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2005 DIGILAW 241 (ALL)

SHANKER PRASAD v. SPECIAL JUDGE SC/ST AT BASTI

2005-02-10

VIKRAM NATH

body2005
VIKRAM NATH, J. This writ petition has been filed by the petitioner for quashing the judgment and order dated 21-4-1999, passed by the Special Judge, Basti, in Misc. Appeal No. 19 of 1996, Triloki Nath Gupta v. Shankar Prasad & Ors. , whereby the appeal has been allowed and the judgment of the prescribed authority dated 6-2- 1996, allowing the release application of the petitioner landlord under Section 21 (1) (a) of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, was allowed and tenant was directed to evict the premises has been set aside. 2. The dispute relates to a shop in the tenancy of respondent No. 2 Triloki Nath Gupta. The property in dispute originally belonged to one Manohar Lal. The petitioner (Shankar Prasad), his brother (Lalji) and father (Bachu Lal) purchased the property in dispute from the Joint Hindu Family Property Fund vide registered sale deed dated 9-2-1983. Subsequently, suit for partition was filed for dividing the properties by Meer Chand between the father and two sons. A compromise decree was arrived at on 17-8- 1984 and according to it the property in dispute fell in the share of the petitioner. The petitioner filed an application for release of the shop in dispute under Section 21 (1) (a) of the Act on the ground that he personally required the shop for starting his own business. It was further alleged in the release application that the tenant Badri Prasad had built a house where he had shifted his business also. Further after the death of Badri Prasad his heirs had become the tenants. It was, therefore, alleged that in case, the release application is allowed, the tenant would not suffer any hardship. This was registered as P. A. Case No. 9 of 1986. 3. The respondent No. 2 Triloki Nath filed written statement and denied the allegations made in the application. It was alleged that the landlord petitioner did not have any need much less bona fide; the compromise arrived at between the father and two sons was collusive in nature, the release application was filed before the expiry of 3 years from the date on which the right of ownership accrued in favour of the petitioner. 4. Both the parties led documentary evidence in support of their cases and also filed affidavit. 4. Both the parties led documentary evidence in support of their cases and also filed affidavit. The prescribed authority vide judgment dated 6-12-1996 held that the need of the landlord-petitioner was bona fide and that in case, the release application is allowed, the respondent tenant would not suffer less hardship in comparison to the hardship, which would be suffered by the landlord, in case, the application is rejected. 5. Aggrieved by the same the tenant respondent filed an appeal under Section 22 of the Act, which was registered as Misc. Appeal No. 19 of 1996. The said appeal was transferred to the Court of Special Judge (S. C. /s. T. Act), Basti for disposal. The appellate authority vide judgment dated 21-4-1999 allowed the appeal and set aside the judgment dated 6-2-1996 of the prescribed authority and accordingly dismissed the application of the petitioner for release. 6. Aggrieved by the said judgment, petitioner-landlord has filed the present writ petition. 7. I have heard learned Counsel for the parties. 8. The contention of the learned Counsel for the petitioner is that the ground on which the appellate authority has allowed the appeal were untenable in law and, therefore, the impugned order deserves to be set aside and that of the prescribed authority should be maintained. It is agreed to the parties that the appellate authority allowed the appeal on two grounds. Firstly, that the partition decree could not be relied upon as it was collusive and was not registered, therefore, the application was not maintainable by the petitioner. Secondly, that the application for release was filed within 3 years from the date on which the right accrued in the petitioner, therefore, the same was barred under the proviso to Section 21 (1) (a) of the Act. 9. Learned Counsel for the petitioner has contended that the tenant had no right to object to a family settlement or compromise partition decree between members of the family in the present case, it was family settlement between the members of the joint family, which included father and his two sons. The ground to attack the family partition or the compromise decree could only be it involved person who were not members of the family. The ground to attack the family partition or the compromise decree could only be it involved person who were not members of the family. Secondly, to prove a compromise decree to be collusive has to be substantiated by strong evidence and merely on false allegations, decree of the Civil Court cannot be said to be collusive. 10. Thus, the observation and the finding of the appellate authority that the Civil Court decree was collusive and could not be relied upon cannot be sustained. 11. The appellate authority has also gone on the question as has the partition decree was not registered yet is also not correct. The Registration Act, 1908 provides under Section 17 (2) (vi) that a compromise decree which includes properties which are not subject-matter of the suit only required registration, other compromised decree dealing with properties which are subject- matter of the suit did not require registration. Thus the finding of the appellate authority also cannot be sustained. 12. The next ground on which the appellate authority has held that the application was not maintainable is that less than 3 years have expired from the date on which the right accrued to the petitioner. The law is well settled on this question that the prescribed authority may not pass any final order on an application of release where the landlord has purchased the property within 3 years from the date of purchase and an application could always to be filed after given 6 months notice to vacate and the proceedings can continue. In the present case admittedly the right accrued to the petitioner on 17-8- 1984 and the prescribed authority passed the order on 6-2-1996, after 12 years and, therefore, this ground of the appellate authority also cannot be sustained. 13. The appellate authority has allowed the appeal and after setting aside the judgment of the prescribed authority rejected the release application as not maintainable. It did not go into the question of bona fide need and comparative hardship which were recorded by the prescribed authority. As such the matter requires to be reconsidered by the appellate authority on the question of bona fide need and comparative hardship without going into the question of maintainability of the release application, and ignoring the contention of the tenant regarding partition decree. 14. As such the matter requires to be reconsidered by the appellate authority on the question of bona fide need and comparative hardship without going into the question of maintainability of the release application, and ignoring the contention of the tenant regarding partition decree. 14. In these circumstances, the writ petition is allowed, impugned judgment passed by the respondent No. 1 dated 21-4-1999 is set aside. The matter is remanded back to the appellate authority for afresh determination in the light of the observations made above. Since the application for release is pending last the 20 years, the appellate authority is directed to decide the appeal within a period of 4 months from the date of production of certified copy of this order. Petition allowed. .