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Allahabad High Court · body

2009 DIGILAW 3253 (ALL)

Jag Mohan Malhotra v. Vijay Kumar Mishra

2009-10-09

SHISHIR KUMAR

body2009
Heard Sri Kshitij Shailendra, learned counsel for the petitioner and Sri Iqbal Ahmad, learned counsel for the respondents. 2. This writ petition has been filed for quashing order dated 29.8.2009 by which the application filed by petitioner regarding staying of proceedings in suit which was filed by respondents as P.A. Case No. 21 of 2003 has been rejected. 3. It is the case of petitioner that petitioner is enjoying possession of the property in dispute which is in the shape of two shops as owner. The possession of petitioner was uninterrupted, therefore, impliedly, petitioner can be treated to be owner of the said shops and there is no relationship of landlord and tenant between the petitioner and respondents. It appears that proceedings was initiated by respondents, under section 21(1)(a) of Act No. 13 of 1972 before the Prescribed Authority in the year 2003 and the case was registered as Case No. 21 of 2003. The case proceeded exparte. When the petitioner came to know, he filed application for recalling of said order and said application was allowed on 30.7.2005, then in the month of January, 2006, the petitioner filed a suit before Civil Judge being Suit No. 13 of 2006 for declaration that the petitioner has become owner of property in dispute by virtue of his adverse possession. An application for injunction was also made. Petitioner has also filed written statement in the case filed by respondents pending before the Prescribed Authority. An application was filed by the petitioner before the court that proceedings pending before Prescribed Authority under Section 21(1)(a) of the Act should remain stayed in view of the fact that the petitioner is owner of the shops and until suit filed by petitioner, for declaration by virtue of adverse possession is decided, the proceeding in application under section 21(1)(a) of the Act should remain stayed. The court below after considering the submissions made on behalf of the petitioner and respondents was pleased to reject the same vide its order dated 29.8.2009, hence the present writ petition has been filed by the petitioner. 4. The court below after considering the submissions made on behalf of the petitioner and respondents was pleased to reject the same vide its order dated 29.8.2009, hence the present writ petition has been filed by the petitioner. 4. Learned counsel for the petitioner Sri Kshitij Shailendra has submitted before this Court that as the suit is pending for declaration, therefore, unless and until, the title is decided, the proceedings pending before Prescribed Authority under section 21(1)(a) of the Act should remain stayed as the petitioner was not having any knowledge and as soon as he came to know regarding fact of pendency of application, under Section 21(1)(a) of the Act, he filed a declaratory suit in the month of January, 2006. He also placed reliance upon judgements of this Court reported in AIR 1975 413; Jado Rai Vs. Onkar Prasad and have placed reliance upon para 6 of said judgement. Further, two judgements have been relied upon by learned counsel for the petitioner; one is 1980 Allahabad Rent Cases 388; Smt. Kailashwati Vs. IV Addl. District Judge and ors and other is 2003 (52) ALR 415; Nirmal Chandra Tandan Vs. Additional District Judge, Kanpur Nagar and others. A further reliance has been placed upon a judgment of Apex Court reported in 2007 (3) SCC 114 ; M. Durai Vs. Muthu and others. 5. By placing reliance upon these judgments, learned counsel for the petitioner submits that in a situation where section 10 of the Act is not applicable, the court in which suit is pending has a jurisdiction to stay the proceeding, the power to exercise is vested under Section 151 C.P.C. The two other judgments of this Court have been relied upon by learned counsel for the petitioner that in case there is a dispute of ownership of accommodation, then in that event, the rent control authorities have no jurisdiction to decide the dispute of ownership and proceeding pending before them should remain stayed till question of ownership is decided. 6. I have considered the submissions made on behalf of petitioner and have perused the record. 7. The findings recorded by the courts below is to the effect that admittedly application under section 21(1)(a) of the Act has been filed in 2003 and suit for declaration has been filed in 2006. 6. I have considered the submissions made on behalf of petitioner and have perused the record. 7. The findings recorded by the courts below is to the effect that admittedly application under section 21(1)(a) of the Act has been filed in 2003 and suit for declaration has been filed in 2006. Further, it is not the case, where petitioner is claiming ownership and title on the basis of some documents. He is claiming rights only on the basis of adverse possession to the effect that he is in possession of the property in dispute without any interruption by any body, therefore, by virtue of that, he has become owner of the property in dispute. A finding has been recorded that admittedly, the suit which has been filed by the petitioner appears to be after thought, therefore, at this stage, there is no occasion to stay the proceedings of suit of 2003 filed by respondents. As regard the judgments relied upon by learned counsel for the petitioner, the Nirmal Chandra Tandan and Smt. Kailashwati's case (supra) is distinguishable to the present case as in this case, petitioner is not claiming ownership on the basis of some documents. He is claiming rights on the basis of adverse possession only, that too after a period of three years from the date, the respondents had already filed an application under section 21(1)(a) of the Act. As regard Apex Court's judgment, relied upon by learned counsel for the petitioner, that was a case, in which, the plaintiff claimed his ownership and he proved his title. In the said case, the Apex Court has held that burden is upon the defendant to prove regarding adverse possession. In my opinion, said case is not applicable in the present case. 8. In view of the findings recorded by the court below, I am of the considered opinion that there is no illegality in the order. The order, passed by trial court is correct and based on evidence on record, needs no interference. 9. The writ petition is devoid of merit and is hereby dismissed without imposing any cost. It is further observed that the suit filed by petitioner for declaration being O.S. No. 13 of 2006 be decided expeditiously, if possible within a period of six months.