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2020 DIGILAW 884 (ALL)

Suneet Kumar v. Krishna Kumar Agarwal

2020-05-26

SARAL SRIVASTAVA

body2020
JUDGMENT : 1. Heard Sri Divakar Rai Sharma, learned counsel for the petitioner and Sri Pankaj Agarwal, learned counsel for the respondent. 2. The petitioner-tenant through the present petition has assailed the judgment and order dated 02.11.2018 passed by the Prescribed Authority/Judge Small Causes Court, Aligarh in UPUB Case No.33 of 2012 whereby application of respondent-landlord under Section 21(1)(a) of the U.P. Act No.13 of 1972 (hereinafter referred to as 'Act, 1972') for release of a godown has been allowed, and judgment and order dated 25.10.2019 passed by Additional District Judge, Court No.8, Aligarh dismissing the UPUB Miscellaneous Appeal No.10 of 2018 preferred by the petitioner against the judgment and order dated 2.11.2018. 3. The respondent-landlord (hereinafter referred as 'respondent') has filed release application under Section 21 (1)(a) of the Act, 1972 against the petitioner-tenant (hereinafter referred as 'petitioner') registered as UPUB Case No.33 of 2012 for release of a godown which exists over an area of 72 square yards in the property bearing municipal No.7/3, Patthar Bazar, Shahar Koil, Aligarh. The case of the respondent is that property bearing municipal No.7/3, Patthar Bazar, Shahar Koil, Aligarh (hereinafter referred as 'property') was purchased by the respondent and his three brothers by sale deed dated 25.06.1994 from one Upendra Kumar. A godown in an area of 72 square yards exists over the aforesaid property. It is stated that respondent and his brother Gopal Prasad Agarwal in January 1995 decided to rent out the aforesaid godown to the petitioner on rent @ Rs.1,000/-per month. The petitioner became tenant of the aforesaid godown since January 1995 @ Rs.1,000/-per month. The petitioner had paid the rent @ Rs.1,000/-to Gopal Prasad Agarwal till January 1996, thereafter, no rent was paid which led to the institution of a suit for eviction and arrears of rent by Gopal Prasad Agarwal against the petitioner. 4. It is further stated that the family settlement had entered into between the respondent, his brother Gopal Prasad Agarwal and two other brothers namely Ganga Prasad Agarwal and Atish Kumar (since deceased) on 01.09.2011 in which godown came in the share of the respondent. The respondent suffered a paralytic attack on 04.09.2011 due to which he became unemployed. The respondent has no source of income and he needs money for the education of his eldest son Shivam Agarwal. The respondent suffered a paralytic attack on 04.09.2011 due to which he became unemployed. The respondent has no source of income and he needs money for the education of his eldest son Shivam Agarwal. It is further stated that the financial condition of the family of the respondent is in distress. His eldest son has experience of the business of hardware and plywood and the godown is needed for the establishment of business of his son. It is also averred that the petitioner has other shops in his possession, and he would not face hardship in shifting his business in those shop. In the aforesaid backdrop, respondent has prayed for the release of the godown. 5. The petitioner filed written statement contending inter alia that as per notice dated 12.09.2012 of the respondent, the godown had come in the share of Gopal Prasad Agarwal in a family settlement. Hence, Gopal Prasad Agarwal is the owner of the godown. The respondent has not filed any document to show his title over the godown. It is further pleaded that Gopal Prasad Agarwal had instituted Suit No.39 of 2009 against the petitioner in respect of the godown for eviction and arrears of rent in which respondent had filed an application for impleadment based on family settlement dated 01.09.2011 which was dismissed on the ground that family settlement is not registered. It is also pleaded that father of the petitioner Ganeshi Lal Prem Dayal was the tenant of the godown for the last 72 years and was doing business in the name and style of 'Shri Ganeshi Lal Prem Dayal'. The petitioner denied that respondent is the owner of the godown, therefore, release application by the respondent is not maintainable. Besides above, petitioner also denied the fact that the need of the respondent is bonafide and comparative hardship also lays in favour of the respondent. 6. On the basis of the aforesaid pleadings, the trial court framed as many as three issues. Issue no.1 was as to whether there was relationship of landlord and tenant between respondent and petitioner. Issue no.2 was in respect of bonafide need of respondent and issue no.3 in respect of comparative hardship. 