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Allahabad High Court · body

2010 DIGILAW 3040 (ALL)

MOHO AFZALUL HAQUE v. ZAHURUL ISLAM U. P.

2010-09-30

RAKESH TIWARI

body2010
JUDGMENT RAKESH TIWARI, J.--Heard learned Counsel for the parties and perused the record. 2. The property in dispute was admittedly owned by one Qamarul Islam who expired on 18.5.1996. 3. On 9.8.2004 after eight years fron the death of Qlmarul Islam the respondent Zahurul Islam filed an application under section 21 (1) (a) of U.P. Act No. 13 of 1972 against the petitioner claiming that he waq the owner and landlord of the building in question and that the petitioner has been occupying the ground floor portion of the tenanted accommodation @ Rs. 700/- per month which has not been paid to him since the death of late Qamarul Islam. 4. The application was contested by the tenant on the ground that wife of the tenant Smt. Bilqis Begum is owner and landlord of the premises in dispute by virtue of an oral Will by late Qamarul Islam existed no relationship of landlord and tenant between the parties. 5. The contention of learned Counsel for the petitioner is that there is no whisper in the application under section 21 (1) (a) of U.P. Act No. 13 of 1972 as to how respondent Zahurul Islam became the owner after the death of Qamarul Islam and how he became the landlord of the petitioner. 6. It was after the filing of the written statement by the petitioner that respondent Zahurul Islam came out with a case in his replication that he became owner by virtue of succession being the real brother of late Qamarul Islam and on the basis of some letter said to have been written by late Qamarul Islam to the Electricity department wherein he had mentioned the petitioner as his tenant. In order to appreciate as to the controversy emerging from the pleadings of the parties, the petitioner referred to paragraph Nos. 1 and 2 of the application under section 21 (1) (a) of U.P. Act No. 13 of 1972, which are quoted hereunder for ready reference: "1. That the applicant is owner and landlord of building No. 12/5-C/1, Atala (Shaukat Ali Marg), Allahabad more fully detailed at the foot of this application. 2. 1 and 2 of the application under section 21 (1) (a) of U.P. Act No. 13 of 1972, which are quoted hereunder for ready reference: "1. That the applicant is owner and landlord of building No. 12/5-C/1, Atala (Shaukat Ali Marg), Allahabad more fully detailed at the foot of this application. 2. That the opposite party has been occupying a ground floor portion consisting of 5 rooms, 1 Do-Chatti, 1 kitchen and 2 bathrooms, 1 store room, 1 Dalan along with Court yard and portico on both sides along with lawn infront of the tenanted accommodation at the rate of Rs. 700/- per month." 7. The petitioner filed written statement on 16.11.2004 and questioned the status of respondent Zahurul Islam as owner and landlord of the property in dispute. He also pleaded that he was in occupation and possession of the property since 1975 i.e., during the life time by Qamarul Islam. It was further stated that no tenancy was ever created by late Qamarul Islam either by an oral contract or a contract in writing and hence there was no contractual relationship between the petitioner and the respondent. It was stated that the deceased owner of the property in dispute late Qamarul Islam had inducted the petitioner and his wife Bilqis Begum as a close relation with an intention to look after him and there was no relationship of the petitioner with him of landlord and tenant. It was also pleaded that the petitioner never attorned the respondent as landlord and hence, there was no question of any tenancy between them. On these facts, it was also pleaded that the Rent Control Authorities had no power or jurisdiction to decide the question of title and ownership. In this regard, paragraph Nos. 1, 2 and 24 to 28 of the written statement of the opposite party are quoted below. "1. That the paragraph 1 of the petition is absolutely wrong and emphatically denied. The petitioner is neither the landlord nor the owner of the premises in question. In fact Smt. Bilqis Begum the wife of the opposite party is the owner landlord of the premises No. 1 12/5/-C/1 Atala (Shaukat Ali Marg), Allahabad and the petitioner has got no concern with the same at all. 2. The petitioner is neither the landlord nor the owner of the premises in question. In fact Smt. Bilqis Begum the wife of the opposite party is the owner landlord of the premises No. 1 12/5/-C/1 Atala (Shaukat Ali Marg), Allahabad and the petitioner has got no concern with the same at all. 2. That in reply to paragraph 2 of the petitioner it is admitted that the entire ground floor portion of the premises in question is in occupation and possession of the wife of the opposite party and the opposite party and his family members in the capacity of owners and the rest of the contents of paragraph under reply are wrong and denied. In the accommodation detailed in paragraph under reply the opposite party and his family is residing as owners and not as tenants. It is absolutely false to allege that the opposite party is never tenant on rent at the rate of Rs. 700/- per month. In fact in the entire ground floor portion of the premises the opposite party and his family members are living as the owners and on the first floor of the premises there are two different tenants of the wife of the opposite party, Smt. Bilqis Begum. 24. That under law tenancy is a contract between the landlord and tenant. In the present case, the tenancy was never created either by an oral contract or by a contract in writing. There was no such contractual relation between the petitioner and the opposite party, hence no relationship if landlord and tenants exists and the possession under section 21 of the Act is attracted only if there is a relationship of landlord and tenant between the petitioner and the opposite party. Hence, the petition itself is not maintainable. 