Research › Browse › Judgment

Allahabad High Court · body

1979 DIGILAW 393 (ALL)

Varand Mal v. Gopal Das

1979-03-29

K.C.AGRAWAL

body1979
ORDER K.C. Agrawal, J. - This is a tenant's writ petition filed against a judgment of the third Additional District Judge Kanpur dated 20th December, 1976 dismissing Rent Appeal No. 612 of 1973 and allowing Rent Appeal No. 598 of 1973. Rent Appeal No. 612 of 1973 had been preferred by Varand Mal, the tenant, where Rent Appeal No. 598 of 1973 had been filed by Gopal Das the landlord. 2. An application under Section 21(1)(a) of U.P. Act No. 13 of 1972 was filed by Gopal Das for release of premises No. 105/425 Nehru Nagar Kanpur on the ground that the said premises belonged to a joint family of which Gopal Das was the 'karta'. This house had been purchased in 1970 for the need of the joint family. The joint family consisted of 19 members. Different branches of this family had been living separately in separate houses on account of paucity of accommodation. Family members wanted to live together and as such, they required the house in dispute for accommodation for themselves. The landlords also alleged that the accommodation at the disposal of the members of the family was highly insufficient. 3. The application was contested by Varand Mal. He contended that Manohar Lal, Phool Chand and Ram Das had been living separately with separates messes and separate sources of incomes. He asserted that Gopal Das was not the karta of the family inasmuch as there was no joint family consisting of Gopal Das and others. He further contended that the Foot-wear business run in the name of M/s. Gopal Das Shoe Co. belonged to Gopal Das and Manohar Lal, Phool Chand and Ram Das had no interest in the same. The tenant denied that the accommodation at the disposal of Gopal Das, Manohar Lal, Phool Chand and Ram Das was insufficient. He maintained that Gopal Das had sufficient accommodation. 4. Before the Prescribed Authority, the parties filed affidavits. The Prescribed authority found that the house belonged to Gopal Das personally and that Gopal Das alone was entitled to get the release made in his favour. On this finding, the Prescribed Authority allowed the application partly and directed for the release of a portion of the disputed premises Against this order, both the parties filed Rent Appeals before the District Judge. The appeal filed by the tenant was dismissed whereas that preferred by the landlord was accepted. On this finding, the Prescribed Authority allowed the application partly and directed for the release of a portion of the disputed premises Against this order, both the parties filed Rent Appeals before the District Judge. The appeal filed by the tenant was dismissed whereas that preferred by the landlord was accepted. Aggrieved by the judgement, Varand Mal filed a writ petition in this Court. On 8-7-1976 the writ petition was allowed. Appellate Authority was directed to decide the appeals afresh. The direction given was that the appellate authority should consider the comparative hardship which was likely to be suffered by tenant from the grant of the vacation. 5. After remand, the appellate authority dismissed the appeal of the tenant and allowed that of the landlord. As a result thereof, the application made by Gopal Das stood granted. The entire accommodation which had been let out to Varand Mal, stood released in favour of the landlord. On the finding that he house was joint Hindu Family property, of which Gopal Das was karta, the appellate authority found that the need of members of the family to occupy the disputed premises was bonafide. He held that the Firm Ram Das and Sons was also a joint Hindu Family Property Firm and that accommodation in possession of the members of the family was insufficient. Chandu Mal son of Varand Mal, the tenant had a factory of his own and that the petitioner could also shift his business to the said factory where Chandu Mal was running his own factory. The Appellate Authority held that in these circumstances the tenant was not likely to suffer any hardship. 