7. The trial court in deciding the issue no.1 noticed that respondent along with his three brothers had purchased the property by sale deed dated 25.06.1994, therefore, the respondent was the co-owner of the godown. Issue no.2 was in respect of bonafide need of respondent and issue no.3 in respect of comparative hardship. 7. The trial court in deciding the issue no.1 noticed that respondent along with his three brothers had purchased the property by sale deed dated 25.06.1994, therefore, the respondent was the co-owner of the godown. The trial court further noticed the family settlement dated 01.09.2011 and also the joint affidavit, paper no.30Ga, filed by Gopal Prasad Agarwal, Amit Agarwal acknowledging the fact that property was jointly purchased by Krishna Kumar Agarwal (respondent) with his brothers namely, Atish Kumar Agarwal and Ganga Prasad Agarwal and in family settlement dated 01.09.2011 godown fell in the share of the respondent-Krishna Kumar Agarwal. They also averred in the affidavit that respondent-Krishna Kumar Agarwal is the exclusive owner and landlord of the godown. 8. The trial court also noticed another affidavit of Bharat Kumar, who also endorsed the fact that family settlement had been entered between the family members of the respondent on 01.09.2011. The trial court further considered the evidence led by the petitioner and also the written statement filed by father of the petitioner in SCC Suit No.39 of 2009 wherein father of the petitioner had admitted the respondent as the owner of the godown. The trial court based on the aforesaid evidence and material on the record returned a finding that the respondent is the owner of the godown and there was relationship of landlord and tenant between respondent and petitioner. 9. On the issue of bonafide need and comparative hardship, trial court after appreciating the material and shreds of evidence on record held the need of the respondent is pressing and bonafide, and comparative hardship lay in favour of the respondent. 10. The petitioner feeling aggrieved by the order of the trial court preferred an appeal under Section 22 of Act, 1972 registered as Appeal No.10 of 2018. The appellate court did not find any illegality in the order of the trial court, and accordingly, it dismissed the appeal. 11. Learned counsel for the petitioner has assailed the finding of the courts below only on the issue no.1 relating to the relationship of landlord and tenant between respondent and petitioner. The appellate court did not find any illegality in the order of the trial court, and accordingly, it dismissed the appeal. 11. Learned counsel for the petitioner has assailed the finding of the courts below only on the issue no.1 relating to the relationship of landlord and tenant between respondent and petitioner. He submits that it is evident from the notice dated 12.09.2012 sent by the respondent to petitioner that godown had fallen in the share of Gopal Prasad Agarwal in the family settlement arrived at between the brothers of the respondent before the death of their mother, therefore, the subsequent family settlement is collusive and a sham transaction to oust the petitioner from the possession of the godown. Thus, he submits that the tenant can challenge a collusive family settlement. In support of the said submission, he has relied upon the case of Raj Vardhan Khandoori (Sri.) Vs. Additional District Judge 2003 (2) ARC 575 and S.K. Sattar Sk. Mohd. Choudhari Vs. Gundappa Amabadas Bukate AIR 1997 SC 998 . 12. His further submission is that a family settlement unless registered as per Section 17 of the Registration Act, 1908 can not be read in evidence. Accordingly, he submits that the family settlement, which was made part of the decree of Original Suit No.32 of 2017 (Gopal Prasad Agarwal Vs. Smt. Munni Devi and Others), cannot be read in evidence unless registered under Section 17 of the Registration Act, 1908. In support of this submission, he placed reliance upon the following judgments:- (i). Mangal Prasad Vs. Vth Additional District Judge, Basti 1992 AIR (All) 235; (ii). Sita Ram Bhama Vs. Ramvatar Bhama AIR 2018 SC 3057 ; (iii). Bhoop Singh Vs. Ram Singh Major and Others AIR 1996 SC 196 ; (iv). Bankey Bihari Vs. Surya Narain alias Munno AIR 1999 (All) 167 . 13. Thus, based on above submission, it is urged that as the respondent is not the owner of the godown, therefore, there was no relationship of landlord and tenant between respondent and petitioner, and as such, the release application by the respondent was not maintainable. 14. Bankey Bihari Vs. Surya Narain alias Munno AIR 1999 (All) 167 . 