25. That in the same manner, there was no relationship of landlord and tenant between late Qamarul Islam the erstwhile owner landlord and the opposite party. Late Qamarul Islam inducted in the year 1975 in the premises the opposite party and his wife Smt. Bilqis Begum as a close relation with the intention that they will look after him and take care of him. They were not inducted in the premises in question as tenants and there was not a relationship of landlord and tenant with him also. They were not inducted in the premises in question as tenants and there was not a relationship of landlord and tenant with him also. The opposite party also never attomed the petitioner as the landlord, hence there is no question of any tenancy between them. 26. That the Rent Control and Eviction Officer has got no jurisdiction to decide the matter of title and ownership, hence any finding of Rent Control and Eviction Officer with respect to the title is illegal and void since Rent Control and Eviction Officer had no jurisdiction being an authority of only limited jurisdiction. In the like manner the Prescribed Authority also has got very limited jurisdiction given to him under U.P. Act No. 13 of 1972, hence it has also got no jurisdiction to decide the title and ownership and also to decide the relationship of landlord and tenant. 27. That in the present case the question of title, ownership and relationship of landlord and tenant is involved and the Prescribed Authority has got no jurisdiction to decide the same. For this reason also the petition is liable to fail. 28. That the brief facts about the ownership of the wife of the opposite party namely Bilqis Begum are as under: (i) That late Qamarul Islam was the full, absolute and exclusive owner in possession of premises No. 12/5-C/1, Atala (Shaukat Ali Marg), Allahabad (the house in dispute), which was his self acquired property. (ii) That late Qamarul Islam was the cousin of the father of the wife of the opposite party whose name is Mehmood Ali Farooqi. Thus, late Qamarul Islam was the uncle of the wife of the opposite party who was very affectionate to Qamarul Islam who always treated her as his daughter. (iii) That late Qamarul Islam had no issue of his own and even his wife divorced him long long ago and after that he was leading a very marooned life and at that time none of his relations ever helped him nor came nearer to him except the wife of the opposite party Bilqis Begum. (iv) That seeing pitiable condition of late Qamarul Islam Smt. Bilqis Begum, the wife of opposite party came to him to help him and to take care of him. (iv) That seeing pitiable condition of late Qamarul Islam Smt. Bilqis Begum, the wife of opposite party came to him to help him and to take care of him. In the year 1975, the wife of the opposite party came to live with late Qamarul Islam as a family member of late Qamarul Islam and since the year 1975 the wife of the opposite party along with her family members lived with late Qamarul Islam in the, house in dispute without paying any consideration and till the death of late Qamarul Islam she served him and looked after him as a daughter who was the only relation living with Qamarul Islam and taking care of him. (v) That it will not be out of place to mention here that late Qamarul Islam was much more close to the father-in-law of the opposite party when late Qamarul Islam came for study purposes, he lived with the father-in-law of the opposite party who being a close relation was also taking care of late Qamarul Islam during his educational careers. Later on late Qamarul Islam, after coming into possession, purchased the house in dispute wherein he was living with the father-inlaw of the opposite party. (vi) That late Qamarul Islam also had one brother (the petitioner) and sisters whom late Qamarul Islam never liked. Late Qamarul Islam even never permitted his brother and sisters to come and live with him in the house in dispute during his life time. Late Qamarul Islam also had another house but he never permitted his brother and sisters to live therein. The petitioner was living separately in a rented house. Late Qamarul Islam and the petitioner were never in a talking terms. Late Qamarul Islam always used to stay that he has got no relations except Biliqis Begum, his children and her husband. (vii) That on 5.4.1992 late Qamarul Islam bequeathed by oral Will in the presence of the witnesses the house in dispute to Smt. Bilqis Begum, the wife of the opposite party. (viii) That late Qamarul Islam expired on 18th May, 1996 and after the death of late Qamarul Islam, Smt. Bilqis Begum, the wife of the opposite party, became the full, absolute and exclusive owner in possession of the same and since then she is in occupation of the same as the owner landlord of the premises in dispute by virtue of the Will. (ix) That Smt. Biliqis, the wife of the opposite party along with her family members has been continuously living in the house in dispute in the capacity of the owner landlord." 8. The respondent landlord in paragraphs 1, 2 and 24 to 28 of the replication annexed with the supplementary affidavit as SA-l replied to the averments of the written statement, thus: "1. That para 1 of the written statement are emphatically denied. In reply to para 1 of the written statement, it is submitted that Smt. Bilqis Begum, the wife of opposite party Afzalul Haque has got on concern with Building No. 12/5C/I, Atala Shaukat Ali Marg, Allahabad whereas the applicant is legal owner and landlord of the building. The ownership which has been alleged by Smt. Bilqis Begum is absolutely on wrong footing to garb the property of the petitioner. It is very surprising that a person who has entered in the premises as tenant started saying that his wife Smt. Bliqis Begum is the owner and landlord of the concerned building. It is very strange to allege that now Smt. Bilqis Begum became the owner and landlord of the said building. And under what circumstances without any reason Smt. Bilqis Begum became the landlord and owner. The opposile party is tenant and was always tenant. That in para 2 of the written statement is emphatically denied and not admitted as it stands. In reply to para 2 of the written statement, it is submitted that the opposite party is tenant in a portion of ground floor accommodation except garage. It is wrong to say that the opposite party has been occupying the premises in question as owner of the building whereas the opposite party has all along been occupying the portion of the building No. 12/5C-1, Atala Shaukat Ali Marg, Allahabad as a tenant on the monthly rent of Rs. 700/- per month. It is further denied that the wife of the opposite party is the owner of the disputed building or any portion of the said building. Including the opposite party the other three tenants have been occupying the premises of the applicant in different tenant and all the tenants except the opposite party are paying the rent to the applicant and the other three tenants have already accepted the applicant as landlord and owner of the building. 