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Allahabad High Court · body

2010 DIGILAW 3062 (ALL)

Maya Devi and another v. Sushil Kumar Dhawan

2010-10-01

PANKAJ MITHAL

body2010
Pankaj Mithal, J.;- Heard Sri Amit Sinha, learned counsel for the petitioners. 2. This writ petition is directed against the judgments and orders of the courts below dated 17.8.2010 and 27.7.09, whereby the release application of the landlord under Section 21(1)(a) of U.P. Act No.13 of 72 has been allowed. 3. The submission of learned counsel for the petitioners is that the landlord is having sufficient accommodation in house no.77/154 and as such he has no bona fide need for the premises in dispute i.e. 77/153-B Charyari Bagh, Latus Road, Kanpur Nagar. Secondly the landlord has obtained possession of certain parts of the premises in dispute which? vacated by other tenants and his need as pleaded stand satisfied. 4. Admittedly, the? house no.77/154 is an ancestral property in which the landlord is presently residing. The said property has devolved upon the landlord and his brother Sudhir Kumar Dhawan. The landlord has his personal property i.e. the house in dispute 77/153-B and therefore? if he wants to live independently in his own house, his need for the same cannot be disputed and said to be unjustified. As far as the contention that the some of the tenants have vacated the portion of house in dispute no.77/153B, the courts below have recorded that the petitioners have not produced any evidence to prove that such portions have been so vacated by the tenants and that the landlord has actually obtained possession so as to satisfy his need. 5. In view of the above, none of the submissions raised above have any substance and are rejected. 6. Lastly, learned counsel for the petitioners has argued that the petitioners are not the owner in possession of house no.240 Kidwai Nagar and therefore the courts below have erred? in allowing the release application by holding the petitioners to be its owners. 7. It is an admitted position on record that house no.240? aforesaid was the property of the grandfather of the petitioners and as such would have devolved upon the petitioners in the normal course which fact was never disputed. No evidence was brought on record to establish that the petitioners are not the owners of the said house. Accordingly, the courts below have not committed any error in this regard also. 8. No evidence was brought on record to establish that the petitioners are not the owners of the said house. Accordingly, the courts below have not committed any error in this regard also. 8. Learned counsel proceeds to submit that the aforesaid house was actually transferred by the father of the petitioners as far back as in the year 2001 and this fact was not within the knowledge of the petitioners and as such evidence in this regard could not be brought on record before the courts below. He has annexed the sale deed in this connection to show that the house has been sold. No doubt at present the petitioners may not be the owners of the aforesaid house but in this connection they? failed to bring the necessary evidence on record before the courts below and in the absence of such evidence it cannot be said that courts below committed an error in allowing the release application. The document which was not on record before the courts below cannot be permitted to be taken on record at this stage to be read in evidence. 9. Apart from the above the defence of the petitioners was not ousted on the ground of ownership of the said house. On its basis only comparative hardship has been decided in favour of the landlord which even otherwise is also stand established. 10. In view of aforesaid facts and circumstances the matter is more or less covered by the concurrent findings of fact which have been recorded by the courts below. The said findings are not required to be interfered in exercise of writ jurisdiction. 11. The writ petition raises no legal question and I am of the view that no injustice has been done by allowing the release application of the landlord. Accordingly, I find that the writ petition has no merit and as such is dismissed. However, in the over all interest? of justice, as prayed petitioners are allowed 6 months time from today to vacate the premises in dispute provided they submit an undertaking on affidavit before the prescribed authority within a period of two weeks from today that they would vacate and peacefully hand over the possession of the same to the landlord-respondent within the aforesaid period and continues to pay the rent @ Rs.300/- per month as was being paid earlier on monthly basis till its vacation. Petition dismissed with the above observation.