Heard learned counsel for the parties and perused the material on record.
Sri Manoj Kumar s/o Suraj Prasad, Resident of 15/17, respondent no. 5 in the writ petition moved an application before the Rent Control Eviction Officer /Additional City Magistrate-V, Kanpur Nagar under Section 12 of the U.P. Urban Buildings (Regulation of Rating Rent Eviction) Act 1972 here in after referred to as the Act No. 13 of 1972.
It was alleged in the application that the accommodation in disputed has become vacant, hence proceedings were initiated on it, which was registered as Case No. 17 of 2007. The Rent Control Eviction Officer, respondent no. 2 declared vacancy in respect of the accommodation in dispute vide order dated 31.10.2008 and by means of his order dated 15.12.2008 released the accommodation in favour of the owners Smt. Maya Devi and Sri Sanjay Kumar Singh.
Aggrieved by the aforesaid orders, the petitioner preferred Rent Revision no. 16 of 2009, Smt. Ram Pyari Devi Vs. Rent Control Eviction Officer and others under Section 18 of the Act No. 13 of 1972 alongwith an application under Section 5 of the Indian Limitation Act.
The Additional District Judge, Court no. 2 by his judgment dated 14.05.2009 rejected the revision aforesaid in which the petitioner had challenged the order dated 31.10.2008 and the releasing order dated 15.12.2008.
The petitioner has challenged the validity and correctness of the impugned order dated 31.10.2008 and 15.12.2008, appended as Annexure nos. 2 and 3 to the writ petition, praying for quashing of the aforesaid order dated 14.05.2009, (appended as annexure no. 5 to the writ petition); order dated 15.12.2008 (Annexure no. 3 to the writ petition) and order dated 31.10.2008 (appended as Annexure no. 2 to the writ petition) passed by the respondent nos. 1 and 2.
The contention of the learned counsel for the petitioner is that the orders impugned are illegal on the facts and circumstances and the courts below has erred in law in relying upon the inspector's report which was arbitrary, unjust and illegal. It is stated that the findings have been recorded by the courts below that Ram Sewak Singh was inducted as tenant by the landlord in the year 1977 whereas the possession of Ram Sewak Singh as a tenant of the accommodation in dispute was much prior to 1976. Reliance has been placed upon certain rent receipts filed along with supplementary affidavit, which is said to have been issued by one Radhey Shyam Gupta on behalf his father Heera Lal Gupta who is said to be the land lord of the accommodation in dispute under the tenancy of Ram Sewak Singh. These original receipts, which have been appended alongwith supplementary affidavits as Annexxure no. 1 do not show that they have been issued on behalf of landlord Deve Dayal Gupta. Moreover, one similar receipt which has been appended as part of Annexure no. 1 and is dated 07.08.1963 was not filed before the Rent Control Eviction Officer. This receipt was subsequently brought on record and was filed before the revisional court and rejected by its order dated 12.05.2009, which is appended as Annecture no. C.A.-1 to the counter affidavit, on the ground that the revisional court does not have power to take additional evidence.
Sri D. P. Singh learned counsel for the petitioner assailing the order of the courts below has argued that the courts below have erred in holding that the petitioner has failed to prove to the fact that she is niece of Ram Sewak Singh. According to the order, this finding is apparently perverse as it has been passed ignoring the documents filed on behalf of the petitioner, i.e., nomination paper by which Ram Sewak Singh had nominated Smt. Ram Pyari Devi as his niece for receiving the benefits of service.
It is stated that there was enough evidence on record to show that Ram Sewak Singh was the tenant of the premises in question at least w.e.f. 01.06.1996, which is apparent from the original receipt filed by the petitioner prior to enforcement of Act No. 13 of 1972.
He lastly argued that the family tree of the petitioner is given in paragraph no. 10 of the writ petition as under:
Shiv Singh Son Son Ram Sewak Singh Devi Daya Singh @ Chiddu Singh (Died) Died) Gyan Prakash Ram Pyari (Son) (Daughter) On the basis of the aforesaid family members, the counsel for the petitioner argued that from the facts and evidence on record it is apparent that Ram Sewak Singh was tenant of the premises in question at least w.e.f. 06.07.1963; that Gyan Prakash was the real nephew and the petitioner Ram Pyari was real niece of tenant Ram Sewak Singh and that the petitioner Ram Pyari was married but a deserted woman and as such she was living with Ram Sewak Singh in his house who had appointed her as nominee as far back back as on 16.07.1977.