24. Including the opposite party the other three tenants have been occupying the premises of the applicant in different tenant and all the tenants except the opposite party are paying the rent to the applicant and the other three tenants have already accepted the applicant as landlord and owner of the building. 24. That para 24 of W.S. is emphatically denied. There is relation of landlord and tenant between the petitioner and opposite party late Qamarul Islam, the high status person who was the elder brother of the petitioner and was a leading criminal lawyer of District Court and has written a letter to electricity department using the word tenant and the opposite party was tenant of late Qamarul Islam and the landlord late Qamarul Islam wrote a letter to electricity department for giving the sub meter of the department and the said letter is with the electricity department and the said letter has been admitted by the opposite party in the Court of Rent Control and Eviction Officer in Allahabad by filing an affidavit, hence the allegation made in para 24 of the application are incorrect, baseless and without jurisdiction. 25. That para 25 of the W.S. is emphatically denied. Late Qamarul Islam was the owner landlord of the building and the opposite party has been inducted as tenant in the said premises. It is wrong to say that the opposite party and his wife Smt. Bilqis Begum were inducted in the premises being close relation with the intention to look after him and take care of him. The opposite party has got no capacity or he has not in a position to look after late Qamarul Islam. Late Qamarul Islam was looked and cared/served by the petitioner who is the real younger brother blood relation. The entire allegations in para 25 of the application have been made only to grabbed the property. 26. That para 26 of the W.S. is emphatically denied. In reply to para 26 of the W.S., it is submitted that the Rent Control and Eviction Officer, Allahabad has only got jurisdiction to decide the matter under the Act No. 13 of 1972 between the landlord and tenant and the learned Rent Control and Eviction Officer has decided matter according to law holding the opposite party as tenant in the premises. And it was also decided that the opposite party is an unauthorized occupant occupying the portion detailed in petition as tenant. 27. That para 27 of the W.S. is emphatically denied. In reply to para 27 of the W.S. it is submitted that the petition under section 21 (1) (a) has been moved by the petitioner for release of the accommodation occupied by the opposite party under his tenancy. The petition is liable to be allowed on the grounds mentioned in the petition. 28. That para 28 of the W.S. is emphatically denied. The clause wise reply is being given." 9. It is stated that the Courts below have incorrectly taken a view that in the application under section 21 (1) (a) of the Act that petitioner did not raise this question regarding ownership of the property building No. 12/5-C/1 Atala, Allahabad in question and that of landlord tenant relationship. It is argued that it was only after the filing of the written statement by the petitioner, when the respondent was confronted with a specific pleading that after the death of Qamarul Islam relationship of landlord and tenant was not created as petitioner claimed ownership on basis of oral will and that respondent insisted upon his being ownership on the basis of his being brother of the owner late Qamarul Islam. 10. It is submitted that as the relationship of landlord and tenant depends on the proof and disproof of title, the question of title is not incidentally involved but is directly involved and that in paragraph 8 of the judgment in Vijay Lata Sharma v. Raj Pal and another1, the Supreme Court held that question of title cannot be decided by the Prescribed Authority under the Act. 1. 2004 (56) ALR 695. 11. The Counsel for the petitioner has urged that admittedly there was 8 years of time gap between the death of Qamarul Islam and obtaining of the free hold rights by the respondent then what would be the relationship between the parties during this period of time. 1. 2004 (56) ALR 695. 11. The Counsel for the petitioner has urged that admittedly there was 8 years of time gap between the death of Qamarul Islam and obtaining of the free hold rights by the respondent then what would be the relationship between the parties during this period of time. According to him, there could not have been any relationship of landlord and tenant between the respondent and the petitioner as the respondent claims that the status of landlord devolved upon him from the date he acquired free hold rights of the land on which the aforesaid property is situated and for this reason also the question of title was not incidentally involved. 12. He has then relied upon the definition of landlord as defined under section 3 (j) of U.P. Act No. 13 of 1972 which reads as follows: "3 (j) 'landlord' in relation to a building, means a person to whom its rent is or if the building were let, would be, payable and in clause, except in clause (g) the agent or attorney or such person." 