13. Thus, based on above submission, it is urged that as the respondent is not the owner of the godown, therefore, there was no relationship of landlord and tenant between respondent and petitioner, and as such, the release application by the respondent was not maintainable. 14. Refuting the aforesaid submission, learned counsel for the respondent has submitted that both the courts below have placed reliance upon the written statement of the father of the petitioner in SCC Suit No.39 of 2009 wherein father of the petitioner had admitted the fact that the respondent is the owner of the godown. He further submits that respondent was arrayed as defendant no.3 in Suit No.414 of 2002 (Firm Shri Ganeshi Lal Prem Dayal Vs. Ganga Prasad & Others) instituted by petitioners firm, and, it is manifest from paragraph no.3 and 4 of the plaint of the said suit that father of the petitioner had accepted the respondent as the owner of the property. His further contention is that the respondent was impleaded as defendant no.4 in Misc. Case No.50 of 2001 filed by the Firm Ganeshi Lal Prem Dayal in which the fact of ownership of respondent in respect of the aforesaid property was admitted by the firm. He has further placed reliance on the joint affidavit of Gopal Prasad Agarwal and Amit Agarwal wherein they admitted respondent as the owner of the godown and stated that they have no claim over it. Thus, he submits that the record of various suits contested between the firm of petitioner and respondent and joint affidavit of Gopal Prasad Agarwal and Amit Agarwal unambiguously establishes that the respondent is the owner of the godown. 15. He further submits that petitioner is the tenant and has no locus to challenge the family settlement dated 01.09.2011. Accordingly, he submits that the contention of counsel for the petitioner that family settlement dated 01.09.2011 is not admissible in evidence and could not have been relied upon by the court below unless registered as per section 17 of Registration Act is without substance. He further urges that the finding of the court below that the respondent is the owner of the godown and there was relationship of landlord and tenant between respondent and petitioner is correct and does not call for any interference by this Court. He further urges that the finding of the court below that the respondent is the owner of the godown and there was relationship of landlord and tenant between respondent and petitioner is correct and does not call for any interference by this Court. In support of his aforesaid submissions, he has placed reliance upon the following judgments:- (i). Om Prakash & Another Vs. Mishri Lal (Dead) Represented by his Lr. Savitri Devi 2017 AIR (SC) 1597; (ii). Achal Kumar Chaddha Vs. Santosh Kumar Kesharwani 2008 (9) ADJ 282 ;, (iii). Sajal Kumar Jauhari Vs. District Judge, Ballia and 9 Others 2016 (2) ARC 46 . 16. I have considered the rival submissions of the parties and perused the record. 17. The court below while returning the finding on the issue of relationship of landlord and tenant has placed reliance upon the various documentary evidence viz written statement of the father of petitioner in Original Suit No.39 of 2009, the plaint of Original Suit No.414 of 2002 (Firm Shri Ganeshi Lal Prem Dayal Vs. Ganga Prasad & Others), the record of Miscellaneous Case No.50 of 2001 filed by Firm Ganeshi Lal Prem Dayal for the deposit of rent. Besides the above, the court below also considered the joint affidavit of Gopal Prasad Agarwal and Amit Agarwal, paper no.30Ga, wherein they had acknowledged the family settlement dated 01.09.2011 amongst the family members in which godown fell in the share of respondent-Krishna Kumar Agarwal, and the respondent is the landlord and owner of the godown and they have no concern with the godown. The court below elaborately considered the above evidence and other documentary evidence in recording the finding that respondent is the owner of the godown and there exist relationship of landlord and tenant between the respondent and petitioner. 18. Thus, it is evident from shreds of evidence on record that property on which godown exist was jointly purchased by the respondent and his three brothers. The respondent became the exclusive owner of the godown on the basis of family settlement, and no member of respondent's family has claim over the godown is manifest from the joint affidavit of Gopal Prasad Agarwal and Amit Agarwal. Hence, the respondent is the exclusive owner of the godown. 19. The respondent became the exclusive owner of the godown on the basis of family settlement, and no member of respondent's family has claim over the godown is manifest from the joint affidavit of Gopal Prasad Agarwal and Amit Agarwal. Hence, the respondent is the exclusive owner of the godown. 