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2018 DIGILAW 1711 (ALL)

Gurubhan Singh v. Ashutosh Mishra

2018-08-03

VIVEK KUMAR BIRLA

body2018
JUDGMENT : Vivek Kumar Birla, J. 1. Heard Sri Atul Dayal, learned counsel for the defendant-petitioner and Sri Kushal Kant holding brief of Sri Raj Kumar Tiwari, learned counsel for the plaintiff-respondent. 2. At the very outset, Sri Kushal Kant, learned counsel for the plaintiff-respondent submitted that he does not want to file any counter affidavit. 3. Present petition has been filed for quashing the order dated 30.4.2016 passed by the Judge Small Causes Court/Prescribed Authority, Kanpur Nagar in Rent Case No. 8 of 2009, Ashutosh Mishra vs. Gurbhan Singh and the order dated 18.5.2018 passed by Additional District Judge, Court No. 15, Kanpur Nagar in Rent Appeal No. 49 of 2016. 4. By the impugned judgment dated 30.4.2016 the release application filed by the plaintiff-respondent was allowed and the appeal filed by the defendant-petitioner was dismissed by the lower appellate court vide judgment dated 18.5.2018. The release application under Section 21(1)(a) of the Act 13 of 1972 (hereinafter referred to as the Act) was filed on the ground that the petitioner is the owner of the premises no. 128/B/13 (Plot No. 55, Block-B, Scheme No. 2), Kidwai Nagar, Kanpur measuring area 275 sq. yds. It was asserted that the original landlord of the aforesaid premises was Ram Dulari W/o Devi Shankar Mishra S/o Gaya Prasad Mishra. They purchase the property from Kanpur Development Board vide registered sale deed dated 26.9.1957, on the basis whereof name was recorded as owner in the records of Kanpur Mahapalika, Kanpur. After purchase, they constructed two tin-sheds rooms on the same, however, due to death of Devi Shankar Mishra on 29.8.1968 his widow Ram Dulari could not make any further construction. Devi Shankar Mishra had executed one Will deed dated 16.10.1961 in favour of Smt. Ram Dulari. Subsequently, Smt. Ram Dulari executed a registered Will deed dated 13.8.1981 in favour of the plaintiff-respondent herein. After death of Ram Dulari on 14.5.1998 the plaintiff-respondent became the owner of the premises and his name was recorded in the records of Kanpur Development Authority. His name was also recorded in the record of Kanpur Nagar Nigam on 15.12.1999. 5. Plaint case is that father of the present defendant-petitioner late Babu Lal was the tenant of two tin-sheds rooms upto Rs. His name was also recorded in the record of Kanpur Nagar Nigam on 15.12.1999. 5. Plaint case is that father of the present defendant-petitioner late Babu Lal was the tenant of two tin-sheds rooms upto Rs. 20/- per month and at one point of time he had deposited certain amount in the local authority and that amount was deducted from the rent payable by him. Smt. Ram Dulari use to live permanently in house B-493 Motipura Yojana, Near Balaji Dehat, Jaipur, Rajasthan and therefore, Babu Lal used to sent money orders. Taking benefit of the fact that she was living outside, late Babu Lal raised certain tin-sheds construction over the premises and after death of Babu Lal defendant-petitioner herein has acquired the tenancy. In the year 2003, the plaintiff-respondent initiated proceedings for declaration of vacancy, which was refused by the Rent Control Eviction Officer, Kanpur Nagar vide its order dated 4.9.2004, against which writ petition was filed, which is still pending before this Court. It was further asserted that at present the plaintiff-respondent is living in House No. 65/198, Moti Mohal, Kanpur Nagar alongwith his mother and due to strained relationship between his mother and his wife he wants to live in the premises in question separately. It was claimed that in his family apart from him, his wife and two daughters, cousin brother and his wife and brother-in-law and his wife are also living and therefore, it was submitted that his brother, who although working in Delhi but frequently come to Kanpur, therefore, the need is bona-fide. 6. The suit was contested by the defendant-petitioner. It was admitted that Devi Shankar Mishra purchased the property on 26.9.1957 from Kanpur Development Board. It was also admitted that Devi Shankar Mishra died on 29.8.1968. According to his Will dated 16.10.1961 Smt. Ram Dulari became owner of the premises. Rest of the contents were denied. It was stated that his father late Babu Lal was in possession even prior to allotment by the Kanpur Development Board on the aforesaid piece of land no. 55, Block-B, Scheme no. 2 and he raised construction over the portion of the property on which he was in possession and the portion in his possession was registered as House No. 128/B/13A in Kidwai Nagar, Kanpur. Rest of the house was registered as House No. 128/B/13 Kidwai Nagar, Kanpur. 