13. It is submitted by the Counsel for the petitioner that in view of the definition the respondent was required to prove that the rent was payable to him by the petitioner which could be by an act of the landlord of asserting himself to be so on the basis of his free hold rights of the property in question and that this fact ipso facto or by itself cannot make him the landlord. It is stated that it is not a case covered by section 106 of the Transfer of Property Act where a lessor transfers his property to another person who steps into the shoes of the lessor for attornment of tenancy. 14. It is stated that it is not a case covered by section 106 of the Transfer of Property Act where a lessor transfers his property to another person who steps into the shoes of the lessor for attornment of tenancy. 14. It has been vehemently argued that there is nothing to indicate either in the pleadings or evidence of the respondent Zahurul Islam that at any point of time between the death of late Qamarul Islam on 18.5.96 and till the filing of application under section 21 (1) (a) of the Act on 9.8.2004, he ever asserted himself to be the owner and landlord of the property in dispute and in view of the specific averments made by the petitioner in paragraphs 24 and 25 of the written statement that no relationship of landlord and tenant ever came into existence either by contract between the parties or by assertion of Zahurul Islam that he has become landlord by succession or by demanding rent, it cannot be denied that respondent Zahurul Islam not even asserting anything on these aspects in his application under section 21 (1) (a) of the Act. He asserted to have become landlord by succession for the first time only in replication, hence it cannot be said that either respondent Zahurul Islam became a landlord of the petitioner or that the question of title is only incidentally involved in this case. 15. He then submits that during eight years between the death of Qamarul Islam and the filing of the application under section 21 (1) (a) of the Act i.e., between 1996 and 2004, if the respondent had become landlord he would have sent notice under section 106 of the Transfer of Property Act terminating the tenancy before he filed suit for arrears of rent for more than four months from the petitioner. The petitioner would have replied the notice that he was living in the property in dispute since 1975 and that the wife of the petitioner had become the owner through an oral Will of Qamarul Islam and raised the question of title and status of landlord respondent for adjudication. The petitioner would have replied the notice that he was living in the property in dispute since 1975 and that the wife of the petitioner had become the owner through an oral Will of Qamarul Islam and raised the question of title and status of landlord respondent for adjudication. It is stated that section 30 of U.P. Act No. 13 of 1972 is meant for permitting a tenant to deposit the arrears of rent demanded by a landlord in the prescribed manner in case a bona fide doubt or dispute has arisen as to the status of the person who claims that he is entitled to receive rent. 16. It is submitted that assertions on the aforesaid aspect in the respective affidavits of the parties are on the same pattern as in the application under section 21 (1) (a), the written statement and the replication of the respondent; that the authorities below have not examined the case on the basis of the aforementioned pleadings, yet a concurrent finding has been given by both the Courts below holding Zahurul Islam to be the landlord and the petitioner to be the tenant in the property in question by taking an impermissible view that the case set up by the petitioner that his wife Bilqis Begum has become the owner of the disputed property by oral will was false. 17. The Counsel for the petitioner then contends that true it is that the petitioner came up with the plea that his wife became owner by the will of the deceased but the Prescribed Authority and Appellate Authority had to come to a conclusion as to the existence of relationship of landlord and tenant on the basis of the case set up by the respondent and by further examining the pleading of the petitioner in paras 1, 2 and 24 to 28 of his written statement as to whether the respondent ever became the landlord. It is stated that the Courts below have also observed that Bilqis Begum did not come forward to become a party in these proceedings nor she ever filed a suit for declaration of the title; and that it is for the first time in 2004 after eight years of the death of Qamarul Islam that the respondent asserted himself to be the landlord by filing application under section 21 (1) (a), hence there was no occasion for Bilqis Begum to file a suit between 1996 and 2004 as her status of being owner of the property in dispute was not under challenge and that in any case the approach of the Prescribed Authority as well as the Appellate Authority to hold respondent Zahurul Islam as the landlord of the petitioner only on the basis that the plea of Bilqis Begum about her having become the owrer of the property in dispute on basis of oral Will, is incorrect. 18. The Counsel for the respondent submits that an application under section 21 (1) (a) of U.P. Act No. 13 of 1972 was filed for the release of the accommodation in dispute consisting of five rooms and other amenities on the ground floor as he is residing in a tenanted accommodation where a vacancy has been declared. 19. It was stated by the landlord in the release application that the accommodation in question was needed for purpose of his residence and office as the landlord is a practicing lawyer having no other alternative accommodation with him whereas the petitioner tenant has admitted in his reply that he has an alternative accommodation No. A-692 situated in G.T.B. Nagar, Kareli, Allahabad in the name of his wife. The release application was said to be not maintainable as Smt. Bilqis Begum is related Qamarul Islam and was residing with him and she became owner by virtue of oral Will dated 5.4.1992. 20. The release application was said to be not maintainable as Smt. Bilqis Begum is related Qamarul Islam and was residing with him and she became owner by virtue of oral Will dated 5.4.1992. 