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2022 DIGILAW 1615 (ALL)

Jamuna Ram v. Shanti Devi

2022-09-30

J.J.MUNIR

body2022
JUDGMENT: J.J. Munir, J. This petition under Article 227 of the Constitution is directed against the order dated 25.10.2021 passed by the Additional District Judge, Court No. 14, Kanpur Nagar in Rent Revision No. 36 of 2014, dismissing the Revision and affirming the order of vacancy dated 1.7.2014 and release dated 30.9.2014 passed by the Rent Control and Eviction Officer, Kanpur Nagar (for short, 'the RC & EO') in proceedings under Sections 12/16 of The Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (Uttar Pradesh Act No. 13 of 1972) (for short, 'the Act'). 2. The facts giving rise to this petition, briefly said, are that a typed written statement was presented by Smt. Shanti Devi, widow of the late Vidya Sagar, respondent No. 1 to this petition, before the RC & EO, stating that she is the co-owner of House No. 74/137(1), Dhankutti, Kanpur Nagar (for short, 'the demised premises'). The demised premises, on the ground floor, has a single room with an abutting platform (Chabutra), demised to one Ganga Ram. Since Ganga Ramm has built his own house, bearing House No. 2/292, Sector H, Jankipuram, Lucknow, he has shifted to Lucknow way back in the year 1998 alongwith his family. The demised premises are in possession of Ganga Ram's brother, Jamuna Ram. In view of the provisions of Section 12(3) of the Act, the demised premises would be deemed vacant. The said written statement submitted to the RC & EO was supported by the statements of one Ramesh Chandra Gupta and another Gopal Chandra Mishra. The RC & EO called for a report from the Rent Control Inspector. 3. The Rent Control Inspector submitted a report to the effect that the demised premises was in the tenancy of the late Mahaveer Prasad. Ganga Ram and Jamuna Ram are his sons. Both of them are, therefore, tenants. The demised premises are situate on a plot of land, which has a room and an adjoining Chabutra. It was also reported by the Rent Control Inspector that upon both the wives of Vidya Sagar and their sons saying that Rakesh Kumar Gupta was the owner, he tendered rent to Rakesh Kumar Gupta. Since Rakesh Kumar Gupta refused to accept the tendered rent, Jamuna Ram was depositing the same in the Court of the Civil Judge (Jr. Div.), Kanpur Nagar under Section 30(1) of the Act. Since Rakesh Kumar Gupta refused to accept the tendered rent, Jamuna Ram was depositing the same in the Court of the Civil Judge (Jr. Div.), Kanpur Nagar under Section 30(1) of the Act. The Rent Control Inspector further reported that Jamuna Ram's stand was affirmed by a certain Kamla Devi and Tara Devi. The RC & EO did not accept Jamuna Ram's case that the demised premises were let out to his father and upon his demise, both his sons Ganga Ram and himself, had inherited the tenancy. 4. It was remarked by the RC & EO that Jamuna Ram had not produced any evidence to show that the then landlord, Rameshwar Prasad Verma had issued any rent receipt in favour of his father, Mahaveer Prasad. No allotment order issued by the competent Authority in favour of Mahaveer Prasad was produced either. In the opinion of the RC & EO, the absence of evidence in support of Jamuna Ram's pleaded case of an inherited tenancy from his father, the premises were liable to be declared vacant. Accordingly, vide order dated 1.7.2014, vacancy was declared. This order was followed by an order of release passed by the RC & EO on 30.9.2014. 5. Both these orders were challenged by Jamuna Ram, the present petitioner and his brother Ganga Ram together, by means of Rent Revision No. 36 of 2014, instituted before the Court of the District Judge, Kanpur Nagar. The said revision was heard and dismissed by the learned Additional District Judge, Court No. 14, Kanpur Nagar vide judgment and order dated 25.4.2017. 6. Dissatisfied with the concurrent orders made by the RC & EO and the learned Additional District Judge in revision, Jamuna Ram alone preferred a petition under Article 227 of the Constitution before this Court being Matter under Article 227 No. 3725 of 2017. The said petition was allowed by an order dated 11.9.2019 with a remand to the Court of Revision on the short ground that there were various evidence produced by the tenant-petitioner mentioned in the order of the RC & EO dated 1.7.2014, but neither the RC & EO nor the Judge in Revision had considered these. It was, therefore, held to be a case of non-consideration of evidence. 7. It was, therefore, held to be a case of non-consideration of evidence. 7. Post remand, the matter went back to the learned Additional District Judge, Court No. 14, Kanpur Nagar, who after hearing parties and perusing the record, has dismissed the Revision and once again affirmed the orders of vacancy and release dated 1.7.2014 and 30.9.2014, respectively. 