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2015 DIGILAW 109 (ALL)

Mohd. Ali v. District Judge Pratapgarh

2015-01-16

MAHENDRA DAYAL

body2015
JUDGMENT Mahendra Dayal,J. The tenant-petitioner has filed this writ petition assailing the judgment and order dated 28.10.2014, passed by the District Judge, Pratapgarh, in Rent Appeal No.4 of 2012, whereby the appeal was allowed and the tenant-petitioner was directed to vacate the disputed shop within a period of 30 days from the date of judgment. 2. I have heard Sri Abdul Razzaque Khan, learned counsel for the petitioner and Sri Mohd. Arif Khan, learned Senior Counsel, assisted by Sri Mohd. Aslam Khan Advocate, who has appeared on behalf of the contesting opposite parties no.2 and 3-landlords. 3. The brief facts giving rise to this writ petition are that the opposite parties no.2 and 3 filed an application for release under Section 21 (1)(a) of U.P. Act No.13, 1972 (hereinafter referred as the 'Act') with the allegations that the disputed house number 248 situate in Mohalla Makandruganj, District Pratapgarh was owned by one Smt Munder Bibi. She died leaving behind two sons, namely, Mehdi Hasan and Zaheer Hasan. After the death of Smt. Munder Bibi, a mutual partition took place between the two brothers, according to which, the southern half portion of the house came into the share of Zaheer Hasan while the remaining northern half portion fell into the share of Mehdi Hasan. The disputed shop is situated in the south east portion of the house which fell in the share of Zaheer Hasan. The tenant-petitioner had taken the disputed shop on rent in the year 1976 from the sons of Abrar Hasan on a monthly rent of Rs.65/- which was subsequently increased to Rs.150/-. The landlords-opposite parties no.2 and 3 purchased the southern half portion from the sons of Zaheer Hasan by means of registered sale-deed dated 15.10.2003 while the remaining half portion was purchased by them on 23.08.2003 from Anwar Hasan son of Abrar Hasan and Nisar Hasan son of Ikrar Hasan, the grand son of Abrar Hasan. Another portion of the house was purchased by the opposite parties no.2 and 3 by means of sale-deed dated 10.11.2003 and 20.11.2003 from Rizwan Hasan and Sabir Hasan and Niyaz Hasan. Thus, they became owner of the entire house including the disputed shop. The tenant-petitioner inspite of having full knowledge of the aforesaid transaction did not pay any rent to the opposite parties-landlords despite their repeated requests and demand. 4. Thus, they became owner of the entire house including the disputed shop. The tenant-petitioner inspite of having full knowledge of the aforesaid transaction did not pay any rent to the opposite parties-landlords despite their repeated requests and demand. 4. The petitioner-tenant claimed himself to be the owner of the shop in dispute by claiming that he had purchased the share of Smt. Rehana daughter of Abrar Hasan, Smt. Haseena Bibi daughter of Zahidun Nisha, Smt. Khairul Nisha daughter of Zamil Hasan and Smt. Akhtari Begum. The opposite parties-landlords served a notice upon the petitioner-tenant asking him to pay the arrears of rent and vacate the shop, but when he failed to comply with the notice, a suit for eviction was filed against him, which was decreed with costs. The needs set up by the opposite parties-landlords was to the effect that the opposite party no.2 Mumtaz Ahmad had been helping his father in the business of ready made garments which was being carried on from a rented shop and had thus sufficient experience in the said business. He, therefore, wanted a separate shop to start his own business and the shop in occupation of the petitioner-tenant was most suitable for the said purpose. It was further pleaded by the opposite parties-landlords that the petitioner tenant was not carrying on any business from the disputed shop rather the same was being done by his son, who had purchased the adjoining northern portion of house No.247 and had also purchased a double story house with a vacant shop within the municipal limits of District Pratapgarh. Thus, no hardship would be caused to the tenant-petitioner, in case, the shop in question is released and the tenant-petitioner is asked to vacate the shop in question. 5. The petitioner-tenant contested the release application inter alia on the ground that the descendants of Mehdi Hasan and Zaheer Hasan were not the only owners of the house, but there were other co-owners also, and therefore, the opposite parties-landlords did not become absolute owner of the house. It was further stated that the shop in dispute was taken on rent from the sons of Abrar Hasan, namely, Ikrar Hasan, Anwar Hasan and Rizwan Hasan and since then the business of repair and sale of bags and belts was being carried on in the said shop. It was further stated that the shop in dispute was taken on rent from the sons of Abrar Hasan, namely, Ikrar Hasan, Anwar Hasan and Rizwan Hasan and since then the business of repair and sale of bags and belts was being carried on in the said shop. The tenant-petitioner further denied the status of the opposite parties-landlords as owner-cum-landlords and also denied having any liability to pay rent to them. It was further stated by him that the rent was being deposited in the Court. The tenant-petitioner also pleaded that he had purchased the portion of house No.248 from its co-sharers by means of two separate sale-deeds and he had also become a co-owner and as such the release application was not maintainable without division of share of all the shares holders by metes and bounds. In respect of the need, the tenant-petitioner stated that there was absolutely no need of the opposite parties-landlords in respect of the shop