It is urged that the tenancy of Ram Sewak Singh shall be deemed to have been regularized in favour of the petitioner by virtue of Act No. 13 of 1972 and contrary view taken by the courts below is unsustainable and erroneous in law as it is proved that the petitioner was residing with Ram Sewak Singh at the time of his death and as such she will be deemed to be a tenant within the Section 3 (a) of the U.P. Act no. 13 of 1972. Hence the premises in question can not be said to be vacant within the meaning of Section 12 of Act No. 13 of 1972. It is stated that the status of the petitioner as a tenant within the meaning of Section 3 (a) of the Act No. 13 of 1972 is independent of the status of her brother Gyan Prakash.
Counsel for the petitioner in support of his contention that a niece is covered by Section 3 (a) of U.P. Act no. 13 of 1972, has relied upon the judgment rendered by this Court in Smt. Rukmini Vs. 3rd A.D.J. Kanpur and others , Allahabad Rent Cases page 72.
Per contra learned counsel for the respondent Sri Atul Dayal has submitted that no evidence was filed before the Rent Control Eviction Officer to the effect that Ram Sewak Singh was a tenant in the accommodation in dispute prior to 1976. He submitted that the contention of the petitioner that Ram Sewak Singh was a tenant in the year 1965 is incorrect. The Rent Control Eviction Officer, respondent no. 2 has recorded a categorical finding that Ram Sewak Singh was living in a portion under the tenancy of U.P. Coperative Bank situated in D.A.V. College compound where he was working as as guard up to 15.07.1974. A receipt in this regard had been filed by the petitioner in the court below as evidence. As regards the question as to whether the petitioner Smt. Ram Pyari Devi was the niece of Ram Sewak Singh is concerned, he has relied upon the following findings of the Rent Control Eviction Officer/Additional City Magistrate-Vth, Kanpur Nagar:-
"bl laca/k esa izkFkhZ vkoaVu eukst dqekj o x`g Lokeh dk dFku gS fd Jherh jke I;kjh nsoh o Kku izdk'k flag Lo0 jke lsod flag ds Hkrhth o Hkrhtk Hkh ugha gS vkSj jke lsod flag ds ifjokj ds lnL; o mRrjkf/kdkjh Hkh ugha gSA D;ksafd foi{kh o mlds HkkbZ Kku izdk'k flag ds firk dk uke nsoh n;ky flag gSA tSlk fd foi{kh ds 'kiFk i= o odkyrukesa esa Loa; mlds }kjk fy[kk x;k gS rFkk izkFkhZ vkoaVu eukst dqekj ds }kjk vius 'kiFk i= fnukafdr 3-4-2008 ds lkFk ernkrk lwph xzke csFkj ftyk mUuko dh Nk;k izfr 2005 o 2007 layxu 1 o 2 ds :i esa nkf[ky dh x;h gS ftlesa nsoh n;ky flag ds firk dk uke Qwy flag n'kkZ;k x;k gSA tcfd jke lsod flag ds firk dk uke f'ko flag gS tks fd foi{kh }kjk nkf[ky jke lsod flag ds e`R;q izek.k i= esa fy[kk gSA ftlls Li"V gS fd nsoh n;ky flag jke lsod flag ds HkkbZ ughsa FksA ;fn nksuksa HkkbZ&HkkbZ gksrs rks nkksuksa ds firk dk uke ,d gh gksrk u fd vyx&vyx gksrkA tSlk fd mijksDr nLrkostksa ls Li"V gSA bl izdkj foi{kh Jherh jke I;kjh nsoh o mldk HkkbZ Kku izdk'k flag jke lsod flag ds lxs Hkrhts o Hkrhth Hkh ugha gS vkSj jke lsod flag }kjk Jherh jke I;kjh nsoh dks dqN dkxtkrksa esa viuh Hkrhth fy[kk nsus ek= ls og Hkrhth ugha gks tkrh vkSj u gh og bl izdkj Lo0 jke lsod flag ds ifjokj dh lnL; gS vkSj u gh mldh mRrjkf/kdkjh gSA""
A perusal of the findings shows that the Rent Control and Eviction Officer has come to a finding on the basis of evidence adduced by the parties that name of father of Deve Dayal Singh who is said to be brother of Ram Sewak Singh, as per record, was Phool Singh, whereas the name of father of Ram Sewak Singh is Shiv Singh. Accordingly if Ram Sewak Singh and Devi Dayal Singh would have been real brothers or would have been common descendants their parentage would have been same but as it is not the family tree relied upon by the petitioner is incorrect.