8. Aggrieved, this petition under Article 227 of the Constitution has been instituted by Jamuna Ram (for short, 'the tenant'). 9. Heard Mr. Zafar M. Naiyar, Senior Advocate assisted by Mr. Deepak Pandey, learned Counsel for the tenant-petitioner and Mr. Atul Dayal, Senior Advocate assisted by Mr. Vinay Kumar Gupta, learned Counsel for the landlord-respondents. 10. It is submitted by Mr. Zafar M. Naiyar, learned Senior Advocate that the ration card issued on 22.11.2015, Annexure 13 to the petition, the Voter Card issued on 19.12.2011, part of Annexure 12 to the petition, School Certificates for the years prior and subsequent to 2005, Rent Receipts issued by the landlady/landlord, part of Annexure 12 to the petition, School Education Certificate starting from 1976 to 1983, Water Tax Payment Receipts and Electricity Payment Receipts, alongwith the statements of the tenant-petitioner recorded by the Rent Control Inspector during his inspection for the determination of vacancy, clearly indicate that the petitioner's father was a tenant in the demised premises and he died leaving behind two sons, to wit, Ganga Ram, the elder son and the tenant, the younger son. The elder brother, Ganga Ram, who is an employee of State Bank of India, holds a transferable post. He has been transferred to Lucknow and stays at his place of posting. The tenant is the other joint tenant alongwith Ganga Ram and is entitled to live in the premises in his own right. It is urged that the Court below has acknowledged the fact that these documents have been placed on record, but has not considered all these pieces of documentary evidence, crucial to the issue, resulting in miscarriage of justice. 11. It is argued that after the death of Mahaveer Prasad, the tenant, his younger son, stayed in the demised premises and paid rent through his elder brother, Ganga Ram. Upon refusal to receive rent by the landlord, it was deposited under Section 30 of the Act. 11. It is argued that after the death of Mahaveer Prasad, the tenant, his younger son, stayed in the demised premises and paid rent through his elder brother, Ganga Ram. Upon refusal to receive rent by the landlord, it was deposited under Section 30 of the Act. It is also argued by the learned Senior Advocate that the fact of shifting of one of the joint tenants to any other district does not create vacancy. Even if it be accepted that Ganga Ram had moved away, the tenant's right, as a joint tenant would not be annihilated. No vacancy, therefore, can be said to arise. It is emphasized that the case that after Mahaveer Prasad's demise, his elder son Ganga Ram became the tenant, is misconceived, inasmuch as on the death of Mahaveer Prasad, the tenancy devolved upon both of his sons, including the tenant. It is argued emphatically that the earlier orders of this Court passed in Matters under Article 227 No. 3725 of 2017, have been observed in breach by the Revisional Court, who has decided, yet again, ignoring relevant and material evidence from consideration. According to the learned Senior Advocate appearing for the tenant, non-consideration of material evidence by the Judge in the Court of Revision, vitiates the order impugned. 12. Mr. Atul Dayal, learned Senior Advocate appearing on behalf of the respondent-landlords, has refuted the submissions advanced on behalf of the tenant and argued that assuming that the tenant's father, the late Mahaveer Prasad was the original tenant, the tenant would have to prove that he was residing in the demised premises at the time of his father's death in view of the provisions of Section 3(a)(1) of the Act. It is argued that there is not a solitary piece of evidence to show that the petitioner was residing in the demised premises at the time his father passed away. It is pointed out that the sale-deed relating to the demised premises dated 21.6.1986, which mentions the name of the tenants, mentions Ganga Ram, but not the tenant. It is further argued that on a more pragmatic note, once it has come on record that Ganga Ram was residing in the demised premises till 1998, it is difficult to believe that the single room accommodation could have housed the two brothers and their families. 13. It is further argued that on a more pragmatic note, once it has come on record that Ganga Ram was residing in the demised premises till 1998, it is difficult to believe that the single room accommodation could have housed the two brothers and their families. 