in dispute. The landlords-opposite parties had earlier moved an application for release on the same ground, but the said application was rejected. The maintainability of the release application was also challenged on the ground that the same has been moved without serving six months mandatory notice as provided in the proviso of Section 21 of the Act. 6. Both the parties led evidence in support of their case and the prescribed authority on the basis of material placed before it came to the conclusion that since both the parties have claimed ownership and a partition suit was also pending between them, therefore, no relationship of landlords-tenant existed between the parties. Learned prescribed authority further concluded that the need of the opposite parties-landlords was not bonafidie and the hardship was in favour of the tenant-petitioner. With the aforesaid findings, of the learned prescribed authority rejected the release application. 7. Feeling aggrieved by the order rejecting the release application the opposite parties-landlords preferred rent appeal before the District Judge, Pratapgarh which was allowed by means of the impugned judgment and order. 8. With the aforesaid findings, of the learned prescribed authority rejected the release application. 7. Feeling aggrieved by the order rejecting the release application the opposite parties-landlords preferred rent appeal before the District Judge, Pratapgarh which was allowed by means of the impugned judgment and order. 8. Learned counsel for the tenant-petitioner Sri A.R.Khan has submitted that it is not in dispute that the opposite parties-landlords purchased a major portion of the house No.248 and the tenant-petitioner also purchased a part of the house by means of two registered sale-deeds and unless it is established as to whether the shop in occupation of the petitioner-tenant has fallen into the share of the opposite parties-landlords, the release application on their behalf was not maintainable. He has further argued that a suit for partition of shares is already pending in the court and that is why the tenant-petitioner had no other option except to deposit the rent in the court. The learned prescribed had rightly rejected the release application on the ground that no relationship of landlords-tenant exist between the parties. Learned counsel has further assailed the judgment of the learned appellate court on the ground that admittedly the opposite parties-landlords had not served the mandatory notice upon the tenant-petitioner as required under Section 21 of the Act, but the learned first appellate court wrongly held that since the release application was filed after a gap of three years from the date of purchase, therefore, no notice was required to be issued to the tenant-petitioner. 9. The submission on behalf of the petitioner-tenant is that a bare reading of the proviso attached to Section 21 of the Act indicates that a landlord who purchases the tenanted property, has to give notice to the tenant informing him about the said transaction and further the release application can not be filed within a period of three years from the date of purchase. The opposite parties-landlords had filed the release application only after three months from the date of purchase which was dismissed and on the same ground the second release application was moved after three years, but without issuing any notice as required by the proviso of Section 21. Thus, the release application itself was not maintainable. The opposite parties-landlords had filed the release application only after three months from the date of purchase which was dismissed and on the same ground the second release application was moved after three years, but without issuing any notice as required by the proviso of Section 21. Thus, the release application itself was not maintainable. Learned counsel for the tenant-petitioner has assailed the findings of the appellate court on the ground that the learned appellate court has found the need of the opposite parties-landlords on baseless grounds completely ignoring the fact that the opposite parties-landlords are carrying on business comfortably with their sons and the need set up by them was not bonafide. With regard to the comparative hardship, the learned appellate authority completely ignored and overlooked the fact that the tenant-petitioner had been carrying on the business in the disputed shop since last more than 35 years and had no other alternative accommodation to shift his business. 10. Sri Mohd Arif Khan, learned Senior Counsel has, on the other hand, submitted that the earlier release application had been filed within three years from the date of purchase inadvertently because no application for release could be filed within three years from the date of purchase and as such the earlier application was withdrawn and was consequently dismissed as withdrawn. The subsequent release application upon which the present writ petition has arisen, was filed after a lapse of three years from the date of purchase and as such the subsequent release application on the same ground was maintainable. With regard to the mandatory notice as required by the proviso of Section 21 of the Act, the submission of the learned counsel is that the purpose of serving a notice to the tenant after the purchase of the building by the landlords is to communicate the tenant about the transaction and apprising him of the fact that now his landlord has changed and he has to pay rent to the new landlord. When the first release application was moved soon after the purchase of the building, the petitioner-tenant became fully aware of the fact that the building has been purchased by the opposite