20. The Counsel for the respondent urged that the Courts below after considering the entire facts, circumstances and evidence on record came to the conclusion that the case set up by the petitioner tenant regarding oral Will was neither proved nor established and that even no witness was produced by the petitioner to prove the said oral Will; that photocopy of an affidavit of one alleged witness though filed was not proved; that even after recording of the name of the respondent as landlord in Municipal record the petitioner did not challenge it and that he did not file any appeal against mutation of name of respondent landlord so much so even the free hold deed executed in favour of the landlord respondent was also not challenged by the petitioner. 21. He also submits that the Court below on these circumstances recorded findings of facts that need of the landlord was bona fide and as the tenant had an alternative accommodation in her possession in vacant condition which was acquired by his wife, therefore, his objections were barred by explanation I of section 21 of Act No. 13 of 1972. It is stated that as the landlord is residing in a tenanted accommodation where vacancy has been declared, his bona fide need and comparative hardship have rightly been found to be more than that of the petitioner tenant. 22. Learned Counsel for the respondent further submits that the question of title can be gone into by the Court below incidentally and the Prescribed Authority can decide the disputed relationship of landlord and tenant even on the basis of evidence on record and legal effect of a document can only be taken away by setting aside/cancellation of such document which otherwise is binding. It is stated that the name recorded in mutation proceedings as landlord would not confer any title upon such a person but a presumption with regard to his nature of possession can always be drawn and that any person claiming title on the basis of oral Will shall have to prove the same. 23. In support of the aforesaid submission, learned Counsel for the respondent has placed reliance upon following rulings: 1. 23. In support of the aforesaid submission, learned Counsel for the respondent has placed reliance upon following rulings: 1. Shamim Akhtar v. Iqbal Ahmad and another1. 2. Mangi Lal v. Vth A.D. & S.J. Lucknow and others2 (Paragraphs 10, 11 and 12), 3. Awadh Nath and others v. Prescribed Authority, Gorakhpur and others3, (Paragraphs 10 and 11) 4. D.S. Victor v. The District Judge, Bareilly and others4, (Paragraph 7) 1. 2001 (42) ALR 131 (SC). 2. 1981 ARC 492. 3. 1996 (11) ARC 634=1997 (29) ALR 358. 4. 1978 ARC 413=1978 (4) ALR 769. 5. Sri Ram and another v. 1st Additional District Judge and others1, (Paragraphs 5 and 7) 6. Kamakshi Builders v. Ambedkar Educational Society and others2 (Paragarphs 13, 15, 21 and 29). 1. 2001 (1) AWC 862 (SC)=2001 (43) ALR 244 (SC). 2. (2007) 12 SCC 27 =2007 (68) ALR 31 (SC) (Sum). In Shamim Akhtar v. Iqbal Ahmad and another it has been held that question of title can be gone into incidentally. In paragraphs 10, 11 and 12 of the judgment rendered in Mangi Lal v. Vth A.D. & S.J. Lucknow and others it has been held that: "10. On the question of title and relationship of landlord and tenant,the contention of Sri R.N. Trivedi is that as serious controversy was raised in this regard,it was not open to the Prescribed Authority or to the Additional District Judge, Appellate Authority under section 22 of the Act, to have gone into the question and that the matter could only be decided by the Civil Court. He has in this connection relied on D.S. Victor v. District Judge, Bareilly and Smt. Kailashwati v. IV Addl. District Judge. These cases, however, have been overruled by a Division Bench decision in Kunwar Gulab Singh v. Zila Purti Adhikari in which it was held that the cases were contrary to the law laid down in Om Prakash Gupta v. Rattan Singh and another, a decision of the Constitution Bench, which was not brought to the notice of the learned Single Judge who had decided the above noted cases. Sri R.N. Trivedi has tried to distinguish Kunwar Gulab Singh's case on the ground of facts inasmuch as the dispute therein was as to which of the co-owners was landlord and that dispute had arisen in a case under section 16 and not under section 21. Sri R.N. Trivedi has tried to distinguish Kunwar Gulab Singh's case on the ground of facts inasmuch as the dispute therein was as to which of the co-owners was landlord and that dispute had arisen in a case under section 16 and not under section 21. The principle applicable, is however, the same, and the Single Judge decisions were expressly overruled by the Division Bench whose decision is binding on me. The contention of learned Counsel Sri R.N. Trivedi that the Supreme Court ruling is applicable only where the controversy with regard to title is not of a serious nature does not appeal to me. Every controversy which constitute a lis between the parties is required to be determined by the Court or the Tribunal before which it is presented, and the competency of the Tribunal cannot be dependent on the simplicity or complicated nature of lis. It was made clear by their Lordships of the Supreme Court that the Tribunal had the jurisdiction to decide such dispute, though the decision of the Tribunal" may not be in res judicata a regular suit in which a similar suit may directly arise for decision. 11. Even if the distinction sought to be made out by Sri Trivedi had any merit, the instant case was, to my mind, a case of mere denial of title which did not merit any serious attention. The written statement filed on behalf of the petitioner in the case under section 21 has not been annexed to the writ petition. The affidavit filed in support of the written statement is Annexure-5 to the petition. All that was asserted in this affidavit on the question of title was the averments in paras 1 and 2 which are as follows: "1. That ownership of the applicants and their being landlords are both denied. The alleged sale-deed does not pass any title to the applicants. 