19. Now the issue which arises for consideration in view of the submission of petitioner is whether a tenant can challenge the family settlement arrived at between the members of the family of the landlord. 20. The counsel for the petitioner has relied upon paragraph 12 of the judgment of Uttarakhand High Court in the case of Raj Vardhan Khandoori (Sri.) (supra) and paragraph 37 of the judgment of Apex Court in the case of S.K. Sattar Sk. Mohd. Choudhari (Supra) in support of his contention that the tenant can challenge the family settlement if it is collusive and has been arrived at to frustrate the defence of the petitioner. 21. Paragraph 12 of the judgment of Uttarakhand High Court in the case of Raj Vardhan Khandoori (Sri.) (supra) is reproduced hereunder: “12. It has further been held in the case of Sharvan Kumar Mittal v. XVIIIth A.D.J. Meerut and others 2001 (1) ARC 456 , as under: The mere fact that a family settlement had taken place will not raise a presumption of its being collusive. Parties are free to settle their affairs of mutual agreement through family settlement. If such a settlement is a device to frustrate malafide the defence of the tenant then certainly the tenant should have lead evidence on the point and passed the plea and got it adjudicated in appeal. It will be open to the tenant to raise the objection regarding family settlement being collusive; while the appeal itself is being adjudicated. The Court below in appeal allowed amendment application. The main appeal is still pending. I find no manifest error apparent on the face of the record in view of the decision of the Supreme Court reported in MANU/SC/0016/1969: AIR 1969 SC 1267 .” 22. Paragraph 37 of the judgment of Apex Court in the case of S.K. Sattar Sk. Mohd. Choudhari (Supra) is also reproduced hereunder: “37. In view of the above discussion, it is obvious that the law with regard to the spliting of tenancy is not what the High Court has set out in the impugned judgment. Paragraph 37 of the judgment of Apex Court in the case of S.K. Sattar Sk. Mohd. Choudhari (Supra) is also reproduced hereunder: “37. In view of the above discussion, it is obvious that the law with regard to the spliting of tenancy is not what the High Court has set out in the impugned judgment. As pointed out earlier, a co-sharer cannot initiate action for eviction of the tenant from the portion of the tenanted accommodation nor can he sue for his part of the rent. The tenancy cannot be split up either in estate or in rent or any other obligation by unilateral act of one of the co-owners. If, however, all the co-owners or the co-lessors agree among themselves and split by partition the demised property by metes and bounds and come to have definite, positive and identifiable shares in that property, they become separate individual owners of each severed portion and can deal with that portion as also the tenant thereof as individual owner/lessor. The right of joint lessors contemplated by Section 109 comes to be possessed by each of them separately and independently. There is no right in the tenant to prevent the joint owners or colessors from partitioning the tenanted accommodation among themselves. Whether the Premises, which is in occupation of a tenant, shall be retained jointly by all the lessors or they would partition it among themselves, is the exclusive right of the lessors to which no objection can be taken by the tenant, particularly where the tenant knew from the very beginning that the property was jointly owned by several persons and that, even if he was being dealt with by only one of them on behalf of the whole body of the lessors, he cannot object to the transfer of any portion of the property in favour of a third person by one of the owners or to the partition of the property. It will, however, be open to the tenant to show that the partition was not bona fide and was a sham transaction to overcome the rigours of Rent Control laws which protected eviction of tenants except on specified grounds set out in the relevant statute." 23. It will, however, be open to the tenant to show that the partition was not bona fide and was a sham transaction to overcome the rigours of Rent Control laws which protected eviction of tenants except on specified grounds set out in the relevant statute." 