6. Aggrieved by the judgment, the tenant preferred the present writ petition. During the pendency of this writ petition, Varand Mal as well as Gopal Das, died. Upon the death of Varand Mal, his heirs were substituted. Sri K.M. Dayal counsel for petitioner contended that the appellate authority committed an error in holding that the house in dispute was the joint Hindu Family property, and that the same should be released in favour of Gopal Das for the need of the family members of the said joint family. He made a particular reference to a copy of the plaint of suit. No. 987 of 1971 which had been filed by Gopal Das against Varand Mal for ejectment. He made a particular reference to a copy of the plaint of suit. No. 987 of 1971 which had been filed by Gopal Das against Varand Mal for ejectment. He pointed out paragraph 1 of the plaint of the said case and urged that Gopal Das, having admitted that he was the owner of the disputed house, could not subsequently change his stand, and assert that this was a joint family property. Suggestion of the learned counsel was that a change in the stand taken by Gopal Das was not only purposive but also dishonest. He contended that since Gopal Das did not have the house released, he had to set up a false case of the property belonging to the joint family. This could be one of the circumstances in favour of the petitioner. But it is not correct that this was a conclusive circumstance indicating that the houses do not belong to the joint family. Moreover, as found by the courts below, since it was not necessary in Suit No. 987 of 1971 to say that property belonged to the joint family, a mere commission to make an assertion to that effect could not be fatal for the case of respondent No. 1. It is not unknown that a Karta of the joint family purchases a property for the benefit of his family. Therefore, merely because the sale deed happened to be in the name of Gopal Das, the counsel could not contend that necessarily it was not the joint Hindu family property if these circumstances had been considered by the appellate authority. After having considered these circumstances the appellate authority concluded that the property belonged to the joint family. Therefore, finding of the appellate authority that the property belonging to the joint family cannot be interfered with. It may be noted here that merely because this court would have taken a view different from that taken by the court below on the sole question of fact, would not be a ground for interference under Article of 226 of the, Constitution. If two views are possible on a particular question of fact, and if the appellate authority takes one view, the jurisdiction of this Court being limited, the Court cannot set aside that finding of fact. 7. If two views are possible on a particular question of fact, and if the appellate authority takes one view, the jurisdiction of this Court being limited, the Court cannot set aside that finding of fact. 7. Counsel's submission that there was no evidence to justify the finding of the courts below that the property was joint Hindu family property is not acceptable to me. There may not be direct evidence to prove the same, but if circumstantial and indirect evidence has been taken into account in coming to the conclusion that the property was the joint Hindu Family property, no exception was possible to be taken to that view. It has been repeatedly laid down that this Court exercises supervisory jurisdiction and in exercise of that jurisdiction, it cannot sit as a court of appeal. 8. The second submission is equally erroneous The same was that the appellate authority did not consider the need of the petitioner and compare it with that of the landlord. The Appellate Authority considered the need of the tenant and found that he was not likely to suffer any hardship in an as much as the business run in the premises in dispute could be shifted to the premises of his son Chandu Mal's, where Chandu Mal was running the business in partnership. This could be done without any loss of profits as an alternative accommodation was available to the petitioner. The question of co-reparative hardship was rightly decided against him. The family of respondent No. 1 lived in several houses which was causing inconvenience and discomfort. The accommodation in their possession was also insufficient. Accordingly, the respondent landlord was likely to suffer greater hardship the finding cannot be said to be erroneous as to require interference in the present proceeding. 9. As held in Muni Devi v. District Judge Varanasi, AIR 1978 Supreme Court 28, the questions of bona fide requirement and hardships are those of facts. This Court has no power to interfere with the same, unless the finding was shown to be preverse and was unreasonable. I am unable to find such a mistake. In fact, the Prescribed Authority himself had also found that Gopal Das was entitled to the release of a portion of this house on the ground that his requirement was bona fide and genuine. Thus, in respect of a portion, there was a concurrent finding. 10. I am unable to find such a mistake. In fact, the Prescribed Authority himself had also found that Gopal Das was entitled to the release of a portion of this house on the ground that his requirement was bona fide and genuine. Thus, in respect of a portion, there was a concurrent finding. 10. In the result, writ petition fails and is dismissed with costs. The petitioner is granted six months' time to vacate the premises.