2. That the contents of para 2 of the application are denied. In the absence of specific allegations that the opposite party is a tenant, the present application is not maintainable and the Court has no jurisdiction to entertain the application." These averments are as vague as can be. They do not raise any serious controversy with regard to title. They fall within the category of a bare denial. In the absence of specific allegations that the opposite party is a tenant, the present application is not maintainable and the Court has no jurisdiction to entertain the application." These averments are as vague as can be. They do not raise any serious controversy with regard to title. They fall within the category of a bare denial. It is significant that even in the writ petition, the elaboration of the petitioner's case with regard to title contained in para 4 is merely as follows: "4. That an agreement to sell was entered into between Sri Kamta Prasad Gupta and the petitioner in respect of the eastern portion of the premises and in pursuance whereof, part of the sale consideration was paid in part preference of the contract. The petitioner is in proprietory possession of the eastern portion since September, 1967. Since after September, 1967, the petitioner did not pay any sum as rent nor any demand was made by Sri Kamta Prasad Gupta, the previous owner of the eastern portion regarding rent." 12. No date of the alleged agreement is mentioned. No copy of the agreement is filed. No indication is given as to what was the sale considerration agreed and what was the part thereof paid in alleged part performance. The month September, 1967, was mentioned, but without any date. It was only at a very large stage after particular issue had been referred to Full Bench and the opinion of the Full Bench returned that the petitioner came out with an incomplete (the names of witnesses are left blank) and ordinary copy of an alleged agreement dated 14th September, 1967. This was filed with amendment application moved on 4.8.80, while the writ petition had been filed on 1.9.1977. No receipt of any part of the sale consideration has been produced and even if the alleged agreement be assumed to have been actually entered into, there is nothing to show that the petitioner had complied with its terms. It appears that earlier the previous owner Kamta Prasad Gupta had filed a suit for arrears of rent and ejectment against the petitioner on 1.2.1972, vide copy of the plaint Annexure 1, to which the petitioner has filed a written statement Annexure 2 to the writ petition. It appears that earlier the previous owner Kamta Prasad Gupta had filed a suit for arrears of rent and ejectment against the petitioner on 1.2.1972, vide copy of the plaint Annexure 1, to which the petitioner has filed a written statement Annexure 2 to the writ petition. Even in this written statement the plea with regard to denial of title contained in paras 1, 9, 10, 11, 12, 13, 16 and 18 was quite vague. The contention of the petitioner in regard to title is thus, frivolous and untenable." 24. In Awadh Nath and others v. Prescribed Authority, Gorakhpur and others, it has been held in paragraphs 10 and 11 of the judgment thus: "10. So far as the apprehension of the learned Counsel for the petitioner, that the Prescribed Authority shall not decide the question regarding relationship of landlord a tenant between the parties, is concerned, the same is totally misconceived. There is no such indication in the impugned order. However, I may refer to sub-section (1) of section 21 of the Act, which provides as under: "21. Proceedings for release of building under occupation of tenant.--(1) The Prescribed Authority may, on an application ofthe landlord in that behalf, order the eviction of a tenant from the building under tenancy or any specified part thereof if it is satisfied that any of the following grounds exists namely..........." 11. It is evident from the aforesaid provision that application under section 21 can be filed only by the landlord against a tenant. If the tenant, at the risk of forfeiture of his tenancy rights denies the relationship of landlord and tenant between the parties, it will be obligatory upon the Prescribed Authority to decide the same on the basis of evidence produced by the parties. A reference in this regard may be made to the decision in the following cases: 1. Chandrika Prasad v. District Judge, Raibareili and others1, 2. Ram Chandra Gupta v. VIIIth A.D.J., Kanpur and others2. 3. Ram Narain Saxena v. IIIrd A.D.J., Etah and another3. 4. Smt. Suman Lata v. Prescribed Authority (Munsif), Etawah and others4." 1. 1981 ARC 346. 2. 1982 (2) ARC 236. 3. 1985 (2) ARC 381. 4. 1985 (2) ARC 454. 25. In paragraph 7 of the judgment rendered in D.S. Victor v. The District Judge, Bareilly and others (supra) it has been held that: "7. 4. Smt. Suman Lata v. Prescribed Authority (Munsif), Etawah and others4." 1. 1981 ARC 346. 2. 1982 (2) ARC 236. 3. 1985 (2) ARC 381. 4. 1985 (2) ARC 454. 25. In paragraph 7 of the judgment rendered in D.S. Victor v. The District Judge, Bareilly and others (supra) it has been held that: "7. As I may not be understood as saying that in no case the question of title can be decided by an authority dealing with an application under section 21, I wish to make it clear that this is a question the decision of which has to differ from case to case. It is not possible to lay down any criterian exhaustively which has to be taken into consideration, while deciding this question. It may, however, be mentioned that where an authority finds that the question of title of the landlord has been disputed by a tenant with an ulterior motive for the purpose of delaying the disposal, the Prescribed Authority would certainly be entitled to investigate into title and decide it. In such a case the question of title could be said to have incidentally arisen for decision. Similarly, where a dispute of title raised by a tenant appears to be frivolous, the Prescribed Authority would be fully competent to decide the same. A plea is said to be frivolous, where it appears from bare inspection to lacking in legal sufficiency, and where in view of the facts pleaded it does not present a plausible defence. A plea is also said to be frivolous, where it is interposed for mere purpose of delay or to embrass the apponent. In such a case, it is so clearly and pulpably bad as to require any argument. A sham plea is good on its face; but false in fact. It may by all appearances constitute a direct defence but is a pretence because false and because not pleaded in good faith. All these things have been said by me only by way of illustration." 