23. From the reading of the aforesaid two judgments, it is clear that merely a family settlement had taken place, that would not raise a presumption of it being collusive and tenant cannot prevent the family members of the landlord to partition their property. However, there is an exception to the aforesaid proposition that if the family settlement is a device to avoid rent control law or frustrate the defence of tenant available to him in rent control laws, he can raise objection in this regard in pleading and prove it by filing evidence. 24. Now coming to the facts of the present case, the counsel for the petitioner could not demonstrate from the record that it was the case of the petitioner in the written statement that the family settlement was collusive and was a device to avoid rent control laws which give protection to the tenant from eviction except on the ground specified in the relevant statute nor there was any evidence on record which demonstrates that the family settlement was a sham transaction entered with a purpose to overcome the rent control laws. It is worth noticing that the release application by the respondent has been filed under section 21(a) of Act, 1972 on the grounds available to the landlord in the Act,1972 for seeking eviction of the petitioner. Thus, in the present case, family settlement cannot be termed to be a collusive and sham transaction to render petitioner defenceless as the release application has been filed under Rent Control Act i.e. Act,1972. Accordingly, this court finds no merit in the submission of counsel for the petitioner that family settlement is a device to overcome the protection available to the petitioner under rent control laws. 25. In the instant case, the question of maintainability of release application by the respondent can also be looked at from another point of view. From the facts delineated above, it is unambiguously established that the respondent was co-owner of the property over which godown exists. It is settled law that a co-owner can maintain a suit for eviction against a tenant. From the facts delineated above, it is unambiguously established that the respondent was co-owner of the property over which godown exists. It is settled law that a co-owner can maintain a suit for eviction against a tenant. Reference may be had to the case of Om Prakash (supra), wherein the apex court has held that a suit for eviction of a tenant can be maintained by one of the co-owners and tenant has no right to question the maintainability of the suit on the ground that other co-owners were not joined. Paragraphs 32 and 34 of the judgment are being extracted here-in-below:- “32. It is no longer res integra and is settled by this Court in Sri Ram Pasricha vs. Jagannath and Ors., (1976) 4 SCC 184 , Dhannalal vs. Kalawatibai and Ors. (2002) 6 SCC 16 and India Umberalla Manufacturing Co. and Ors. vs. Bhagabandei Agarwalla (dead) by Lrs. Savitri Agarwalla (Smt.) and Ors. (2004) 3 SCC 178 that a suit for eviction of a tenant can be maintained by one of the co-owners and it would be no defence to the tenant to question the maintainability of the suit on the ground that the other co-owners were not joined as parties to the suit. The judicially propounded proposition is that when the property forming the subject matter of eviction proceedings is owned by several co-owners, every co-owner owns every part and every bit of the joint property along with others and thus it cannot be said that he is only a part owner or a fractional owner of the property and that he can alone maintain a suit for eviction of the tenant without joining the other co-owners if such other co-owners do not object. In the contextual facts, not only the compromise decree, as aforementioned, has declared the appellants to be the joint owners of the suit premises, their status as such has not been questioned at any stage by anyone interested in the title thereto. 34. That a tenant during the continuance of the tenancy is debarred on the doctrine of estoppel from denying the title of his landlord through whom he claims tenancy, as is enshrined in Section 116 of the Indian Evidence Act, 1872, is so well-settled a legal postulation that no decision need be cited to further consolidate the same. 34. That a tenant during the continuance of the tenancy is debarred on the doctrine of estoppel from denying the title of his landlord through whom he claims tenancy, as is enshrined in Section 116 of the Indian Evidence Act, 1872, is so well-settled a legal postulation that no decision need be cited to further consolidate the same. This enunciation, amongst others is reiterated by this Court in S. Thangappan vs. P. Padmavathy (1999) 7 SCC 474 and Bhogadi Kannababu and Ors. vs. Vuggina Pydamma and others (2006) 5 SCC 532 . In any view of the matter, the appellants, being the son of Bhola Nath, who at all relevant time, was the landlord vis-à-vis the original defendant and the respondents in terms of Section 3(j) of the Act, their status as landlords for the purpose of eviction under the Act, could not have been questioned so as to non suit them for want of locus.” 