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2017 DIGILAW 245 (ALL)

GULAM DASTGIR v. MOHAMMAD JAMIL

2017-01-18

MANOJ MISRA

body2017
JUDGMENT Hon’ble Manoj Misra, J.—Heard learned counsel for the petitioner and perused the record. 2. The present petition has been filed for quashing the judgment and orders dated 8.3.2013 and 14.10.2015 passed by the Prescribed Authority/Additional City Magistrate, Metropolitan, Court No. 5, Kanpur Nagar in Rent Case No. 57 of 2010 and the Additional District Judge, Court No. 12, Kanpur Nagar in Rent Appeal No. 32 of 2013 respectively. 3. A perusal of the record would go to show that the landlord-respondents 1 to 4 filed an application for release against the petitioner of a portion of House No. 88/138, Peshkar Road, Chamanganj, Kanpur Nagar. 4. The case of the landlord-respondents was that by sale-deed dated 14.10.1983, the mother of the landlord-respondents had purchased the property in question and upon her death, the landlord-respondents had become owners thereof whereas the petitioner was its tenant. The release application was filed to satisfy residential need of the family. 5. The release application was contested by the petitioner on various grounds. The ground on which the learned counsel for the petitioner has pressed this petition is that the petitioner had been tenant of a portion much larger than for which the release application was filed and, therefore, by seeking release of only part of the accommodation which was let out to the petitioner-tenant, there was splitting of tenancy. More so, the impugned order of release amounts to partition of the property which cannot be permitted in proceedings under Section 21(1)(a) of the U.P. Act No. 13 of 1972. 6. The submission of the learned counsel for the petitioner is that the mother of the landlord-respondent had purchased only a portion of the property which was let out to the petitioners and, therefore, if the release application is allowed, it would spilt the tenancy. 6. The submission of the learned counsel for the petitioner is that the mother of the landlord-respondent had purchased only a portion of the property which was let out to the petitioners and, therefore, if the release application is allowed, it would spilt the tenancy. In support of the above submission, reliance was placed on a decision of this Court in Sadanand v. Lal Ji, 1975 ALJ 209, where this Court, while dealing with an Eviction Suit under Section 3 of the U.P. (temporary) Control of Rent and Eviction Act, 1947, observed that the tenancy is one and indivisible and therefore, merely because part of the accommodation in the tenancy was a post 1951 construction, the tenant would not lose the protection provided by Act and it is not possible to decree the suit for the post 1951 construction as that would amount to splitting up of the tenancy which would be illegal. 7. The aforesaid contention of the learned counsel for the petitioner does not have force inasmuch as the limitation on the right of the landlord against splitting up of the integrity of the tenancy does not visit the assignee of the part of the reversion. In Mohar Singh v. Devi Charan, 1988 (3) SCC 63 , the Apex Court observed that it is trite proposition that the landlord cannot split the unity and integrity of the tenancy and recover possession of a part of the demised premises from the tenant. But Section 109 of the Transfer of Property Act provides a statutory exception to this rule and enables an assignee of a part of the reversion to exercise all the rights of the landlord in respect of the portion representing which the reversion is so assigned, subject, of course to the other covenant running with the land. That apart, Section 21(1) of the U.P. Act No. 13 of 1972 itself provides for splitting up tenancy inasmuch as the Prescribed Authority can order the eviction of a tenant from the building under tenancy or any specified part thereof if it is satisfied that any of the grounds mentioned in Section 21 exists. 8. That apart, Section 21(1) of the U.P. Act No. 13 of 1972 itself provides for splitting up tenancy inasmuch as the Prescribed Authority can order the eviction of a tenant from the building under tenancy or any specified part thereof if it is satisfied that any of the grounds mentioned in Section 21 exists. 8. In the instant case, the landlord-respondent had claimed ownership of the premises in question on the basis of a sale-deed which was in respect of the part for which release application was filed and, therefore, the release application was maintainable in respect of the said part. 9. Accordingly, this Court is of the view that the objection to the release order on the ground that it amounted to splitting up of tenancy and partition of the property and, therefore, vitiated in law, is not legally sustainable. 10. At this stage, the learned counsel for the petitioner submitted that there is a stair case to reach to the portion where the petitioner resides and, therefore, there is apprehension that on account of the release order, there may be interference in the easementary right of the petitioner in respect of the remaining portion of the tenanted accommodation. 11. Such apprehension is not founded on any documentary evidence and, therefore, it would not be appropriate for this Court to express any opinion on the same. Suffice to say that this aspect can be taken into consideration at the time of giving effect to the release order and, therefore, on this ground no interference is required with the orders passed by the Courts below. 12. No other point was pressed. 13. For the reasons mentioned above, this Court finds no good reason to interfere with the orders passed by the Courts below. 14. At last, learned counsel for the petitioner prayed that some reasonable time may be allowed to vacate the premises. 15. Considering the facts and circumstances, this Court is of the view that the interest of justice would be served if the petitioner is allowed time up to 30th April, 2017 to vacate the premises and handover possession to the landlord-respondent. 16. 15. Considering the facts and circumstances, this Court is of the view that the interest of justice would be served if the petitioner is allowed time up to 30th April, 2017 to vacate the premises and handover possession to the landlord-respondent. 16. Accordingly, this petition is disposed of by affirming the judgment and orders passed by the Courts below subject to the observation that for a period up to 30th April, 2017, the petitioner shall not be evicted from the premises in dispute pursuant to the release order provided, by 25.2.2017, the petitioner furnishes an undertaking alongwith an affidavit in the Court of Prescribed Authority, Kanpur Nagar that he shall handover vacant and peaceful possession of the premises in question to the landlord-respondent on 01st May, 2017. 17. It is made clear that if by 25th February, 2017 the aforesaid undertaking is not furnished before the Prescribed Authority, then the release order shall become executable forthwith. It is also made clear that if by 01st May, 2017 the petitioner fails to handover vacant and peaceful possession of the premises in question to the landlord-respondents despite undertaking, it would not only be open to the landlord-respondents to execute the release order but they may also initiate proceeding against the petitioner for contempt of Court.