parties-landlords and as such the purpose of serving a notice stood fulfilled. When the first release application was moved soon after the purchase of the building, the petitioner-tenant became fully aware of the fact that the building has been purchased by the opposite parties-landlords and as such the purpose of serving a notice stood fulfilled. Moreover, the subsequent release application was filed after a gap of three years from the date of purchase, therefore, no notice was required to be served upon the tenant before filing release application. The learned counsel has submitted that even if it is presumed that notice was necessary to be served upon the tenant-petitioner before filing of the release application, the earlier release application having been filed on the same ground, the same may be construed as notice to the tenant-petitioner as required in the proviso of Section 21 of the Act. 11. A reference has been made to a case reported in 2013 (100) ALR, page 756 Mohd Safiq @ Mohd Arif & others Vs. Addl. District Judge, Jaunpur in which it has been held that the release application filed after the expiry of three years from the date of purchase without serving six months notice to the tenant, was maintainable. The question of serving mandatory notice was considered by this Hon'ble Court in another case reported in 2010 (81) ALR page 842 Shiv Charan Vs. Smt. Kapoori Devi in which it was held that six months notice is required to be given to the tenant only if the release application is filed before the expiry of three years from the date of purchase. If the release application is filed after the expiry of three years from the date of purchase, no notice is required to be served upon the tenant. The Hon'ble Apex Court has also considered this matter in the case of Anwar Hasan Khan Vs. Mohd. Safi and others reported in 2001 (45) ALR page 568 in which the Hon'ble Court has held that six months notice is mandatory only when the release application is filed before the expiry of three years period from the date of purchase, but where the application is filed after the aforesaid period, no notice is required to be given. 12. The same views has been expressed by this Hon'ble Court in a recent decision reported in 2012 (91) ALR 8819 Mahesh Chandra Vs. P.C.Agarwal. 12. The same views has been expressed by this Hon'ble Court in a recent decision reported in 2012 (91) ALR 8819 Mahesh Chandra Vs. P.C.Agarwal. In this case, it has been observed that if the release application is filed after the expiry of three years from the date of purchase even without serving notice to the tenant and the tenant does not take this plea in the written statement, it would be presumed that the tenant had waived the condition of serving the notice. Thus, in view of the law laid down by this Hon'ble Court as well as by the Hon'ble Apex Court, learned appellate court was perfectly justified in holding that since the release application was filed after a gap of three years from the date of purchase and by the earlier release application the tenant-petitioner got the information of purchase by the opposite parties-landlords, the release application was maintainable. The arguments advanced on behalf of the tenant-petitioner contrary to this finding are devoid of merit. 13. The next question which arises for consideration is as to whether the release application was maintainable in view of the pendency of the partition suit between the co-sharers and the relationship of the landlords and tenant exists between the parties. The petitioner-tenant had admittedly taken the disputed shop on rent from the sons of Ikrar Hasan in the year 1976 and also had full knowledge that the opposite parties-landlords had purchased a major portion of the building by means of different sale-deed. Thereafter when the tenant-petitioner did not pay any rent to the opposite parties-landlords, a suit for eviction and recovery of arrears of rent and damages was filed against him in the court of Judge Small Causes being SCC Suit No.6 of 2006 which was decreed. In the SCC revision filed by the tenant-petitioner, the learned revisional court remanded the matter for consideration of a particular matter and the learned Judge Small Causes after remand again decreed the suit against which another revision has been filed. The judgment and decree passed by the court of Judge Small Causes clearly establishes the relationship of landlord and tenant between the parties. Moreover, the tenant-petitioner has not claimed merger of his tenancy into ownership after having purchased a small share in the house and as such the tenant-petitioner can not claim ownership of the disputed shop. The judgment and decree passed by the court of Judge Small Causes clearly establishes the relationship of landlord and tenant between the parties. Moreover, the tenant-petitioner has not claimed merger of his tenancy into ownership after having purchased a small share in the house and as such the tenant-petitioner can not claim ownership of the disputed shop. The sons of Ikrar Hasan had admittedly sold their share in the house to the opposite parties-landlords and the tenant-petitioner had admitted having taken the disputed shop on rent from them, therefore, for this reason, also it is clearly established that the opposite parties-landlords have stepped into the shoes of the earlier owner. There is also evidence on record to the effect that Smt. Hasina Bano from whom the tenant-petitioner claims to have purchased a share in the house, had filed an application for release of a shop which was in the tenancy of the father of the opposite parties-landlords, in which it was admitted by her that house no.248 was partitioned amongst it co-sharers and the southern partition shall into the share of Zaheer Hasan including the disputed shop in which the tenant-petitioner is carrying on the business. Even in the SCC suit filed by the opposite parties-landlords against the tenant-petitioner, he deposited the rent for claiming the benefit under Section 20 (4) of the Act and further in his cross-examination, he admitted the opposite parties-landlords to be his landlord, and thus, in view of the clear admission also, there is no doubt that the opposite parties no.2 and 3 are the landlords of the petitioner and there exists a relationship of landlord and tenant between them. The finding recorded by the appellate court in this regard is based on appraisal of the evidence on record and does not call for any interference. 