Bipin Bihari v. District Judge, Varanasi — 1978 DIGILAW 530 (ALL)

JUDGMENT K.C. Agrawal, J.:- These are two connected writ petitions for quashing the order of the District Judge, Varanasi, dated 27-8-1976 and that of the Prescribed Authority dated 3.6.1976. 2. One Panna Lal Shukla was, admittedly, the owner of the house in dispute, which is situate in town Ares. Chandauli, district Varanasi. He died leaving behind three daughters. One of them was Smt. Daya Devi Dixit, Respondent No. 3. The house in dispute had been let out to five tenants, namely, Bupin Bihari, Shrawan Kumar, Bachcha Maharaj, Shee Pujan Sahu, and a Cooperative Society. 3. Smt Daya Devi Dixit filed a composite application against the tenants under U P. Act No. XIII of 1972 for release of the premises, on 21.1.1976, on the allegation that as she wanted to settle at Chandauli with her children she wanted the premises in dispute for her residence. She alleged that she was living with her husband Jyoti Bhadra Dixit at Sitapur, but as he was not maintaining her property, she wanted to shift to Chandauli and live in the premises in dispute. The respondent No. 3 alleged that she had no other accommodation available at Chandauli, except the accommodation in dispute. 4. The application was contested and the allegations made therein were denied by all the five tenants. They alleged that the Cooperative Society, which was a tenant in one of the partions, vacated the same and handed over the possession to the respondent No. 3. The case was fought out by the remaining four tenants. They contended that neither was the need of the respondent No. 3 bona fide nor she was likely to suffer any hardship in case her application was rejected. They also asserted that they would suffer greater hardship if the application was allowed. 5. The Prescribed Authority allowed the application holding that the need of the respondent No. 3 was genuine and bona fide. In appeal, the findings of the Prescribed Authority were affirmed. Aggrieved by the judgments of the two courts below, two writ petitions were filed. Writ Petition No. 1435 of 1976 was filed by Sheo Pujan Sahu, whereas Writ Petition No 1434 of 1976 was filed by the remaining three tenants. 6. In appeal, the findings of the Prescribed Authority were affirmed. Aggrieved by the judgments of the two courts below, two writ petitions were filed. Writ Petition No. 1435 of 1976 was filed by Sheo Pujan Sahu, whereas Writ Petition No 1434 of 1976 was filed by the remaining three tenants. 6. Shri R. N. Singh, counsel appearing for the petitioners, In writ petition No. 1434 of 1976, urged that the courts below committed an error in entertaining the application filed by Smt. Daya Devi Dixit against the petitioners, when the petitioners had denied her title over the property in dispute. He contended that application under section 21 of U.P. Act No. XIII of 1972 can be filed only when there is, admittedly, the relationship of landlord and tenant. But where, as here, the petitioners denied the title of the landlady to the ownership of the property, the application ought to have been rejected on the said ground. It is undeniable that an application under section 21 of the Act can be filed by a landlord against a tenant. It is a procedure provided to enable a landlord to get possession of the property belonging to him from his tenant, if his need is found to be bona fide and genuine. This does not provide or prescribe a procedure for ejecting a trespasser or a person who is not accepting the person filing the application as his landlord. However, this rule cannot invariably be applied in all cases. A court trying such an application would be competent to examine whether the plea raised by a tenant about the title of a landlord is a bona fide or a real one raised for the vindication of his right. But, if the Court finds that such a plea was not a genuine one and was raised only to oust the jurisdiction of the authority trying the application under section 21, the Court will be fully competent to repel that plea and to try that application. 7. In the instant case, the property, admittedly, belonged to the Panna Lal Shukla, who was the father of the respondent no. 3 and her two other sisters. In this view, respondent no 3 because the owner of the property along with her two sisters. Accordingly, the title of the respondent no. 3 could not be denied by the tenants. 7. In the instant case, the property, admittedly, belonged to the Panna Lal Shukla, who was the father of the respondent no. 3 and her two other sisters. In this view, respondent no 3 because the owner of the property along with her two sisters. Accordingly, the title of the respondent no. 3 could not be denied by the tenants. Another aspect of the matter which is needed to be emphasised is that Sheo Pujan Sahu and the Cooperative society, who were tenants of two portions of this property, admitted the ownership of the respondent no. 3. The plea disputing its ownership of respondent no. 3 was related by the remaining tenants only, and thus the same does not appear to be a bona fide one. The prescribed authority correctly held that the same was a mala fide plea raised with a view to oust the jurisdiction of the prescribed Authority. This was affirmed in appeal by the learned District Judge. I am in full agreement with the view taken by the two courts below and find that the same was rightly rejected. The courts below correctly found that the application filed by the land lady could not be dismissed on this ground. 