26. In paragraphs 5 and 7 of the judgment rendered in Sri Ram and another v. 1st Additional District Judge and other, it has been held that: "5. The correctness of the decision in the above case has not been challenged before us. In fact, the said decision was approved in Smt. Bismillah v. Janeshwar Prasad and others5. In paragraphs 5 and 7 of the judgment rendered in Sri Ram and another v. 1st Additional District Judge and other, it has been held that: "5. The correctness of the decision in the above case has not been challenged before us. In fact, the said decision was approved in Smt. Bismillah v. Janeshwar Prasad and others5. In Gorakh Nath Dubey (supra), which is strongly relied upon by learned Counsel for the respondents, it was held thus: 5. (1990) 1 SCC 207 . "but..., where there is a document the legal effect of which can only be taken away by setting it aside or its cancellation, it could be urged that the consolidation authorities have no power to cancel the deed, and, therefore, it must be held to be binding on them so long as it is not cancelled by a Court having the power to cancel it...... 7. On analysis of the decisions cited above, we are of the opinion that where a recorded tenure holder, having, a prima facie title and in possession files suit in the Civil Court for cancellation of sale-deed having obtained on the ground of fraud or impersonation cannot be directed to file a suit for declaration in the Revenue Court-reason being that in such a case, prima facie, the title of the recorded tenure holder is not under cloud. He does not require declaration of his title to the land. The position would be different where a person not being a recorded terrure holder seeks cancellation of sale-deed by filing a suit in the Civil Court on the ground of fraud or impersonation. There necessarily the plaintiff is required to seek a declaration of his title and, therefore, he may be directed to approach the Revenue Court, as the sale-deed being void has to be ignored for giving him relief for declaration and possession." 27. In paragraphs 13, 15, 21 and 29 of the judgment rendered in Kamakshi Builders v. Ambedkar Educational Society and others, the Apex Court held that: "13. Respondent No.3 was admittedly the owner of the property. As his ownership had not been disputed, the burden was respondent No. 1 to prove his title. It has, as noticed hereinbefore, claimed title: (i) by reason or an oral gift: and (ii) by adverse possession. 15. Respondent No.3 was admittedly the owner of the property. As his ownership had not been disputed, the burden was respondent No. 1 to prove his title. It has, as noticed hereinbefore, claimed title: (i) by reason or an oral gift: and (ii) by adverse possession. 15. It is expected of a person who has obtained title by reason of an oral gift; Hiba although permissible in law, but a heavy burden lay on him to prove the same. Respondent No. 1 is an educational society. It was running an institution on the suit property. It was, therefore, expected of it that it would insist on execution of a registered deed of gift. 21. The learned Trial Judge cannot be said to have committed any error in noticing the fact that respondent No. 1 on its own showing did not file any application for mutation of its name before the Revenue authorities. It, even did not take any step to let others know about its change of status, be it the revenue department, or be it other authorities with which it was dealing, namely, the University Grants Commission, Government of Andhra Pradesh, Osmania University, or even Municipal Corporation of Hyderabad. An application for mutation of one's name in the revenue records by the parties although would not by itself confer any title, but then a presumption in regard to the nature of possession can be drawn in that behalf. Had such an application been filed by respondent No. 1 before the concerned authorities, at least it could have been shown that it had claimed possession on its own right, not as a tenant. 29. Reliance placed by Mr. Parasaran on Article 67 of the Limitation Act is also not apposite. It is a special provision. It would apply in a case where a tenant has ceased to be a tenant in terms of the provisions of the Andhra Pradesh (Rent and Eviction Control) Act. A tenant continues to be a tenant despite termination of tenancy. Article 67 would not be attracted in a case where a tenant remains a statutory tenant. In a case of this nature, Article 65 would apply. As the claim of respondent No.1 was based on a title, the onus was on him to prove the same. A tenant continues to be a tenant despite termination of tenancy. Article 67 would not be attracted in a case where a tenant remains a statutory tenant. In a case of this nature, Article 65 would apply. As the claim of respondent No.1 was based on a title, the onus was on him to prove the same. Respondent No. 1 failed to discharge the same and, therefore, the learned Trial Judge, in our opinion, has committed no error in passing a decree in favour of the plaintiff." 