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2017 DIGILAW 2770 (ALL)

Rammo Devi v. Jamuna Narayan

2017-11-29

VIVEK KUMAR BIRLA

body2017
JUDGMENT : 1. Heard learned counsel for the tenant-petitioner as well as Ram Kumar Pal, learned counsel for the landlord-respondent and perused the record. 2. Present petition has been filed challenging the judgment and order dated 13.5.2016 passed by the 1st Additional Judge (Small Causes)/Prescribed Authority, Kanpur Nagar in Rent Case No. 18 of 2011 (Jamuna Narayan vs. Rammo Devi) as well the impugned judgment and order dated 23.8.2017 passed by the Additional District Judge, Court No. 15, Kanpur Nagar in Rent Appeal No. 53 of 2016 (Rammo Devi vs. Jamuna Narayan). 3. By the impugned judgment and orders, the release application filed by the landlord (respondent herein) was allowed, against which the appeal filed by the tenant (petitioner herein) was dismissed. The release application was filed on the ground that Narendra Singh (husband of the tenant-Rammo Devi @ Rama Devi) was originally tenant in the house in question. After the death of Narendra Singh, the tenant along with her three sons is living in the present accommodation, which consists one room tin shed and common latrin in the entire second floor of the house. In the release application it was claimed that two sons of the landlord are living in Kanpur and because of non-availability of space, the landlord along with his wife is living in village. The family consists about ten members and proper residential accommodation for the entire house is required. It was also claimed by the landlord that the tenant has one alternative accommodation in her name, which is available to her for shifting. 4. The release application was contested by the tenant on various grounds including that the landlord is not in fact the owner of the house and he only used to collect the rent. It was also claimed that the husband of the defendant Narendra Singh and his father jointly were the tenant in the house and all the legal heirs have not been impleaded in the release application, therefore, the release application is not maintainable. The findings were recorded against the tenant and it was found that the plaintiff was the landlord and owner of the house in question, which he has received by means of registered gift deed executed by his maternal grand-mother. 5. The findings were recorded against the tenant and it was found that the plaintiff was the landlord and owner of the house in question, which he has received by means of registered gift deed executed by his maternal grand-mother. 5. Submission of the learned counsel for the tenant-petitioner is that findings recorded by the Courts below are totally perverse as the landlord is not living in Kanpur and his sons have also separate residential accommodation wherein they are residing. It is next submitted that all the joint tenants have not been impleaded as party and therefore, the suit is not maintainable. The ownership of the landlord was also denied and he submits that finding in this respect is incorrect. 6. Per contra, learned counsel for the landlord-respondent has supported the judgments and orders impugned herein and submitted that no interference is warranted in the findings recorded by the Court below. 7. I have considered the rival submissions and perused the record. 8. Insofar as the bona fide need is concerned, the same was found in favour of the landlord as he has large family and the space available for residential purpose was quite small and landlord along with wife is forced to live in village. The case put up by the tenant was that Narendra Singh was married and had sons and daughter also but wife is living in Pune, Maharashtra. This case was disbelieved on scrutiny of documentary evidence. Even otherwise, assuming the case of the tenant to be true that wife of Narendra Singh i.e. Meenu Singh, if at all she was the wife of Narendra singh, was living in Maharashtra and therefore, she has no concern with this. 9. The comparative hardship was found in favour of the landlord. On evidence specific assertion was made by the landlord that the tenant has her own house being house no. 832, W-2 Anand Vihar, Naubasta, Kanpur Nagar and no evidence contrary to the same was given by the tenant. In such view of the matter, the comparative hardship was also recorded in favour of the landlord. 10. Both the Courts below have recorded a finding that the tenant has her own house as described above and is getting pension whereas the landlord has a family of ten members and small portion of the house is available to him and therefore, the need is bona fide. 10. Both the Courts below have recorded a finding that the tenant has her own house as described above and is getting pension whereas the landlord has a family of ten members and small portion of the house is available to him and therefore, the need is bona fide. All such concurrent findings have been recorded by the Courts below on scrutiny of documentary evidence. 11. In such view of the matter, I do not find any legal infirmity in the findings so arrived at by the Courts below, therefore, the orders impugned herein are left without interference. 12. Present petition lacks merit and is accordingly dismissed. 13. At this stage, learned counsel for the petitioner-tenant prays that some time may be granted for vacating the house/shop in dispute. 14. However, having considered the facts and circumstances of the case, subject to filing of an undertaking by the petitioner-tenant before the Court below, it is provided that: (1) The tenant-petitioner shall handover the peaceful possession of the premises in question to the landlord-opposite party on or before 30.8.2018. (2) The tenant-petitioner shall file the undertaking before the Court below to the said effect within two weeks from the date of receipt of certified copy of this order; (3) The tenant-petitioner shall pay entire decretal amount within a period of two months from the date of receipt of certified copy of this order; (4) The tenant-petitioner shall pay damages @ Rs. 2,000/-per month by 07th day of every succeeding month to the landlord and if he refuses to accept, continue to deposit the same in the Court below till 30.8.2018 or till the date he vacates the premises, whichever is earlier and the landlord shall be at liberty to withdraw the said amount; (5) In the undertaking the tenant-petitioner shall also state that he will not create any interest in favour of the third party in the premises in dispute; (6) Subject to filing of the said undertaking, the tenant-petitioner shall not be evicted from the premises in question till the aforesaid period; (7) It is made clear that in case of default of any of the conditions mentioned herein-above, the protection granted by this Court shall stand vacated automatically. (8) In case the shop is not vacated as per the undertaking given by the petitioner, he shall also be liable for contempt. No order as to costs.