55, Block-B, Scheme no. 2 and he raised construction over the portion of the property on which he was in possession and the portion in his possession was registered as House No. 128/B/13A in Kidwai Nagar, Kanpur. Rest of the house was registered as House No. 128/B/13 Kidwai Nagar, Kanpur. It was asserted that Babu Lal use to pay house tax and water tax as occupant of House No. 128/B/13A and these taxes were never paid by Ram Dulari. It was asserted that Ram Dulari use to live in Kanpur Nagar only and seldom visited her daughter Pushpa Devi in Jaipur. The claim of the defendant-petitioner was that no Will deed dated 13.8.1991 was ever executed in favour of the plaintiff-respondent and the said Will is a forged document and for cancellation of the same he had instituted Suit No. 1263 of 1999 Gurbhan Singh vs. Ashutosh Mishra, which is still pending. It was further asserted that the name has been incorrectly got mutated, which is only for the purpose of payment of taxes and does not affect the ownership of the property in question. It was asserted that Ram Dulari executed only one and final Will deed dated 17.11.1991 in his favour according to which he is the owner of the house. It was further submitted that vacancy proceedings were initiated for mala-fide reasons and were rejected vide order dated 4.9.2004. The competent court found that there is no vacancy. In substance it was claimed that the defendant-petitioner is the landlord in possession of the house. Regarding bona-fide need, the same was also disputed on the ground that sufficient accommodation in his possession, being House No. 65/198 Moti Mohal, Kanpur of which the plaintiff-respondent is the owner, is available, wherein he is living. It was further asserted that the family of the plaintiff-respondent includes only his mother, his wife and two daughters. Rest of the persons cannot be treated as member of the family as defined in the Act. It was also asserted that in Schedule 'A' boundaries of the property in dispute have been wrongly shown. The crux of the argument was that the plaintiff-respondent is not the owner of the property in question and on the contrary, the owner of the property in question is the defendant-petitioner herein. 7. It was also asserted that in Schedule 'A' boundaries of the property in dispute have been wrongly shown. The crux of the argument was that the plaintiff-respondent is not the owner of the property in question and on the contrary, the owner of the property in question is the defendant-petitioner herein. 7. Replication was filed pointing out that the suit for cancellation of the Will deed dated 13.8.1991 being Suit No. 1263 of 1999, Gurbhan Singh vs. Ashutosh Mishra was dismissed for want of prosecution vide order dated 2.8.2004. It was also pointed out that when the plaintiff-respondent filed application for mutation of his name, the same was objected to and was contested by the defendant-petitioner herein and it is only after considering the evidence of both the sides Sahayak Nigam Adhikari vide order dated 15.12.1999 rejected the objections raised by the defendant-petitioner herein and name of the plaintiff-respondent was mutated. After completion of all the formalities name of the plaintiff-respondent was also recorded in the Kanpur Development Authority. It was pointed out that the name of Babu Lal, late father of the defendant-petitioner, was registered as tenant in the records of Nagar Nigam. It was also stated that the plaintiff- respondent has no concerned with the House No. 65/198 Moti Mohal, Kanpur Nagar, wherein he lives with his mother, who is the owner of the aforesaid house to the extent of 1/5 share. On the basis of reliable information it was further asserted that the defendant-petitioner has also acquired one house in Manyavar Kashiram Awas Yojana, which has been let out to one Kishori Lal @ Rs. 1750/- per month. In documentary evidence the plaintiff-respondent filed certified copies of the assessment year 1958-63, 1963-68, 1968-73, 1973-78 and 1978-87 and copy of the Will and mutation order was also filed. It is pertinent to note that no documentary evidence whatsoever was filed by the defendant-petitioner before the trial court. 8. Three issues were framed by the trial court. One, relationship of landlord and tenant between the parties, second, bona-fide need and third, comparative hardship. On issue no. 1 after detailed consideration of the evidence on record it was held that there is a relationship of landlord and tenant between the parties. On issue no. 8. Three issues were framed by the trial court. One, relationship of landlord and tenant between the parties, second, bona-fide need and third, comparative hardship. On issue no. 1 after detailed consideration of the evidence on record it was held that there is a relationship of landlord and tenant between the parties. On issue no. 2 regarding bona-fide need it was found that although the boundaries as given in Schedule 'A' of the plaint, have been disputed by the defendant-petitioner, however, he has not filed any evidence whatsoever, not even any affidavit in support of his assertion. It was found that the plaintiff-respondent is living with his mother and needs a separate house. Regarding brother and his wife and brother-in-law and his wife of the plaintiff-respondent it was found that they cannot be treated as members of family. The bona-fide need was found in favour of the plaintiff- respondent. Regarding issue no. 3 it was found that the defendant-petitioner has not made any effort to search out any alternative accommodation. Ultimately, the release application was allowed. At the appellate stage the defendant-petitioner filed large number of documents in support of his case. The plaintiff-respondent also filed Engineer's report and the written statement at the appellate stage. A perusal of the appellate order clearly indicates that after going through the documents placed before the appellate court in detailed no substance was found in the appeal and on all the issues findings were recorded in favour of the plaintiff-respondent and the appeal was dismissed. 