28. After hearing the Counsel for the parties and on perusal of record it appears that the parties led evidence in support of their contentions. The tenant could not produce any evidence to support the theory of alleged oral Will. 29. Learned Counsel for the respondent landlord has submitted that the landlord filed orders of Municipal authorities dated 12.6.1996 and 5.12.1997 (Annexures CA-2 and 3) by means of which the name of the landlord was mutated and objections of the tenant were rejected and an observation was made that in any case any party is aggrieved he can get his right decided by competent Court; that even that order of Nagar Nigam was never challenged by tenant by filing appeal or by filing declaratory suit and the orders became final and the respondent landlord filed copy of death certificate of Qamarul Islam showing that he was never residing in accommodation in dispute and in fact resided in 535 Hasan Manzil which is in front of house of landlord, copy of voter list (Annexure CA-6) as well as certificate issued by the Post Master Kalyani Devi Post Office dated 26.7.2008 were filed showing answering respondent as his nominee. A letter of permission dated 1.1.1980 issued by late Qamural Islam granting permission to the petitioner as a tenant to get electric meter installed, order declaring vacancy in premises, where the landlord residing as tenant, free hold deed dated 30.10.2000 in favour of the landlord, affidavit of Mohd. A letter of permission dated 1.1.1980 issued by late Qamural Islam granting permission to the petitioner as a tenant to get electric meter installed, order declaring vacancy in premises, where the landlord residing as tenant, free hold deed dated 30.10.2000 in favour of the landlord, affidavit of Mohd. Irsad other tenants stating that they were paying rent to the landlord and the petitioner was also tenant and was paying rent even terms with late Qamarul Islam were not cordial, these affidavits were not denied specifically and affidavit petitioner stating that the electric connection was taken with the consent of landlord and owner late Qamarul Islam are being filed herewith collectively ( Annexure-9 to the counter-affidavit), that even the petitioner has admitted and given such letter to electricity department but tried to impose his case, this is clear admission of petitioner regarding tenancy. 30. Another affidavit C.A.1-A of Wazid Ali another tenant was also filed before the Courts below in which it was averred that he was also paying the rent to the respondent as landlord of the premises in suit. 31. The rulings cited by the learned Counsel for the respondent are fully applicable and support the case of the respondent. 32. In view of the above I am of the considered opinion that since the petitioner has failed to prove his case the respondent vide section 3 (g) (ii), would be the landlord as he is the only male lineal descendant and vide section 3 (j), he is entitled to receive the rent unless otherwise proved by the petitioner. A combined reading of these aforesaid provisions makes it clear that the respondent would step into the shoes of late Qamarul Islam and become landlord and owner of the accommodation in dispute being his natural heir and therefore, he does not require to prove his title, there being no other legal heirs and representatives of the estate of late Qamarul Islam except the petitioner who could not prove her case of becoming owner of the property in question claimed to have been given to him by oral Will by late Qamarul Islam. It was upon Bilqis Begum and her husband to prove the claim of ownership by oral Will which they utterly failed to prove. 33. It was upon Bilqis Begum and her husband to prove the claim of ownership by oral Will which they utterly failed to prove. 33. As regards the question of title, the Rent Control Authorities incidentally decide the question of title raised by the tenant having not been able to prove himself to be the owner of the property in the facts and circumstances of the case. The authorities are not power less to decide a matter of title incidentally on the basis of evidence on record and come to the conclusion regarding the factum of true ownership. The legal effect of a document can only be taken away either by setting it aside or its cancellation by a competent Court. However, in the present case, neither the freehold deed nor the assessment order was ever challenged by the petitioner and therefore, effect of these documents are binding on the parties. The respondent in these circumstances is not required to get his rights declared by means of a suit. It may be noted that petitioner did not challenge the mutation proceedings out the free hold rights of the respondent as landlord in suit and at the most it can be said that petitioner and his wife Bilqis Begum were licensee of the respondent during the period 1996 to 2004 when these proceedings were taking place after death of Qamarul Islam. It may also be noted that late Qamarul Islam had acknowledged the status of the petitioner as tenant for the purpose of electric connection in his name. The vacancy had been notified by the earlier tenant to the Prescribed Authority when the accommodation had been vacated in 1991. The petitioner was never allotted the accommodation in dispute by the Rent Control and Eviction Officer and was unauthorized or at the most that of a licensee as the erstwhile owner late Qamarul Islam had permitted her to stay for some period due to being allegedly in good relation with him permitting electric connection to the petitioner as tenant. 34. Moreover, an oral Will has to be proved in accordance with law by producing witness. Burden of proof in such cases is always on the person who claim benefit of oral Will but this burden has not been discharged by the petitioner to shift the onus upon the respondent. 35. 34. Moreover, an oral Will has to be proved in accordance with law by producing witness. Burden of proof in such cases is always on the person who claim benefit of oral Will but this burden has not been discharged by the petitioner to shift the onus upon the respondent. 35. It is true that revenue records do not confer any title but a presumption regarding title can always be drawn on the basis of revenue record, if not proved. Otherwise, the present writ petition is concluded by finding of fact and in view of overwhelming record that petitioner is not the owner of the property in dispute, does not require any interference under Article 226 of the Constitution. 36. The case law cited by the learned Counsel for the petitioner in Vijay Lata Sharma (supra) is not applicable to the facts and circumstances of the present case. 37. The writ petition is accordingly, dismissed. Interim order is vacated. No order as to costs. Petition Dismissed.