8. The other question raised on behalf of the petitioners was that the application filed by the respondent no. 3 was not maintainable in as much as there were two more sisters of the said respondent who inherited the property along with her, and hence the application should have been filed by all the three sisters jointly. The submission has no substance. It was found by the courts below concurrently that the two sisters were not heard of for a long time. In this view of the matter, the application filed by the respondent no. 3 could not be rejected on the ground suggested by the learned counsel for the petitioners. She was one of the owners of the property. I see no reason as to why she could not be found to be entitled to file an application under Section 21 of the Act. 9. The third question that arises for decision is about the findings recorded by the courts below about the genuineness of the need of Respondent no. 3. It would be seen that the application was filed by the respondent no. 9. The third question that arises for decision is about the findings recorded by the courts below about the genuineness of the need of Respondent no. 3. It would be seen that the application was filed by the respondent no. 3 on the assertion that she wanted to shift the Chandauli as she intended to live with her children there. This was disputed by the tenants. The assertion made on behalf of the tenants was that she was married to Jyoti Bhadra Dixit at Sitapur and was living there and she did not require the premises for her residence Affidavits were exchanged on this aspect of the matter. None of the two authorities thought it proper to record a finding whether the allegations made by the respondent No. 3 were true. The learned District Judge only contended himself by observing that due to family circumstances the respondent no. 3 wanted to live at Chandauli This was not sufficient. This matter ought to have been investigated thoroughly and a more comprehensive finding should have been given thereon. Lest this may prejudice the respondent no. 3, I do not wish to dwell upon this point any further. The finding given by the learned District Judge about the genuineness of need of respondent No. 3 is not in accordance with law. It is to be noted that the word used in Section 21 of the Act is "required". It means that a landlord filing such an application must prove his need or necessity to occupy such a house. It is not merely a desire of a landlord or his whim or fancy to occupy any other house. The learned District Judge, therefore, ought to have considered the need of the respondent no. 3 from this view of the matter. 13. The finding given on the question of comparative hardship is not only far from satisfactory but also illegal. The learned District Judge while dealing with the said question observed: "So far as the need of the tenants is concerned, I find that some of them have even tried to deny the title of the landlady. They appear to be persons who can easily manage for their residence elsewhere, while this landlady has to live in her own house." 10. They appear to be persons who can easily manage for their residence elsewhere, while this landlady has to live in her own house." 10. This would indicate that the learned District Judge was largely influenced in favour of the landlady against the tenants because they had denied the title of the said respondent. Even if it was not fair on the part of the tenants to have denied the title of the respondent, but that would not be sufficient by itself to record a finding on the question of comparative hardship against them. It was to be dealt with in accordance with law and should have been decided on consideration of the evidence adduced by the parties. In this view of the matter, I am unable to uphold the finding recorded by the learned District Judge on the said point. 11. Shri C.M. Srivastave, learned counsel appearing for the respondent no. 3, cited a number of authorities before me in support of his contention that the findings recorded on the question of genuineness of the need of a landlord and greater hardship were findings of fact and this court had not power under Article 226 of the constitution to interfere with the same. There can be no denial of the argument advanced by the learned counsel for the respondent No. 3. But, in this case, for the reasons given above, I am unable to find that the submission made by respondent No. 3 could be accepted. 12 In the result. the writ petition succeeds and is allowed. The order of the District Judge dared 27-8-1976 is quashed, and he is directed to decide the appeals filed by the four tenants afresh. In doing so, he will not decide the points which have been found in favour of the respondent No. 3 by me in the judgment. He will confine himself only to the questions about the genuineness of the need and comparative hardship. No order as to costs.