13. It is next submitted on behalf of the respondent-landlord that assuming that the tenant was a joint tenant with Ganga Ram, though evidence to the contrary is overwhelming, even then in the case of one of the two tenants acquiring another accommodation, a deemed vacancy would occur under Section 12(3) of the Act. In support of the above contention, reliance has been placed on the decision in Sarla Devi v. Pushpa Agnihotri, 2008 (2) ARC 725. 14. This Court has considered the rival submissions advanced on behalf of both parties and perused the orders impugned as well as the records annexed. 15. About the High School Certificate and the Scholar Transfer Certificates that the tenant has relied upon, the Revisional Court has remarked that mention of the demised premises as the tenant's address there is of little consequence, because these documents are not documents, showing either allotment in the tenant's favour or his tenancy rights. These documents are based on information given to the School. This Court is of opinion that the Scholar Transfer Certificate relates to the period 1976 to 1983 and would show that while a student in the School, the tenant was residing with his father, Mahaveer Prasad, about whom there is documentary evidence that he was the recorded tenant in the demised premises. There are some other documents, such as a Ration Card dated 22.11.2005, Voter ID Card issued by the Election Commission of India in the year 1995, some water tax receipts issued by the Kanpur Nagar Nigam in the tenant's name for the year 2018, besides a caste certificate of the year 1978. The old documents, as already said, would show that the tenant did reside at some point of time with his father, when a young student. So far as the later documents, such as the Ration Card and even the Voter ID Card or the Water Tax Receipts are concerned, these documents can very well be believed to be issued on the given address, because the tenant's father was a tenant in the demised premises. 16. So far as the later documents, such as the Ration Card and even the Voter ID Card or the Water Tax Receipts are concerned, these documents can very well be believed to be issued on the given address, because the tenant's father was a tenant in the demised premises. 16. The question is whether the petitioner upon his father's demise, inherited the tenancy alongwith his brother as a joint tenant? The provisions of Section 3(a) of the Act read: ''3. Definitions.-In this Act, unless the context otherwise requires- (a) ''tenant'', in relation to a building, means a person by whom its rent is payable, and on the tenant's death- (1) in the case of a residential building, such only of his heirs as normally resided with him in the building at the time of his death; (2) in the case of a non-residential building, his heirs; 17. It would be seen that in the case of a residential building, not all heirs of the deceased tenant are entitled to inherit the tenancy. No doubt, the petitioner is an heir of the deceased tenant, Mahaveer Prasad, being his son, like his elder brother, Ganga Ram, but as remarked by the Revisional Court, there is no direct documentary evidence, such as a rent receipt or a municipal record of assessment to indicate that the tenant was ever recorded as such. To the contrary, Ganga Ram's name finds mention in the sale-deed dated 21.6.1986 as the tenant in the demised premises, but not that of the tenant. In none of the municipal assessment records, the name of Jamuna Ram finds place. No doubt, in the three quinquennial house tax assessment relating to the demised premises for the year ending 1948, the years 1948 to 1953 and the years 1968 to 1973, the name of Mahaveer Prasad alone is recorded as the tenant. It appears that Ganga Ram's name is also not there in the Municipal Record, but does find mention in the sale-deed dated 21.6.1986, as already said, which is one regarding transfer of title relating to the demised premises. It appears that Ganga Ram's name is also not there in the Municipal Record, but does find mention in the sale-deed dated 21.6.1986, as already said, which is one regarding transfer of title relating to the demised premises. The rent receipts, that have been issued either by the former owner and landlord or the transferee landlord, the name of the tenant shown is Mahaveer Prasad, but not the tenant's. It is true that in the absence of succession to the tenancy being recorded in the Municipal Records or a rent receipt being there, the tenant could still have proven that he had inherited the tenancy, as he says, alongwith his brother, Ganga Ram. But, to do that, he would have to show that he normally resided with the last recorded tenant, Mahaveer Prasad at the time of his death. Conspicuously, the tenant has not disclosed anywhere, nor has it otherwise come on record, when Mahaveer Prasad died. The date of death becomes material for the tenant, because he would have to establish his contemporaneous ordinary residence in the demised premises at the time his father passed away in order to succeed to a residential tenancy under Section 3(a)(1) of the Act. There is absolutely no evidence about the tenant's ordinary residence with his father at the time of his father's demise. 