Research › Search › Judgment

Allahabad High Court · body

2014 DIGILAW 2814 (ALL)

Bhairo Prasad v. Jagdish Narain

2014-09-10

PANKAJ MITHAL

body2014
JUDGMENT Pankaj Mithal,J. One Bal Kishan had three sons Jagdish Narain, Bhairo Prasad and Radha Mohan. He was living with them as a tenant in House No.11/45, Gwal Toli, Kanpur. After the death of Bal Kishan, his eldest son Jagdish Narain purchased the said house in the name of his wife vide sale deed dated 8.4.1971. His wife died in the year 1982. 2. The aforesaid Jagdish Narain son of Bal Kishan applied for release of certain portion of the house in dispute under Section 21(1)(a) of the U.P. Act No.13 of 1972 against his other two brothers Bhairo Prasad and Radha Mohan and five other persons. He contended that he has purchased the house in the name of his wife and on her death he is the owner and landlord of the same. He has no other accommodation for his residential purposes in Kanpur. The accommodation available with him in the said house is very short and in view of his growing family he requires the entire house for his residential purposes. 3. In the release application he further contended that his brother Bairo Prasad i.e. petitioner is living in a portion of the said house consisting of one room, one Kothri and some open space on the ground floor, a room, a courtyard or Verandah on the first floor as a tenant at a rent of Rs.30/- per month. This portion is also bona fidely need by him for the residential purposes of his family. 4. In this writ petition the court is only concern with the aforesaid portion alleged to be in tenancy and occupation of the petitioner. 5. The release application was allowed on 23.12.1988 by the Prescribed Authority against all including the petitioner and his brother Radha Mohan. Accordingly, both of them preferred an appeal under Section 22 of the Act which was dismissed on 20.1.1992 by the appellate court of Additional District Judge. 6. Apart from filing the appeal, petitioner had moved an application to set aside/recall the order of the Prescribed Authority dated 23.12.1988 which was registered as Misc. Case No.14/74/92. The said application/case was dismissed vide order dated 28.1.2006. It was challenged by the petitioner in appeal before the District Judge. The appeal was dismissed on 31.3.2006. 7. 6. Apart from filing the appeal, petitioner had moved an application to set aside/recall the order of the Prescribed Authority dated 23.12.1988 which was registered as Misc. Case No.14/74/92. The said application/case was dismissed vide order dated 28.1.2006. It was challenged by the petitioner in appeal before the District Judge. The appeal was dismissed on 31.3.2006. 7. After the appeal filed under Section 22 of the Act against the order of release was dismissed on 20.1.1992, petitioner moved an application before the appellate authority to recall the said order. It was registered as Misc. Case No.11/74/92. It was dismissed on 7.8.2001. Petitioner applied for its recall/review and the said application was also rejected on 6.9.2001. 8. Petitioner preferred Writ Petition No.23914 of 2006 challenging the order of release dated 23.12.1988 passed by the Prescribed Authority and the order of the District Judge dated 31.3.2006 dismissing his appeal arising out of the order dated 28.1.2006 rejecting his application to set aside or recall the order of the Prescribed Authority. 9. He filed another Writ Petition No.40870 of 2001 challenging the order of the appellate court dated 7.8.2001 by which his application for recalling the judgment and order dated 20.1.1992 was rejected and also the order dated 6.9.2001 rejecting his review application thereof. 10. In the above writ petitions this Court by an interlocutory order dated 19.2.2007 directed the appellate court to get the signatures of the petitioner appearing on the memo of appeal, Vakalatnama, written statement examined from his admitted signatures and to return the finding thereof within three months. This direction became necessary as the petitioner had been contending that he had not engaged any counsel in the release application and had not filed any written statement or appeal. The appellate court below vide order dated 7.1.2008 submitted its finding to the High Court that all the above documents bear the signatures of the petitioner. Once the said finding of the appellate court was placed before the writ court, petitioner applied for amending the prayer of Writ Petition No.40870 of 2001 so as to add challenge to the order dated 7.1.2008 of the appellate court. 11. Both the above writ petitions were finally decided by the High Court vide judgment and order dated 20.10.2008. Once the said finding of the appellate court was placed before the writ court, petitioner applied for amending the prayer of Writ Petition No.40870 of 2001 so as to add challenge to the order dated 7.1.2008 of the appellate court. 