9. Learned counsel for the petitioner has submitted that all the issues have been incorrectly decided by both the courts below and the findings so recorded are perverse in nature. He submitted that there is no relationship of landlord and tenant between the parties. His first argument was that there is no relationship of landlord and tenant between the parties and the landlord respondent is not the owner of the property in question. He next submitted that there is no bona-fide need of the plaintiff-respondent and this issue has been incorrectly decided. He challenged that the comparative hardship is also in favour of the defendant- petitioner. It was also submitted that the documents filed by the defendant-petitioner at the appellate stage were not considered by the lower appellate authority and therefore, the judgment suffers from material irregularity and perversity. 10. He challenged that the comparative hardship is also in favour of the defendant- petitioner. It was also submitted that the documents filed by the defendant-petitioner at the appellate stage were not considered by the lower appellate authority and therefore, the judgment suffers from material irregularity and perversity. 10. Elaborating the arguments submission of learned counsel for the petitioner is that after death of Devi Shankar Mishra, Ram Dulari had married with Babu Lal, late father of the petitioner, and Ram Dulari had never executed any Will deed dated 13.8.1991 as claimed by the plaintiff-respondent and for cancellation of which he has filed O.S. No. 1263 of 1999, which was, although, dismissed in the year 2004, however, a recall application has been filed, which is still pending. It was submitted that even if the name of the plaintiff- respondent is mutated in the records of local authorities, it is meaningless for the purpose of ownership and title. It is submitted that infact, Ram Dulari executed only one Will deed dated 17.11.1991 in favour of the defendant-petitioner. He submitted that even the fact that the said Will deed is unregistered makes no difference in law and being the last Will the same will prevail. It was pointed out that a probate case was filed and is still pending. He submitted that once the document filed before the lower appellate court under Order 41 Rule 27 CPC read with Section 34 of the Act and Rule 2 of the Rules framed thereunder were taken on record, the court below was bound to consider the same but the same have been wrongly ignored. It was pointed that for some reasons the probate case and the case filed for cancellation of the registered Will deed dated 13.8.1991 were unfortunately dismissed for want of prosecution but in both the cases restoration is pending. It was also sought to be asserted that the court below has also ignored that one Shiv Ram and another had filed a suit for eviction against the defendant-petitioner claiming themselves as owner by virtue of sale deed allegedly executed by Ram Dulari on 17.4.2007, therefore, there was serious dispute of title and the release application filed on behalf of the plaintiff-respondent was not maintainable. It was also submitted that once the dispute of title was involved, the release application filed under Section 21(1)(a) of the Act was not maintainable. It was also submitted that once the dispute of title was involved, the release application filed under Section 21(1)(a) of the Act was not maintainable. It was also asserted that once the probate case no. Nil/2017/2012 was also pending, which was dismissed in default, but restoration application is pending and a restoration application was also pending in the case regarding Will deed dated 17.11.1991 executed by Ram Dulari in favour of the defendant-petitioner could not have been discarded. It was submitted that there was a complete misreading of evidence by lower appellate court on the issue of payment of rent and the death certificate of Ram Dulari. Learned counsel for the petitioner has drawn attention of this Court to pages 32, 49, 93, 118, 127, 151, 174, 183, 196, 238, 261 and 277 of the paper book. 11. Per contra, learned counsel for the respondent submitted that the documents that have been filed before the lower appellate court were the old documents but the same were not filed before the Prescribed Authority and therefore, if they were taken on record, the same were not liable to be considered. He further submits that in any view of the matter, the lower appellate court has appreciated the documents correctly and no interference is warranted. It was further submitted that in the grounds of appeal it has nowhere been claimed that Ram Dulari ever married to Babu Lal. A new case was carved out during pendency of the appeal. He submitted that the death certificate allegedly issue in Kanpur regarding death of Ram Dulari was obtained in the year 2016. He further pointed out that this case of re-marriage of Babu Lal with Ram Dulari