18. There are two classes of documents filed by the tenant. One relates to the period of time when he was a student-rather a school going one. Decidedly, at that time, he would have stayed with his father. But, those do not show that he was ordinarily residing with his father when he passed away. There is no presumption in the contemporaneous world that a tenant would be living in his residential premises with all his heirs, including all his sons. There has to be evidence about it. In certain situations, it can be readily established. In others, it might require a onerous standard of proof. Here, the standard would be more onerous, because the demised premises are a one room accommodation. To establish, therefore, that the tenant lived with his father in the one room accommodation, when he passed away, alongwith his brother, is a matter to be established by evidence. There is no such evidence on record. Here, the standard would be more onerous, because the demised premises are a one room accommodation. To establish, therefore, that the tenant lived with his father in the one room accommodation, when he passed away, alongwith his brother, is a matter to be established by evidence. There is no such evidence on record. As already remarked, the first step for the tenant to establish the fact was to plead and establish the date of his father's death, which is not there. The other class of documents, by which the tenant has tried to collaterally establish his residence with his father are contemporaneous documents about payment of water tax, electricity bills, ration card, all of which could be issued on the tenant's representations to the Authorities concerned. These do not show that the tenant was residing with his father when the latter passed away. 19. There is one more aspect of the matter and that is that many of these documents were sought to be brought on record before the Revisional Court through an application under Order XLI Rule 27 CPC. Amongst these documents, was the caste certificate, scholar registration, transfer certificates and a rent receipt, said to be issued in the year 1984. Some of these have been commented upon by this Court earlier in this judgment. The application to bring on record the additional evidence was rejected by the Revisional Court vide order dated 3.1.2017, but some of these documents were considered by the Revisional Court despite rejection of the said application, and, therefore, this Court has also expressed opinion with regard to them. 20. This Court also notices that alongwith the counter-affidavit, the respondents have annexed a rent receipt, also issued in the name of Ganga Ram for the period 1.8.1987 to 13.11.1987, but there is nothing on record to show that it was on record before the Revisional Court. This Court, therefore, does not wish to comment any further about the said document. There is a very startling averment in Paragraph No. 12 of the counter-affidavit, which says that a rent receipt dated 15.12.2012 issued in the tenant's name and annexed at Page No. 89 of the paper book is a forged and fabricated document. It was never placed on record before the Courts below and, therefore, not considered in any of the orders impugned. It was never placed on record before the Courts below and, therefore, not considered in any of the orders impugned. A perusal of the said receipt at Page No. 89 does show that it purports to be issued in the tenant's name by the landlord, Rakesh Kumar Gupta for the period 1.7.2012 to 30.9.2012. The rate of rent mentioned there is Rs. 20/- and the total sum paid is Rs. 60/-. None of the Courts below mention this document, which would have turned tables, if it were there on record before those Courts. 21. In Paragraph No. 4 of the rejoinder-affidavit, where together with many other paragraphs, Paragraph No. 12 of the counter-affidavit has been responded to, there is no explanation about this discordant document, which the Courts below have not mentioned. Apparently, the receipt at Page No. 89 of the paper-book relied upon by the tenant is a document of questionable character. It should not have been placed on record before this Court by the tenant. This Court disapproves the tenant's conduct in doing so. 22. In consequence of all that has been said, this Court does not find any good ground to interfere with the orders impugned. 23. This petition fails and is dismissed with costs. 24. The interim order dated 24.2.2022 passed by this Court is hereby vacated.