is evident from the record that the petitioner was found in the tenanted accommodation residing since 1966 along with his elder brother as observed by the courts below, but he came into possession of two rooms of his brother when he left the tenanted portion under his possession as well as one room which was already in possession of the petitioner before enforcement of Act No. 13 of 1972. According to the petitioner, the courts below have misinterpreted the evidence and as such the orders impugned are liable to be quashed.
Sri Prateek Sinha, appearing for the caveator has submitted that both the courts below have given concurrent findings of fact in favour of the landlord and held that the petitioner was not in occupation of the accommodation in dispute prior to 1966 as tenant or licensee. He has further submitted that in view of the fact that petitioner was not a licensee as has been observed by the courts below.
It appears that an application under section 21 (1) (a) of U.P. Act No. 13 of 1972 was filed by the landlord for rent and eviction of the petitioner which was rejected by the Rent Control & Eviction Officer on 12.09.2006 declaring vacancy in accommodation. The vacancy order, aforesaid, was challenged by the petitioner in Rent Revision No. 79 of 2006 in the court of the District Judge, Kanpur which was dismissed vide order dated 14.11.2006 on the ground of alternative remedy.
After hearing learned counsel for the parties, the relevant facts which emerges from the record are that both the courts below have held that brother of the petitioner was tenant prior to 1966 and the petitioner was residing with him as his guest in one room. When his brother left the tenanted portion, he illegally handed over the possession of the same to the petitioner his brother. The, petitioner also took possession of the accommodation of other tenant who left the building. These possessions have been taken by the petitioner after 1976 and when enhanced rent was demanded by the landlord, he refused to pay the rent on the ground that he is unable to pay enhanced rent. It also appears from the record that petitioner was not a tenant of Tarkeshwar Prasad in 1971-72 of the accommodation in dispute. As per record name of Tarkeshwar Prasad continued in the yearly assessments up to 1978-83. He was only a guest of his brother. The petitioner has not filed any allotment order showing allotment in his favour by the authority in accordance with the provisions of the Act to establish that he was a tenant of the portion legally under his possession. It is also not established by the petitioner that he was a licensee of the accommodation in question as neither the tenant who left their tenanted part has ever informed the Prescribed Authority about the vacancy nor the petitioner informed that he is licensee of the landlord in the accommodation in dispute. Thus, the respondent no. 1 had rightly declared the vacancy of accommodation under possession of the petitioner of which he had un-authorizedly came into possession admittedly, through other tenants. Documentary evidence such as driving license, birth certificate etc. do not establish that the petitioner was a tenant in the accommodation in dispute. These cannot prove that petitioner was under legal tenancy of accommodation in dispute. It is also apparent from perusal of record that tenancy of the petitioner was admitted by the landlord in suit no. 501 of 1988. The courts below on the basis of evidence on record have rightly come to conclusion that the petitioner failed to prove his case that he was a tenant as per the case set up by him.
For all the reasons stated above, I am of the view that there is no illegality or infirmity in the concurrent findings of fact recorded by the courts below.
The writ petition is, accordingly, dismissed with costs of Rs.2,00,000/- as the petitioner has been litigating the case since long by forcibly residing in the accommodation in dispute without payment of rent, damages since 1971-72 when he took illegal possession from his brother and thereafter other tenants. The petitioner shall handover peaceful and vacant possession of the accommodation in his possession to the landlord within two weeks.
Dated: 08.11.2010 RCT/-