26. The judgment of this court in the case of Achal Kumar Chaddha (supra) is also relevant wherein this court dismissed the writ petition of a tenant on the ground that even if the partition is ignored, the landlord being one of the co-owner can file a release application. Paragraph 5 of the judgment is being extracted here-in-below:- “5. In any case, even if partition is ignored, respondent is co-owner and release application may be filed by a co-owner also vide Gopal Das v. A.D.J., 1997 (1) ARC 281 : 1987 All LJ 494 (FB). Moreover, the Supreme Court in AIR 2004 SC 1321 , India Umbrella Manufacturing Co., M/s v. Bhagabandei Agarwalla and AIR 2006 SC 1471 , Mohinder Prasad Jain v. Manohar Lal Jain has held that even one of the landlords can file eviction proceedings against tenant and he need not show the consent of the other landlords. No other brother, sister or father of the respondent ever raised any objection against the partition.” 27. In the case of Sajal Kumar Jauhari (supra), this Court has held that proceedings under Section 21(1)(a) of the Act, 1972 are summary in nature and question of title cannot be decided. Paragraphs 33 and 34 of the judgment are being extracted here-in-below:- “33. To deal with this contention of the learned counsel for the petitioner, it is note-worthy that there is no basis for his submission that the disputed accommodation exists over plot no. Paragraphs 33 and 34 of the judgment are being extracted here-in-below:- “33. To deal with this contention of the learned counsel for the petitioner, it is note-worthy that there is no basis for his submission that the disputed accommodation exists over plot no. 59-A/1 and 50-B and the said property belonged to someone else. The sale deed of the year 1933 cannot be made basis to challenge the title of the applicants/landlord. Moreover, the disputed accommodation came in the share of the applicants by a decree of the Civil Court passed in a partition suit no. 203 of 2001 which was filed by the co-owners. This fact is not disputed by the petitioner. The rent control proceedings are summary proceeding and the question of title cannot be decided therein as it requires appreciation of oral and documentary evidences which is not permissible in a summery proceeding. Prima facie, title to the disputed accommodation can be seen by the Rent Controller only with a view to look as to whether the applicant is landlord of the accommodation, release of which is sought by him. 34. On the landlord-tenant relationship, the written statement filed by Shyam Das, the father of the petitioner in the year 2007 becomes much more relevant. In his written statement, he had denied the landlord-tenant relationship on the ground that the decree of partition obtained by the applicants/landlord was a collusive decree and they are not the owners of the disputed accommodation. The challenge was not on the ground that Gopal Das Mishra or his heirs are owners of the disputed accommodation under tenancy as suggested by the petitioners.” 28. In view of the law propounded by this court and apex court in the above-referred cases, it is crystal clear that the release application by the respondent as a co-owner was maintainable and the tenant cannot raise an objection to the maintainability of release application by the respondent. 29. Coming to another submission of counsel for the petitioner that a family settlement unless registered under section 17 of the Registration Act cannot be read in evidence; the said issue, in the opinion of the court, in the facts of the present case is irrelevant and does not require any consideration for the reason that it is already held that the release application by the respondent, even if the family settlement is ignored, was maintainable. Further, the judgments relied upon by the counsel for the petitioner in support of the aforesaid submission are of no help to petitioner since none of the judgments arises out proceedings under Rent Control Act and has been rendered in different factual circumstances. 30. Therefore, in the light of the above discussion, it is held that there was relationship of landlord and tenant between the respondent and petitioner and the release application by the respondent was maintainable. 31. Accordingly, this Court does not find any illegality in the orders impugned in the writ petition. The writ petition lacks merit and is, accordingly, dismissed with no order as to costs.