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2005 DIGILAW 1702 (ALL)

Pradeep Kumar v. 7th A. D. J.

2005-09-06

VIKRAM NATH

body2005
VIKRAM NATH, J. ( 1 ) THIS writ petition by the landlord is directed against the judgment and order dated 23. 2. 1991, passed by IInd Additional District Judge, Meerut (respondent 1) whereby the appeal of the tenant was allowed and the release application of the petitioner which was allowed by the Prescribed authority, has been rejected. ( 2 ) THE dispute relates to the residential accommodation bearing House No. 54, Deo Nagar mission Compound, Begum Bridge Road, Meerut of which G. C. Kapoor father of respondent no. 2 was the tenant and the petitioners are the owner and landlord of the same. The petitioner filed the release application under Section 21 (1) (a) of the U. P. Urban Buildings (Regulation of letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act) on the ground of personal need for residential purposes of the accommodation which was in the tenancy of respondent No. 2. ( 3 ) THE respondent No. 2 contested the release application and did not dispute that the petitioners were the landlords even payment of rent to the petitioners is also admitted in the written statement. ( 4 ) BOTH the parties have led their evidence before the Prescribed Authority. Upon consideration of the material on record, the Prescribed Authority, came to the conclusion that the premises in dispute was bona fide required by the petitioners and in case the release application was not allowed, the petitioner- landlords would suffer greater hardship. On these findings, the prescribed Authority, vide order dated 3. 9. 1985 allowed the release application. The tenant filed an appeal under Section 22 of the Act, which was registered as Misc. Appeal No. 282 of 1985. Before the Appellate Authority additional affidavits were also filed by the parties. The Appellate authority vide judgment dated 23. 2. 1991 held that the need of the petitioner was not bona fide for the reason that another accommodation which was in the tenancy of Sardar Akhtar had fallen vacant for which they did not make any effort for release rather allowed it to be allotted to Ms. Tasnim Akhtar wife of Sardar Akhtar. It further held that title of the petitioners was not proved as the inheritance claimed by them was based upon a non-existent right of their mother to inherit. Tasnim Akhtar wife of Sardar Akhtar. It further held that title of the petitioners was not proved as the inheritance claimed by them was based upon a non-existent right of their mother to inherit. On these findings, the Appellate Authority allowed the appeal of the tenant and after setting aside the judgment of the Prescribed Authority, rejected the release application of the petitioners. Aggrieved by the same, the landlords have preferred this writ petition. ( 5 ) I have heard Sri Vishnu Gupta and Sri W. H. Khan learned Counsel for the petitioner and Sri b. N. Agrawal and Sri Som Narain Mishra learned Counsel for the respondents. ( 6 ) IT has been urged by learned Counsel for the petitioners that the accommodation in possession of Sri Sardar Akhtar was only declared vacant under law. However, his family continued to reside therein. The tenant-respondent could have applied for allotment of the said premises and in fact the petitioners had informed the respondent No. 2 to apply for the said premises for allotment but still he decided not to apply and continued to resist the possession as tenant of the premises in dispute. The petitioner has furnished the site plan and has tried to establish that the premises in occupation of Sardar Akhtar was not suitable for their residence inasmuch as they had requested and was pursuing for release of another premises in occupation of Dr. S. P. Gupta for setting up their Clinic and the premises and would be suitable for their residence in dispute was adjoining the said premises whereas the premises in occupation of Sardar Akhtar was at same distance from the said two premises. It was therefore, not suited for them and only the premises in dispute was suitable for their residential purposes. It has also been urged that the petitioners had stated on affidavit before the Court below that the premises in occupation of sardar Akhtar was not sufficient as it had lesser accommodation, whereas the premises in dispute was more suitable on account of having better and bigger accommodation. It has also been urged that the petitioners had stated on affidavit before the Court below that the premises in occupation of sardar Akhtar was not sufficient as it had lesser accommodation, whereas the premises in dispute was more suitable on account of having better and bigger accommodation. ( 7 ) SO far as the other reasoning given by the Appellate Authority in allowing the appeal that title of the petitioners was not proved it is urged by the petitioner that in view of the admitted position in the writ petition that the tenant had admitted that the petitioner was the owner and landlord, this question did