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2002 DIGILAW 1159 (ALL)

Raj Kumari v. District Judge Jhansi

2002-09-03

V.M.SAHAI

body2002
JUDGMENT : - V.M. Sahai, J. Heard Sri Ravi Kiran Jain, learned Senior Counsel assisted by Sri Anurag Khanna for the petitioners, learned Standing Counsel appearing for respondents 1 and 2 and Sri Rajesh Tandon, learned Senior Counsel assisted by Sri Som Narain Mishra appearing for respondent Nos. 3 and 4. 2. RESPONDENT Nos. 1 and 2 filed an application under Section 21 (1) (a) of the U. P. Act No. 13 of 1972 (hereinafter referred to as the Act) on 9-2-1987 for releasing the shop in dispute on the ground that it was required by them for establishing Suresh Kumar in business and the need was bona fide and genuine. In the application the respondents also mentioned the details as to how they have became owner of the property in dispute. Mohan Lal, husband of petitioner No. 1 and father of petitioner No. 2 to 4 who was tenant of the premises contested the release application on the ground that since title of the landlord is in dispute therefore, unless the dispute is decided the release application is not maintainable. While the release application was pending, Original Suit No. 66 of 1987 was filed by Krishna Chandra Sharma against Om Prakash and others claiming title to the property in dispute. In this suit a compromise was arrived at between Krishna Chandra Sharma and Om Prakash and others which was accepted by the Civil Court. As per the compromise the rent which was deposited under Section 30 (2) of the Act was to be paid to Sri Krishna Chandra Sharma and thereafter the respondents were given right to realise the rent from Mohan Lal. It was further provided that respondents were owners of the premises in dispute. 3. AFTER the compromise decree was passed on 24-5-1993, tenant Mohan Lal offered to pay rent to respondents 3 and 4 but it was not accepted by them. Therefore, Mohan Lal deposited the rent under Section 30 (2) of the Act. An amendment application was filed by respondents 3 and 4 before the Prescribed Authority for amending the release application bringing on record that the shop in dispute was required to establish Mukesh Siddh son of Suresh Kumar in business of steel utensils. The application was allowed and the order has become final. Thereafter, the Prescribed Authority considered the release application and found Respondent Nos. The application was allowed and the order has become final. Thereafter, the Prescribed Authority considered the release application and found Respondent Nos. 3 and 4 to be the landlord of the premises in dispute. He further recorded a finding that need of the landlord was bona fide and genuine and the landlord would suffer greater hardship than that of the tenant and the release application was allowed by order dated 11-12-1997. The appeal filed by the petitioner has also been dismissed on 5-8- 2002. 4. SRI Ravi Kiran Jain, learned Senior Counsel urged that application of the petitioner under Section 21 (1) (a) of the Act was not maintainable because the landlord's title was in dispute and unless the dispute was decided by the competent Civil Court, respondents 3 and 4 could not move release application under the Act. He further urged that compromise decree passed subsequent to the release application was a collusive decree and was in the nature of sale-deed which will not confer any title on respondents 3 and 4. He lastly urged that the findings recorded by the Court below on the question of bona fide need and comparative hardship is perverse. On the other hand, SRI Rajesh Tandon learned Senior Counsel has supported the judgment passed by the Court below. The release application was filed by the landlord in which he has also mentioned the details as to how he became the landlord. Krishna Chandra Sharma disputed his title and filed original suit. In the suit a compromise was arrived at between the parties and it was held that Respondent Nos. 3 and 4 are owners of the premises in dispute and the rent which was deposited under Section 30 (2) of the Act had to be paid to Krishna Chandra Sharma. The argument of Sri Jain that since the title of the landlord was in dispute, the release application was not maintainable cannot be accepted. Respondent Nos. 3 and 4 were claiming the title on the basis of Will-deed. If they have mentioned in detail as to how they had become the owner of the property in dispute, that cannot render the application not maintainable. Respondent Nos. 3 and 4 were claiming the title on the basis of Will-deed. If they have mentioned in detail as to how they had become the owner of the property in dispute, that cannot render the application not maintainable. Subsequently, in Original Suit No. 66 of 1987 by means of the compromise the title dispute raised by Krishna Chandra who was also claiming on the basis of will came to an end and it was held that Respondent Nos. 3 and 4 were the owners. Therefore, in my opinion it cannot be said that release application filed by the petitioner prior to the compromise decree, was not maintainable. 5. THE decision in Smt. Kailashwati v. Addl. District Judge and others, 1980 ARC 388, relied on by Sri Jain is of no help. In this decision it has been laid down that a dispute of title of landlord cannot be decided in a summary proceeding under Section 21 (1) (a) of the Act. In this case title was not decided on release application but it was decided in original suit. Therefore, it is incorrect to say that that the Prescribed Authority while deciding the release application has decided the title of the landlord. THE other decision relied on by Sri Jain namely T. Arivandandam v. Satyapal and another, AIR 1977 SC 2421 , is also not applicable to the facts of the instant case. I do not find any illegality in the findings recorded by the Courts below that Respondent Nos. 3 and 4 were the landlords and release application filed by them was maintainable. 