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2015 DIGILAW 3974 (ALL)

Ananti v. Tarachandra

2015-12-14

SUNITA AGARWAL

body2015
JUDGMENT Sunita Agarwal, J. – Heard learned counsel for the parties. 2. By means of the present writ petition, the petitioners are challenging the order of vacancy as also the order passed by the Revisional Court declaring the petitioners, unauthorized occupants of the building in question. 3. On the allotment application filed by one Brijendra Kumar Dixit dated 03.01.2000, the vacancy proceedings were initiated. Notice under Rule 8(2) was issued to the petitioner-occupants and the landlord. The service of notice was held sufficient. The report dated 08.02.2000 was submitted by the Rent Control and Eviction Officer after inspection in the presence of the predecessor of the petitioners namely Kishnu @ Kishan Lal, who had stated that he was in occupation of the premises for the last many years.The landlord of House no.2/23, Nawabganj Kanpur Nagar namely Tarachandra son of Late Bengali recorded his statement that two houses namely 2/22 and 2/23 Nawabganj, Kanpur originally belonging to their grandfather Late Munna Lal were divided into two equal portions during his life time in favour of his two sons namely Late Bengali Prasad Verma and Late Raja Ram. In the family partition, House No.2/22 came in the share of Late Raja Ram whereas House No.2/23 belonged to Late Bengali. They were in occupation of their respective shares and their names have duly been recorded in the municipal records. 4. One Khaprail room, tinshed, and open land in occupation of the petitioners at the ground floor is part of House No.2/23 Nawabganj, Kanpur and they had unauthorisedly occupied it without there being any allotment order. 5. The vacancy under Section 12 was declared on 29.04.2000. The Rent Control and Eviction Officer recorded a finding on the basis of decree dated 11.08.1997 passed in Original Suit No.1987 of 1992 (Tarachandra v. Kishnu @ Kishan Lal), that the portion in possession of the petitioners is part of House No.2/23 Nawabganj, Kanpur Nagar. As the petitioners are not in occupation of the premises as a licencee within the meaning of Section 2-A, nor they are tenant and as such they can at best be described as unauthorized occupants. 6. Before the Revisional Court, the petitioners had challenged the order of declaration of vacancy on two grounds. 7. The first ground was that the premises in their occupation is part of House No.2/22 Nawabganj, Kanpur Nagar, belonging to Late Raja Ram and not of House No.2/23. 8. 6. Before the Revisional Court, the petitioners had challenged the order of declaration of vacancy on two grounds. 7. The first ground was that the premises in their occupation is part of House No.2/22 Nawabganj, Kanpur Nagar, belonging to Late Raja Ram and not of House No.2/23. 8. The second ground of submission was that the occupation of the petitioners stood regularised under Section 14 of the U.P. Act No.13 of 1972 and as such they cannot be declared unauthorized occupants, there is no vacancy. 9. Both these submissions of the petitioners have been repelled by the Revisional Court. 10. Learned counsel for the petitioners has invited attention of the Court to the ex-parte order dated 19.04.1997 passed in Original Suit No.418 of 1995 which was filed by Tarachandra against Kishnu @ Kishan Lal, the predecessor of the petitioners for his ejectment from the premises in question. The plaintiff in the said suit had taken a stand that Kishan Lal was initially inducted as a licencee for a short period but he retained it unauthorisedly for a long time. The suit was rejected on the ground that the plaintiff could not establish that the open land in tenancy was part of House No.2/23, Kanpur Nagar. However, there is no finding with regard to tinshed, Khaprail room, kitchen, Latrine, bathroom and Verandah in possession of Kishan Lal and now with the petitioners and hence, the findings recorded by the court below in the judgment and order dated 19.04.1997 would be of no benefit to the petitioners. 11. So far as the decree dated 11.08.1997, passed in Original Suit No.1987 of 1992 between the petitioners and Tarachandra is concerned, admittedly there is no challenge to the said decree. An injunction has been granted against the petitioners restraining them from making construction in the premises over Khaprail, Room, tinshed, and open land treating it to be a part of House No.2/23, Nawabganj, Kanpur Nagar. 12. In this view of the matter, the Rent Control and Eviction Officer and the Revisional Court are justified in recording finding that the disputed accommodation in occupation of the petitioners is a part and parcel of House No.2/23. 12. In this view of the matter, the Rent Control and Eviction Officer and the Revisional Court are justified in recording finding that the disputed accommodation in occupation of the petitioners is a part and parcel of House No.2/23. After considering the total area of House No.2/22 and 2/23, the Rent Control and Eviction Officer has further recorded that admittedly both these accommodations are a part of one house which was equally divided in favour of his two sons by late Munna Lal. The portion in occupation of the petitioners if added in the area of House No.2/23, it would make it equal to the area of House No.2/22. The accommodation in question, therefore, has to be treated a part of House No.2/23. 13. The second ground of submission of learned counsel for the petitioners is that since they are in occupation of this premises since 1953, they are old occupants and cannot be declared unauthorized occupants by invoking Section 12 of U.P. Act No.13 of 1972. Their tenancy should be regularised under Section 14 of U.P. Act No.13 of 1972. 14. This submission of the learned counsel for the petitioners cannot be accepted for the reason that the petitioners have not been able to establish that they are licencee within the meaning of Section 2-A of U.P. Act No.13 of 1972. Admittedly, they are not the tenants in the building and as such their occupation can only be termed to that of unauthorized occupants. The unauthorized occupation cannot be regularised taking benefit of Section 14 of U.P. Act No.13 of 1972. 15. No infirmity is found in the order of the Court below. 16. Though, the petitioners are declared unauthorized occupants, yet looking to the fact that they are in occupation of building for a long time and in view of the prayer of the learned counsel for the petitioner, this Court is of the view that the petitioners may be given a reasonable time to vacate the premises in question. 17. Accordingly, the petitioners shall vacate the premises in question within a period of six months subject to an undertaking to be filed before the Rent Control and Eviction Officer within a period of three weeks that they shall vacate the accommodation in question on or before 01.07.2016. 18. 17. Accordingly, the petitioners shall vacate the premises in question within a period of six months subject to an undertaking to be filed before the Rent Control and Eviction Officer within a period of three weeks that they shall vacate the accommodation in question on or before 01.07.2016. 18. In case such an undertaking is filed, no coercive action shall be taken against the petitioners for the aforesaid period. 19. However if the petitioners fail to file such an undertaking or vacate the premises in question within the time given above, appropriate proceedings for their eviction may be initiated. 20. In compliance of the order of this Court, the petitioners are depositing Rs.1,000/- per month for use and occupation w.e.f. 07.04.2009. The said amount may be withdrawn by the respondent. 21. With the above observations and directions, the writ petition is dismissed. Petition dismissed.