14. The next question which requires consideration is as to whether the need set up by the opposite parties-landlords was genuine and bonafidie. The learned appellate court has recorded a finding to the effect that the need of the opposite parties-landlords is genuine and bonafidie. It is an admitted fact that the father of the opposite parties no.2 and 3 had taken a shop on rent in the house no.247 and had been carrying on the business of ready made garments. The opposite party no.2 looks after the business of his father. It is an admitted fact that the father of the opposite parties no.2 and 3 had taken a shop on rent in the house no.247 and had been carrying on the business of ready made garments. The opposite party no.2 looks after the business of his father. His younger brother, namely, Irfan is also major and his father wants to settle him in the business to be run by him from the disputed shop. The need of a landlord to set up his son in a new business has always been recognized as a bonafidie need. The petitioner-tenant had set up a defence that the original tenant of the disputed shop is about 70 and 75 years old and his sons are looking after the business of ready made garments. Apart from this, they had a shop in Chowk area and a house within the municipal limits of District Pratapgarh, therefore, the opposite parties do not require any additional accommodation. 15. There is nothing on record to indicate that the business being run from the shop under tenancy of the father of the opposite parties, is of any of the opposite parties. The sitting of the opposite party no.2 in the shop can not lead to the inference that he is carrying on business independently. In fact, his sitting in the shop with father only suggests that he extends help to his father in the business of ready made garments. It is also not denied that the younger brother of the opposite parties, namely, Irfan is major and unemployed. The opposite parties being landlord had a right to set up an independent business for their unemployed brother. The learned appellate court has on the basis of evidence on record and detailed discussions has come to the conclusion that the need set up by the opposite parties was bonafidie and genuine. 16. So far as the comparative hardship is concerned, the petitioner-tenant has six sons and three of his sons sit in the disputed shop and carry on the business of repair and sale bags and belts and the remaining three sons sit in another shop where they also carry on the business of repair and sale of bags. It is an also admitted fact that the two sons of the petitioner-tenant have purchased a part of house no.247 adjoining the disputed shop. It is an also admitted fact that the two sons of the petitioner-tenant have purchased a part of house no.247 adjoining the disputed shop. The learned appellate court while comparing the hardship, has considered that the litigation in respect of release of the shop in dispute has been pending since last more than 10 years, but the petitioner-tenant has not made any efforts to find out any alternative accommodation. This Court also can not ignore this material aspect of the matter that whenever a tenant is required to vacate the premises under his tenancy, he suffers some hardship but if such type of hardship is considered by the Court, then no application for release by the landlord can ever be allowed. When the opposite parties-landlords had purchased the house and had disclosed their intention to get the shop vacated by filing release application as well as by filing suit for arrears of rent and ejectment, the petitioner-tenant ought to have made efforts to search out some other alternative accommodation, and in fact, in order to cope up with this situation, he purchased a share in the same house but being tenant of last more than 30 years, he had been making every effort to save himself from being evicted. The learned appellate court has on the basis of the material on record has come to the conclusion that the hardship caused to the opposite parties-landlords from the refusal of the release application would be much greater than the hardship caused to the petitioner-tenant, in case, the release application is allowed. 17. Having heard the learned counsel for the parties and having considered the impugned judgment as well as material on record, I find that the learned appellate court was perfectly justified in reversing the findings arrived at by the prescribed authority and allowing the release application of the opposite-parties- landlords. 18. In the result, the writ petition is devoid of merit and is liable to be dismissed. 19. The writ petition is dismissed. However, in the circumstances of the case, the petitioner-tenant is granted three months' time to vacate the premises under his tenancy from the date of this judgment, failing which, the opposite parties-landlords shall have liberty to enforce the order of release, according to law.