6. THE other points namely as to whether the compromise decree was collusive and whether it was in the nature of sale-deeds and whether the petitioners could challenge the compromise decree which was collusively obtained in the proceedings under Section 21 (1) (a) of the Act and the Court did not even care to examine whether the compromise decree was collusive or not. He further urged that prior to the compromise the rent was payable to Krishna Chandra Sharma and after the compromise rent was payable to Respondents 3 and 4 and therefore, from the date of the compromise only Respondents 3 and 4 could become landlord and acquire any right to file the release application raised by learned Counsel for the petitioners can be taken up together. From the perusal of the compromise it is clear that Krishna Chandra Sharma was only given the rent deposited in the Court under Section 30 till the date of compromise and was recognised that respondents are the owners/landlord of the premises and were entitled to receive rent. If any amount was paid by the respondents to Krishna Chandra Sharma it will not make Krishna Chandra Sharma owner/landlord of the premises nor the premises can be said to be in the nature of sale-deed. In original suit No. 66 of 1987 two parties were claiming themselves to be owner of the property in dispute which was resolved by a compromise. In my opinion, it cannot be said that the compromise was collusive nor the Courts below were required to go into this question in proceedings under Section 21 of the Act. As per the compromise Krishna Chandra would be the landlord prior to the compromise and subsequently thereafter Respondent Nos. 3 and 4 would become the landlord is liable to be rejected, the compromise decree only permitted that the rent deposited under Section 30 (2) of the Act amounting to Rs. 14030 would be paid to Krishna Chandra. However, the compromise decree further recognises Respondent Nos. 3 and 4 to be the owner of the property in dispute and they are entitled to realise the rent from Mohan Lal. Merely because under the compromise rent was paid to Krishna Chandra it cannot be said that Krishna Chandra was the owner till the date of the compromise and thereafter Respondent No. 3 and 4 became the owners. As a matter of fact Respondent No. 3 and 4 claimed themselves to be the owners on the basis of the will-deed which was also mentioned in the release application filed in the year, 1987. The compromise decree was a recognition of the rights of Respondent No. 3 and 4 that they are owners of the property in dispute. 7. LEARNED Counsel for the petitioners has vehemently urged that the findings recorded by the Courts below on the question of bona fide need and comparative hardship are perverse. Sri Jain has vehemently urged that the need of Suresh Kumar as mentioned in release application was not bona fide and genuine. The petitioners have brought on record that Suresh Kumar was in Government service and was suspended. However, he was subsequently reinstated. Sri Jain has vehemently urged that the need of Suresh Kumar as mentioned in release application was not bona fide and genuine. The petitioners have brought on record that Suresh Kumar was in Government service and was suspended. However, he was subsequently reinstated. Therefore, the need of the landlord was not bona fide and genuine. The landlords had amended their release application and by means of the amendment the need for establishing Mukesh Siddh son of Suresh Kumar in the business of steel utensils was incorporated which had not been disputed by learned Counsel for the petitioners. Mukesh Siddh was unemployed and even if at the time of moving the application the need of Mukesh Siddh was not mentioned it was subsequently added by way of amendment. It was open to the Courts below to consider the need of Mukesh Siddh. The Courts below found that for establishing Mukesh Siddh in the business, the shop in dispute was bonafidely and genuinely required. Therefore, I do not find any illegality in the findings recorded by the Courts below on the question of bona fide and genuine need of the landlord and the findings could not be said to be perverse. I have examined the orders passed by both the Courts below. They have given sound reasons and have found that Mukesh Siddh son of Suresh Kumar was unemployed and was to be established in the business of steel utensils, therefore, the need of the landlord was bona fide and genuine. So far as the question of comparative hardship is concerned both the Courts below recorded a finding of fact that 5 shops which were in possession of the petitioners were vacant. Therefore, the need of the landlord was greater than that of the tenant. The findings of fact recorded by the Courts below are not perverse and are not open for interference under Article 226 of the Constitution of India. 8. SHRI R. K. Jain learned Counsel for the petitioner prays that some time be allowed to vacate the shop in dispute to which SHRI Rajesh Tandon learned senior Counsel appearing for respondent has no objection. The petitioner shall file an undertaking before the prescribed authority within a period of two weeks from today that he will vacate the accommodation in dispute and hand over the vacant possession to Respondent No. 3 within a period of 3 months from today. The petitioner shall file an undertaking before the prescribed authority within a period of two weeks from today that he will vacate the accommodation in dispute and hand over the vacant possession to Respondent No. 3 within a period of 3 months from today. For a period of 3 months the petitioner's eviction shall remain in abeyance in case the undertaking is not filed within a period of two weeks, the execution shall proceed. Subject to the aforesaid observations made above, this writ petition is dismissed. Petition dismissed.