was never taken before the trial court and only Will executed by Ram Dulari as wife of Devi Shankar Mishra was set up before the trial court and as such the falsity of the case of the defendant-petitioner writ large on the face of record. He further pointed out that in the criminal misc. bail application no. 24267 of 2015 filed before this Court by the defendant-petitioner herein he had admitted that he is the tenant of the property in question. He further pointed out that in the criminal misc. bail application no. 24267 of 2015 filed before this Court by the defendant-petitioner herein he had admitted that he is the tenant of the property in question. It was pointed out that the court below has also noticed that the bail was granted to the petitioner on 9.7.2015 on the ground that when he is a tenant in the property, no prima facie case for fabricating and preparing forged document has been made out. Submission is that even in the year 2015 the petitioner himself has claimed that he is the tenant in the property in question. It was further pointed out that all the documents that have been placed before the lower appellate court all the relevant documents on the question of the ownership on the property in question was considered by the lower appellate court and concurrent findings of facts have been recorded. Submissions, therefore, is that (1) there is no substance in the ground taken before the lower appellate court that Babu Lal was ever married to Ram Dulari and there is only one ground that Will executed by Ram Dulari W/o Devi Shankar Mishra was set up by the defendant-petitioner, (2) the alleged Will dated 17.11.1991 is an unregistered Will and registered Will dated 13.8.1991 executed in favour of plaintiff-respondent by Ram Dulari was challenged by filing O.S. No. 1263 of 1999, which was dismissed in the year 2004 and the restoration was filed in the year 2012 after a gap of 8 years just to create a ground and the statement made before the trial court that the suit is pending was indisputably false, (3) regarding bona-fide need concurrent findings of facts have been recorded by both the courts below and needs no interference as the need of respondent to live separately as the relationship between his mother and wife is strange is a bona-fide need, (4) regarding comparative hardship, admittedly, the defendant-petitioner has never made any effort to search out the alternative property, therefore, once the bona-fide need of the plaintiff-respondent is found to be genuine, the issue of comparative hardship was also correctly decided in favour of the plaintiff-respondent. Learned counsel for the respondent has also drawn attention to the documents already annexed with the present petition and has also drawn attention to the findings recorded by the courts below. 12. Learned counsel for the respondent has also drawn attention to the documents already annexed with the present petition and has also drawn attention to the findings recorded by the courts below. 12. I have considered the rival submissions and have perused the record. 13. On perusal of record I find that the defendant-petitioner has filed no documentary evidence before the trial court and the large number of documents filed by him under Order 41 Rule 27 CPC, which were taken on record by the lower appellate court. It may be noticed that the ownership of Ram Dulari over the premises in question is not in dispute. It is also not in dispute that the ownership is being claimed by the plaintiff-respondent on the basis of registered Will deed dated 13.8.1991 executed by Ram Dulari W/o Devi Shankar Mishra in favour of the plaintiff-respondent. She died almost after 8 years after execution of registered Will deed and name of the plaintiff-respondent was recorded in Kanpur Nagar Nigam as well as in Kanpur Development Authority. The mutation proceedings were contested by the defendant-petitioner and his objections were rejected and that order has become final. In documentary evidence the plaintiff-respondent has filed five years assessment from the year 1958 till 1987, wherein father of the defendant-petitioner herein namely Babu Lal was shown as tenant. The boundaries which were sought to be disputed is given in Schedule 'A' in the plaint though sought to be disputed, however, no evidence to the contrary was given. The lower appellate court had discussed in detail. The dispute regarding possession of defendant-petitioner herein on possession of House No. 128/B/13A as an owner in possession and as to whether it is a separate or not and has recorded concurrent findings that both the house are not separate and there was no division and the numbers given are of the same house. Contradictory evidence was given by the defendant-petitioner was also noticed by the lower appellate court. The suit filed by the defendant-petitioner challenging the registered Will deed in favour of the plaintiff- respondent was dismissed in default in the year 2004 itself. The probate case filed by the defendant-petitioner was also dismissed in default. The receipts regarding payment of taxes by the plaintiff-respondent in Kanpur Nagar Nigam were also taken into consideration. The suit filed by the defendant-petitioner challenging the registered Will deed in favour of the