It is submitted on the basis of above arguments that merely because a person is nominated to receive retrial benefit etc. of service of another person, would not necessary mean he or she is related so as to tenancy may devolve upon him or her. Therefore the claim of the petitioner that she is real niece of Ram Sewak Singh against the record.
Sri Atul Dayal learned counsel for the respondent further argued that Smt. Ram Pyari Devi has herself claimed to be a joint tenant with Ram Sewak Singh and her brother Gyan Prakash Singh and even if this statement of Smt. Ram Pyari Devi is presumed to be correct even then her brother Gyan Prakash Singh has left the premises and had been posted out as Medical Officer at Lucknow which is apparent from her averment in the objection dated 24.09.2010 and affidavit dated 10.01.2008 and in the circumstances vacancy would be deemed in view of provision of Section 12 (3) (a) of the Act. He has relied upon judgment reported in ARC 1995 (1) 220, Harish Tanton Vs. A.D.J. Allahabad and others in this regard.
After hearing counsel for the parties and on perusal of the record, it is apparent that the courts below have come to a conclusion that the petitioner had not proved by any evidence that Ram Sewak Singh was a tenant in accommodation in dispute since 1963 as claimed by her. Rather the courts below have been given concurrent findings of fact that according to Ram Sewak Singh with whom the petitioner claims to be living was intact living in a portion under the tenancy of U.P. Cooperative Bank situated at D.A.V. College compound, Kanpur Nagar. This portion was provided to him by the bank for performing duties as guard. The revisional court has rejected the rent receipt filed by the petitioner to establish that Ram Sewak Sing was a tenant in the accommodation in question at least from the year 1963. In the circumstances, the petitioner has came up in the writ petition challenging the validity and correctness of the orders impugned and has tried to bring on record some more rent receipts as additional documentary evidence before the High Court in writ petition under Article 226 of the Constitution of India. These receipts cannot be accepted in writ petition at this stage for the reason that every documentary evidence has to be proved by oral evidence until and unless it is a public document or a document, the formal proof of which may have been dispensed with by the other party. In these facts and circumstances, this court cannot rely upon the rent receipts filed by the petitioner as additional evidence for the aforesaid reasoning as well as for the reason that revisional court has also rejected the application of the petitioner to accept similar rent receipts on record.
The courts below have recorded a concurrent finding of fact on the basis of evidence to the effect that the petitioner was not the niece of Ram Sewak Singh or a male lineal descendant to fall within the meaning of the definition of family in Section 3 (g) of the Act No. 13 of 1972. Though Niece has been mentioned in scheduled 2 of Section 14 of The Hindu Succession Act which is a Special Act for the purpose of succession whereas Act No. 13 of 1972 is a Special Act governing procedure for letting, rent and eviction and relationship of landlord and tenant is defining with regard to devolvement of a tenancy under this Act. The provision of U.P. Urban Buildings (Regulation of Letting Rent and Eviction) Act 1972 being Special Act, in this regard, will prevail over the provision of Hindu Succession Act.
For all these reasons, the writ petition is dismissed with direction to the tenant to vacate the premises in dispute and to hand over its peaceful possession to the landlord within a period of three months from today subject to condition that he continues to pay the landlord Rs. @ 2000/- per month. The landlord shall also be entitled the payment of the amount @ 2000/- per month towards rent which has been deposited by the petitioner in the court below admittedly in an incorrect account number as directed by the High Court on his application being made before the appropriate Court/Authority. The petitioner is allowed three months' time to vacate the accommodation in dispute In default of payment or in case of failure of the petitioner to vacate the accommodation in dispute the landlord would be at liberty to get it vacated in accordance with law and in that event the tenant would pay Rs. 6000/- per month as damages for use and occupation as unauthorized occupant, till date actual vacating of the accommodation in dispute, which shall be recovered as arrears of land revenue and paid forthwith to the landlord. No order as to costs.
Order Date :- 11.2.2011 YK