11. Both the above writ petitions were finally decided by the High Court vide judgment and order dated 20.10.2008. The writ petition No.23914 of 2006 was dismissed and, as such, the challenge to the order of release dated 23.12.1988 passed by the Prescribed Authority and the order dated 31.3.2006 failed. The Writ Petition No.40870 of 2001 was disposed of after setting aside the judgment and order of the appellate court dated 20.1.1992 and directing it to decide the appeal on merits within a specified period as the Court was of the opinion that the appeal was not adjudicated on merits. 12. It is in pursuance of the above judgment and order of the High Court that the appeal has been re-decided on merits vide judgment and order dated 20.5.2009. 13. The petitioner alone has filed the present writ petition challenging the appellate judgment and order dated 20.5.2009 dismissing the appeal and the order dated 15.4.2009 by which certain applications of the petitioner filed before the appellate court after remand were decided. 14. It may be pertinent to point out at this stage that the petition was filed on 13th June, 2009 with an application for urgency but till date the petition had not been argued on merits and is being kept pending by seeking adjournments for one reason or the other. On enquiry, it has been revealed that the order of release passed by the Prescribed Authority and as affirmed by the appellate court till date has not been implemented as the petitioner had pressurised the executing court not to proceed as the validity of the release order is under challenge in the present writ petition. 15. I have heard Sri M.P.Srivastava, learned counsel for the petitioner and Sri Atul Dayal, learned counsel for the respondents finally on the merit of the writ petition on the basis of the facts stated in the writ petition and as revealed from the documents annexed thereto. 16. 15. I have heard Sri M.P.Srivastava, learned counsel for the petitioner and Sri Atul Dayal, learned counsel for the respondents finally on the merit of the writ petition on the basis of the facts stated in the writ petition and as revealed from the documents annexed thereto. 16. Sri M.P. Srivastava, learned counsel for the petitioner has raised three arguments: (i) the release application against the brother is not maintainable; (ii) the courts below have erred in allowing the release application on the basis of the pleadings alone; and (iii) the appellate judgment stands vitiated for not following the directions of the High Court as contained in its order dated 20.10.2008. 17. In attacking the order dated 15.4.2009 passed by the appellate court deciding some of the applications of the petitioner, counsel for the petitioner submitted that he would be satisfied if two of the documents, namely, the plaint of Suit No.1321 of 2001 and the order dated 19.1.2005 passed in Suit No.336 of 1995 are taken into account. 18. Sri Dayal had very fairly agreed to the above proposition provided the Court takes note of a further fact that the order dated 19.1.2005 has been set aside on 8.5.2014. 19. The first submission is to the effect that the petitioner is not a tenant and, therefore, the release application against him under Section 21 of the Act is not maintainable. 20. There can be no two opinions that a release application under Section 21 of the Act can be filed by the landlord for the eviction of the tenant. Therefore, the existence of relationship of landlord and tenant between the parties is sine qua non for maintaining the release application. There is also no dispute that the petitioner and respondents are real brothers. They were living in the house in dispute along with their father late Bal Kishan who was the tenant. On the death of the original tenant Bal Kishan, the tenancy devolved upon his heirs as were normally residing with him. Since both petitioner and respondent were residing with him, in view of definition of the tenant as contained under Section 3 (a) of the Act they became joint tenants along with their third brother. 21. The house was subsequently purchased by the wife of the respondent. She, therefore, became the exclusive owner of the same. On her death its ownership devolved upon the respondent. 21. The house was subsequently purchased by the wife of the respondent. She, therefore, became the exclusive owner of the same. On her death its ownership devolved upon the respondent. In this manner, respondent stepped into the shoes of the original owner and landlord. The status of the petitioner who had acquired joint tenancy became that of a tenant. 