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1981 DIGILAW 626 (ALL)

Shri Dau Dayal v. Additional District Judge, Aligarh

1981-08-06

B.N.SAPRU

body1981
JUDGMENT B.N. Sapru, J. - This is a tenant's writ petition against an appellate order whereby the appellate Court allowed the landlord's appeal and permitted eviction of the tenant-petitioner. 2. The landlord-respondent came with the allegations that he alongwith his wife and two children were living in his parental house situated in Mohalla Mamubhaja alongwith his parents. The family of his elder brother consisting of three children, a married sister, an unmarried sister and an unmarried brother were also living in the same house and accommodation in possession of the landlord was, therefore, insufficient. It was also urged that the relation between his wife and mother had become strained and so it had become necessary to live separately and as no other accommodation was available he wanted the disputed premises in the tenancy of the petitioner vacated. 3. The tenant, petitioner contested on the ground that there was no strained relations between the respondent's mother and wife and that the respondent had got a three storied house in Mamubhanja consisting of 15 rooms and the entire house was in possession of the respondent and got his family members. It was alleged that besides this the respondent had another house in Brahmanpuri. It was alleged that the petitioner was in possession of the disputed accommodation situated in Mohalla Mamubhanja consisting of first and second floor for 15 years. It was also alleged that the remaining portion was in possession of the respondent and was living vacant. 4. The prescribed Authority considered the rival case of the landlord and the tenant and dismissed the application under Section 21 of the UP Act No. XIII of 1972. 5. The landlord-respondent filed an appeal. The appellate Court found that the relations between the respondent-landlord's wife and mother, had become strained and consequently it had become necessary for the respondent to live separately, it also found that the accommodation in possession of the landlord was insufficient and it further found that the accommodation which the petitioner alleged to have available for the occupation of the landlord was not available. It took into account the fact that the petitioner had been living in the accommodation for a number of years and would be forced to vacate the accommodation in question. The appellate Court as mentioned earlier had allowed the application under Section 21(1)(a) of the U.P Act No. XIII of the 1972. 6. It took into account the fact that the petitioner had been living in the accommodation for a number of years and would be forced to vacate the accommodation in question. The appellate Court as mentioned earlier had allowed the application under Section 21(1)(a) of the U.P Act No. XIII of the 1972. 6. Aggrieved, the petitioner-tenant has filed this writ petition. 7. Sri S.U. Khan appearing on behalf of the petitioner urged that if strained relation between the wife and the mother of the landlord is recognised as a good ground for eviction of the tenant, it will open the flood gate for applications by landlords for the eviction of the tenants in possession of the accommodation. He has attacked a judgment of the Delhi High Court in the case of Lal Chand KIhanna v. Dr. Pramod Kumar Sood and others, 1980(1) Rent Control Reporter 706 (Delhi) : AIR 1980 Delhi 142 in which it was held that strained relation between the wife and mother of the landlord could be a ground for granting permission to the landlord to evict his tenant. The Delhi High Court had held that joint family living had been under considerable strain for economic and temperamental reasons arising largely on account of a conflict between the mother-in-law and the daughters-in-law with the result that a separate unit for some of the branches of the family within the family home is not an unusual occurrence. 8. The question whether permission should or should not have been granted on the ground of strained relation between the mother and his wife, will have to be decided on the facts of each case. The totality of the circumstances will have to be examined and then the appropriate authority will have to decide the matter. The appropriate authority was entitled to take this factor into consideration while deciding the application. It cannot be said that the factor taken into account was extraneous to the decision. The finding that there was no other accommodation available to the respondent to occupy, is a finding of fact which cannot be challenged in a writ petition. The finding of the lower appellate Court is final. 9. As regards the fact that a previous suit for ejectment had been dismissed, that be itself was no ground for holding that the present need was not bonafide. 10. The finding of the lower appellate Court is final. 9. As regards the fact that a previous suit for ejectment had been dismissed, that be itself was no ground for holding that the present need was not bonafide. 10. It was then urged that the respondent-landlord had tried to evict the petitioner on the ground of non-payment of rent and had failed earlier. It is submitted that because earlier a suit had failed, a second application under Section 21(1)(a) was filed. It is urged that this shows that the application under Section 21(1)(a) was not genuine. Whether the application under Section 21(1)(a) was not genuine. Whether the application under Section 21(1)(a) of the U.P. No. XIII of 1972 was bonafide or not was for the appellate authority to see. 11. In the circumstances, I find that there is no merit in this writ petition. The writ petition is accordingly dismissed. The order of the appellate authority dated 19.9.1980 shall be given effect to after three months from today's date. There will be no order as to costs.