Heard counsel for the parties.
Anwar Ahmad, the respondent-landlord preferred a release application under section 21 (1) (a) and (b) of U.P. Act No. XIII of 1972 (here-in-after referred to as the Act) claiming that he had purchased the house no.665, Hatia Bahadurganj, Allahabad vide registered sale deed dated 2.12.1989 executed by its erstwhile owner Dosh Mohammad where late Gaus Mohammad was the original tenant but inducted one Shafi Ullah, the petitioner, as subtenant. It is alleged that the premises were purchased for his own use and occupation as he had a large family and had also to settle his son in business and further, the premises was in dilapidated condition which needed demolition and reconstruction but despite notice to vacate, the petitioner did not vacate it forcing him to file the application impleading Smt. Hafiza Khatoon wife of the original tenant. Smt. Hafiza Khatoon did not file any written statement but the petitioner preferred his objection, inter-alia on the ground that earlier the erstwhile owner had preferred a release application which had been dismissed and that he had been occupying the premises as a tenant since more than 45 years where he was carrying out his business of making Almirah etc. and neither Gaus Mohammad nor his wife had any connection with the said premises. It was further stated that the respondent-landlord had other premises available to him. Further, by amendment it was stated that the erstwhile owner had made a oral gift in his favour on 4.4.1989 and therefore the sale deed in favour of the Anwar Ahmad was void.
After the parties had led their evidence, the release application was partly allowed for a portion of the premises vide order dated 31.7.2006.
Aggrieved, both the parties preferred their respective appeals and both the appeals have been dismissed vide order dated 7.2.2009.
Writ petition no.12919 of 2009 has been preferred by Shafi Ullah the alleged tenant against that portion of the impugned order by which release has been allowed while writ petition no.14821 of 2009 has been preferred by Anwar Ahmad, landlord, against that portion by which the release has been refused for a portion of the disputed premises.
Learned counsel for Shafi Ullah in writ petition no.12919 of 2009 has firstly urged that there was no evidence to show that Hafiza Khatoon was ever resided in the disputed premises as a tenant and therefore the application for eviction under section 21 (1) (a) and (b) of the Act against the petitioner treating him as a subtenant was not maintainable and at best the respondents could have preferred an application under section 25 of the Act. In support thereof he has relied upon a decision of this Court rendered in the case of Smt. Suman Lata Vs. Prescribed Authority and others [1985 (2) ARC 454].
A perusal of the application would show that it was alleged that Gaus Mohammad was the original tenant and on his death, his wife Smt. Hafiza Khatoon stepped into his shoes and it was also alleged that Gaus Mohammad in his life time had inducted the petitioner as a subtenant and after his death, as he did not have any children, his wife Hafiza Khatoon started residing in her parental house. Thus, assuming she did not stay there, would be immaterial until it is proved that Gaus Mohammad was not the tenant. The petitioner had set up a case that in fact, he was in occupation of the disputed premises as a tenant and not as a subtenant for the last about 40-45 years. Therefore, even according to his admission, by operation of section 14 of the Act, he would become a statutory tenant under the Act as his possession would relate back to even before 1972.. Though, this argument was never raised in any of the courts below, once the petitioner admits himself to be the tenant, he cannot turn around and say that the application under section 21 (1) (a) of the Act is not maintainable. This argument cannot be accepted.
So far as the decision in the case of Smt. Suman (Supra) is concerned, it was entirely in a different context. As already observed above, in the release application itself, it was stated that Shafi Ullah was inducted as a subtenant much before the premises was purchased and the petitioner himself claims to be the tenant residing in the premises for the last 45 years. Therefore, also, the argument cannot be accepted.
It is then urged by the counsel for Shafi Ullah that since a title dispute before the Civil Court is pending, the court ought to have relegated the matter to it and it could not have decided upon the title.
No doubt, a title suit is pending but the question of title has not been decided by any of the courts below. The Courts below have taken into consideration the fact that throughout the proceedings for 8 years the petitioner continued to persist with his defence that he was a sitting tenant of the disputed premises and never raised any objection so far as the registered sale deed in favour of the respondent is concerned but after 8 years, he raised a plea that the premises was gifted to him through a oral Hibanama, which was of a much prior date of the sale deed. The courts below have rightly raised a doubt about the ostensible title being claimed by the petitioner. A Division Bench of this Court in the case of Ram Nath Mishra Vs. Prescribed Authority and others [1984 (2) ARC 227] has held that the authority under the Act would be under a legal duty to determine the question of title though incidently, to find out whether there is any relationship of landlord and tenant between the parties in proceedings under section 21 of the Act. This view was again reiterated by the Court in the case of Kirshna Chand Srivastava Vs. District Judge, Allahabad and others [1997 (31) ALR 54]. Though this would always remain subject to the decision in a title suit. Thus, this argument also cannot be accepted.
It is then urged that the disputed premises was a ramshackle roof structure which could not be said to be a building within the meaning of the Act and as such the application was not maintainable.
Though this point was never raised before the courts below, it is evident from the record itself and it is a case of the petitioner himself that it is a tinned roof structure, which is in a dilapidated condition, still 4 existing at the spot where the petitioner is running his manufacturing business. The Apex Court in the case of A. Satyanarayan Shah Vs. M. Yadgiri [2003 A.C.J. 597] has considered the term 'building' as used in several rent laws including the U.P. Act, and, after observing that the term 'building' has to be interpreted liberally and not narrowly, has gone on to hold that any structure having some sort of permanency and capable of being used for a residential or non-residential purpose, would be a building within the meaning of the Act. It went on to hold that any enclosure made even of mud or thatched hut or an enclosure of poles supporting a tin or asbestos roof would be a building within the meaning of the term. Therefore, this argument also fails.
Lastly, it is urged that though the application was also moved under section 21 (1) (b) of the Act for demolition and reconstruction, provisions of rule 17 of the Act were not satisfied and therefore the application could not have been allowed.
It is evident from the record and the finding recorded by both the courts below that the map has been sanctioned by the Development Authority and the evidence was led to show that the respondents had financial capacity to make the constructions. These findings on question of fact have not been shown to be perverse in any manner and therefore the argument is rejected.
So far as the writ petition no.14821 of 2009 is concerned, counsel for the petitioner, Anwar Ahmad has urged that both the courts below have carved out a totally new case on the basis of an earlier round of litigation between the landlord's predecessor and the tenant's predecessor. Though it was never pleaded by either of the parties that appurtenant vacant land was not in the tenancy of Shafi Ullah.
A perusal of the plaint shows that tenancy was asserted with regard to the entire premises. The tenant Shafi Ullah claimed that he was the tenant, including of the open land of premises no. 665, Hatia Bahadurganj, Allahabad. It is evident that the courts below have carved out a new case which was not pleaded by either of the parties. It was not a case of split tenancy but a composite tenancy which included the vacant land also. Therefore, the argument is bound to be accepted.
For the reasons hereinabove, no case for interference is made out in the writ petition no.12919 of 2009, which is hereby dismissed. For the reasons given above, the writ petition no.14821 of 2009 stands allowed and the judgement of the trial court and the appellate court to the extend that release for the vacant land has been refused, is set aside and the release application is allowed in total.
In the circumstances of the case no order as to cost.
Dated: 2nd April, 2010.
AU