22. The respondent in paragraph 19 of the release application has clearly pleaded that the opposite party 2 and 3 i.e. the petitioner Bhairo Prasad and the other brother Radha Mohan are tenants of the portion as described therein at a rent of Rs.30/- per month and that they have agreed to vacate the accommodation for the purposes of demolition and reconstruction. The averments made in paragraph 19 of the release application were not denied by the petitioner in the written statement. The written statement has been found to be genuine bearing his signatures. Thus, the petitioner admits himself to be the tenant. Accordingly, relationship of landlord and tenant between them stands duly proved. 23. Counsel for the petitioner has placed reliance upon the judgment and order dated 19.1.2005 passed in SCC Suit No.336 of 1995 (Jagdish Narain Vs. Bhairo Prasad.) On the basis of the said judgment he submitted that in the above suit between the parties it has been found that there is no relationship of landlord and tenant between them. However, the said judgment and order has been set aside by the court of Additional District Judge on 8.5.2014 in SCC Revision No.19 of 2005. A copy of the above order was produced before the Court during the course of the arguments and it was not disputed. The court took it on record as it is a court of record. 24. In view of the revisional order, the findings of the order dated 19.1.2005 are meaningless and have lost all relevance. 25. It is not the case of the petitioner that he had never paid rent to the respondent or that he occupied the disputed portion of the house in some other capacity. 26. In view of the aforesaid facts and circumstances, there is no escape from the conclusion that the petitioner is a tenant and that the release application against him is maintainable in law. 27. 26. In view of the aforesaid facts and circumstances, there is no escape from the conclusion that the petitioner is a tenant and that the release application against him is maintainable in law. 27. The second submission of learned counsel for the petitioner is that the release application has been allowed only on the basis of the pleadings. 28. The argument is without any substance. The Prescribed Authority as well as the appellate authority both have considered the pleadings and the material on record in allowing the release application. 29. The courts below have concurrently found the need of the respondent to be bona fide and that the accommodation is in a dilapidated condition which requires demolition and reconstruction. The respondent has submitted the proposed plan in conformity with the bye laws, the estimate of expenditure for its demolition and reconstruction and a report that the building is in a dilapidated condition. The respondent also furnished proof of availability of sufficient fund to demolish and reconstruct it as per the estimate. The petitioner had not adduced much evidence to prove the contrary. 30. Counsel for the petitioner was unable to point out any particular evidence which may have been left out from consideration. Thus, on the basis of the pleadings and the evidence of the respondent in support thereof and in the absence of any documentary evidence to prove the contrary, the courts below were left with no option but to decide in favour of the respondent. 31. Lastly, coming to the argument that the appellate judgment is vitiated for non compliance of the directions of the High Court contained in the judgment and order dated 20.10.2008. The High Court has observed therein that both the brothers are fighting tooth and nail, and as the appeal was not decided on merits it is appropriate in the ends of justice that the appellate order dated 20.01.1992 be quashed and the matter be directed to be decided afresh on merits. The court repelled all arguments of the petitioner that fraud was played upon him; he had not participated in the proceedings; and that he had not signed Vakalatnama and filed written statement. Consequently, the appellate order dated 20.01.1992 was quashed and the appeal was directed to be decided on merits. The order of the High Court contains no further direction. 32. Consequently, the appellate order dated 20.01.1992 was quashed and the appeal was directed to be decided on merits. The order of the High Court contains no further direction. 32. In view of the above, as there were no other directions of the High Court, the contention that the appellate order is not inconformity with the directions of the High Court is baseless and in unacceptable. 33. The petitioner wanted the Court to consider copy of the plaint of Original Suit No.1321 of 2001 Bhairo Prasad Vs. Jagdish Narain and others but the said plaint is not enclosed with the petition and the counsel failed to show the benefit he wants to derive from the same. Thus, the plaint of the said suit is not considered to be a material piece of evidence. 34. In the totality of the above facts and circumstances, I find no merit in this writ petition and the same is dismissed.