plaintiff- respondent was dismissed in default in the year 2004 itself. The probate case filed by the defendant-petitioner was also dismissed in default. The receipts regarding payment of taxes by the plaintiff-respondent in Kanpur Nagar Nigam were also taken into consideration. Name of late father of defendant-petitioner was also recorded as tenant only throughout in the assessment years of the Nagar Nigam was also taken note of. The issue regarding alleged marriage of Ram Dulari with Babu Lal and was living together as husband and wife in House No. 128/B/13 is concerned, the same was specifically dealt with and there was no substantial evidence to indicate that after death of Devi Shankar Mishra, Ram Dulari married with Babu Lal. The document filed by the defendant- petitioner to support such allegations were never proved and therefore, in absence of cogent reasons this contention was rejected. Apart from that the issue regarding execution of the alleged Will deed dated 17.11.1991 by Ram Dulari in favour of the petitioner it was found that even in the alleged unregistered Will dated 17.11.1991 Ram Dulari has claimed that she is wife of late Devi Shankar Mishra and at present living in B-493 Motipura Yojana, Near Balaji Dehat, Jaipur, Rajasthan and therefore, name of Babu Lal was not shown as husband. Insofar as death certificate submitted by the petitioner it was found that the death certificate had allegedly issued on 26.6.2016, wherein date of death of Ram Dulari was shown as 18.1.1999, wherein husband's name is shown as Babu Lal and place of death as shown is the premises in question, whereas death certificate filed by the plaintiff-respondent indicated that the same was issued on application dated 19.5.1998 and was issued on 21.5.1998 and date of death 14.5.1998 and Devi Shankar Mishra has been shown as husband and place of death is Jaipur. It was found that in paragraph 24 of the objection paper no. 17 has stated that after death of Ram Dulari on 14.5.1998 he has become owner of the property in question pursuant to the Will executed by her. Thus, the date of death and place of death as alleged by the defendant-petitioner was found to be incorrect. It was found that in paragraph 24 of the objection paper no. 17 has stated that after death of Ram Dulari on 14.5.1998 he has become owner of the property in question pursuant to the Will executed by her. Thus, the date of death and place of death as alleged by the defendant-petitioner was found to be incorrect. In probate case regarding Will dated 17.11.1991 it was found that no order was passed in the probate case and no probate was placed before the court and apart from that the aforesaid was filed against one Pushpa Devi and not against the plaintiff-respondent herein. As such, it was found that the landlord tenant relationship has been established between the parties. On bona-fide need it was found that although cousin brother and his family and brother-in-law and his family are not included in the definition of family, however, landlord is entitled to live separately with his wife and daughters and therefore, the bona-fide need was found to be genuine. On the issue of comparative hardship it was found that there is nothing on record to indicate that the defendant-petitioner has made any effort for searching the alternative property. 14. These are all concurrent findings of fact and are based on documentary evidence on record, which has been properly appreciated by both the courts below. I also find that since large number of documents were filed before the lower appellate court by the defendant-petitioner herein, the same have also been appreciated by the court below properly and extensively and I do not find that they suffer from any perversity. I do not find any good ground whatsoever to interfere in such findings of facts as the law is settled that scope of interference in findings of facts under Article 226 of the Constitution of India is very limited and unless any glaring mistake or perversity is indicated, no interference is warranted by this Court. 15. The argument raised by learned counsel for the petitioner were related to the appreciation of findings of facts and no legal infirmity or jurisdictional error could not be pointed out by learned counsel for the petitioner in the judgments and orders impugned herein. Present petition is devoid of merits and is accordingly dismissed. 16. 15. The argument raised by learned counsel for the petitioner were related to the appreciation of findings of facts and no legal infirmity or jurisdictional error could not be pointed out by learned counsel for the petitioner in the judgments and orders impugned herein. Present petition is devoid of merits and is accordingly dismissed. 16. 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 31.1.2019; (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. 2000/- per month by 07th day of every succeeding month and continue to deposit the same in the Court below till 31.1.2019 or till the date he vacates the premises, whichever is earlier and the landlord is 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 premises is not vacated as per the undertaking given by the petitioner, he shall also be liable for contempt. 17. There shall be no order as to costs.