not arise at all. The tenant having paid the rent to the petitioner also goes to show that there can be no dispute with regard to the title. It is further asserted by the petitioner that the tenant in his written statement had never alleged that the petitioners were not the owners but what has been alleged is that the petitioner was not the exclusive owners but one of the co-owners. In view of the said statement made in the written statement, there is no question of the title being disputed. Even otherwise it is asserted that the family settlement was a genuine document. ( 8 ) ON the other hand, learned Counsel for the respondent has urged that Appellate Authority having recorded a finding of fact based upon the appreciation of the evidence, the same cannot be interfered with in writ jurisdiction. For the said proposition the reliance is placed upon the judgment of the Supreme Court in the case of Ashok Kumar and Ors. v. Sita Ram 2001 (3) AWC 1997 (SC) : 2001 (2) ARC 1. It is further contended by learned Counsel for the respondent that the family settlement was not accepted by the tenant as such the same could not be relied upon. Further it is alleged that it was only a collusive document to seek eviction of the tenant. For this proposition the counsel for the respondent has relied upon judgments of this Court in the case of smt. Anjum Ara v. XIth Additional District Judge, Gorakhpur and Ors. 2001 (2) AWC 1570 : 2001 (2) ARC 122 and Anr. case in Mrs. H. William v. 1st Additional District Judge, Jhansi and anr. 1995 (2) ARC 620. For this proposition the counsel for the respondent has relied upon judgments of this Court in the case of smt. Anjum Ara v. XIth Additional District Judge, Gorakhpur and Ors. 2001 (2) AWC 1570 : 2001 (2) ARC 122 and Anr. case in Mrs. H. William v. 1st Additional District Judge, Jhansi and anr. 1995 (2) ARC 620. ( 9 ) HAVING considered the submissions made by the learned Counsel for the parties I find that the first reasoning of the Appellate Authority holding that petitioners did not apply for release of the accommodation in occupation of Sardar Akhtar cannot be sustained for two reasons firstly ; the landlord could not be compelled to reside in a particular accommodation only in order to accommodate the tenant and secondly ; the tenant having been informed of the vacancy and tenant having failed to apply for allotment of the said premises declared vacant cannot be permitted to contend that the need of the landlord was not bona fide. However, in view of the material on record that the accommodation in occupation of Sardar Akhtar was not suitable, the landlord could not be forced to live in desperation rather it is now well-settled that landlord having number of accommodation can choose to live in accommodations of his own choice. This view finds support from the following judgment : (i) Meenal Eknath Kshir Sagar v. Traders and Agencies and Anr. 1996 v AD (SC)606 , AIR1997 SC 59 , JT1996 (6)SC 468 , 1996 (5)SCALE302 , (1996)5 SCC344 , [1996 ]supp3 SCR466 , 1996 (2)UJ703 (SC ). ( 10 ) COMING to the second question regarding title, the same cannot be sustained inasmuch as in the written statement, there is clear admission that the petitioners are the landlords and one of the co-landlord or co-owner could validly maintain the release application. In the absence of their being objection to the maintainability of the release application the appellate authority could not have gone beyond the pleadings of the parties. Authorities relied upon by the respondent in the case of Smt. Anjum Ara (supra) and Mrs. H. William (supra) do not apply to the facts of the present case and are clearly distinguishable. In the absence of their being objection to the maintainability of the release application the appellate authority could not have gone beyond the pleadings of the parties. Authorities relied upon by the respondent in the case of Smt. Anjum Ara (supra) and Mrs. H. William (supra) do not apply to the facts of the present case and are clearly distinguishable. ( 11 ) WITH regard to the contention of the respondent that this Court cannot interfere with findings of fact under Article 226 of the Constitution it would only suffice to say that the appellate authority committed serious error of law in proceeding to allow the appeal by recording finding on issues not pleaded by the tenant in his written statement, rather contrary to the admission of the tenant in the written statement. ( 12 ) IN the circumstances the findings of the Appellate Authority cannot be sustained and as a result the judgment impugned in the petition deserves to be set aside. The findings recorded by the Prescribed Authority based upon proper appreciation of evidence on record is liable to be approved. ( 13 ) IN the result, the petition succeeds and is allowed. The impugned judgment of the appellate authority dated 23. 2. 1991 is set aside and the judgment of the Prescribed Authority, dated 3. 9. 1985 is restored and the release application is allowed. ( 14 ) THERE will be no order as to costs. . .