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2023 DIGILAW 2213 (ALL)

Ram Kishor v. Mukesh Kumar Sahu

2023-09-26

J.J.MUNIR

body2023
JUDGMENT : J.J. Munir, J. This is a tenant's writ petition, arising out of an order of release passed under Section 21(1)(a) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act No. 13 of 1972) by both the Authorities below. 2. The facts giving rise to this petition are these : An application under Section 21(1)(a) of Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act No. 13 of 1972) ('the Act of 1972' for short) was moved by Mukesh Kumar Sahu against Ram Kishor, Ram Narayan Gupta, Brij Kishor alias Vijjan and Ballo, all sons of the late Radhey Shyam Gupta on allegations that Sahu was the owner and landlord of a shop bearing Municipal No. 198, situate at Mohalla Parwan, District Jhansi, where Ram Narayan Gupta and his three brothers, above named, were tenants at a rent of Rs. 16.56/- per month. Sahu said that he had no shop available with him to do business. He earned his livelihood, in the absence of a place of business, by selling mobile phone recharge vouchers for Airtel and Idea telecommunication service providers, moving from one shop to another for the purpose. According to the landlord, he wanted to establish himself in the business of hosiery, and to do that, he bona fide needed the shop above detailed in the tenancy occupation of the petitioner, Ram Kishor and his three brothers, respondent Nos. 2, 3 and 4 to this petition. Ram Kishor, the sole petitioner and respondent Nos. 2, 3 and 4, his brothers shall hereinafter be referred to as the 'tenants' unless the context necessitates a different or individual reference. 3. It was also pleaded by the landlord that the former owner and landlord of Shop No. 198 aforesaid was his mother Smt. Poonabai, who had passed away, and after her demise, he had become the owner and landlord thereof. This had happened in the manner that the landlord and his brothers had done a family settlement to divide the property left behind by their parents amongst themselves, where Shop No. 198 aforesaid ('demised shop' for short) had fallen to his share. Apart from the demised shop, the landlord had, for his residence, a house bearing Premises Nos. This had happened in the manner that the landlord and his brothers had done a family settlement to divide the property left behind by their parents amongst themselves, where Shop No. 198 aforesaid ('demised shop' for short) had fallen to his share. Apart from the demised shop, the landlord had, for his residence, a house bearing Premises Nos. 95 and 108, which, in fact, is one house, but the Nagar Nigam, Jhansi had assigned two premises numbers to it. The tenants had no need for the demised shop. They had with them, on the Kotwali Road, Jhansi, a non-residential building, besides two vacant shops. One of these shops is occupied by one Ram Nath, who does the business of selling incense sticks (agarbatti) which he manufactures in his house. The tenants can easily rent another shop, or buy one. The landlord is without any source of livelihood. He has no permanent source of income. It is a very unstable occupation that he undertakes by selling mobile phone recharge vouchers, moving from shop to shop, to make his ends meet. The landlord wants to do business of hosiery so that he may have a stable source of livelihood. His need is bona fide and pressing. The landlord also said in his application that he is ready to pay compensation to the tenants as required by the law. It is also averred that the tenants would not face any hardship, if evicted. 4. Amongst the tenants, who are arrayed as opposite parties to the application for release, Ram Kishor filed objections, bearing Paper No. 28A1. He asserted that abutting the demised shop, there were Shop Nos. 199 and 200, besides other shops, of which the landlord's mother, Smt. Poonabai was the owner. She had instituted a suit, being S.C.C. Suit No. 59 of 1992 for eviction of the tenants, which was dismissed and a revision carried against the decree to the High Court too was dismissed. It is also pleaded that the landlord's mother, Smt. Poonabai had moved an application for release under Section 21(1)(a) of the Act of 1972 againts the tenants during her lifetime, being Application No. 69 of 1992, which came to be dismissed on 6.12.1999. In the said application for release, the landlord's mother, Smt. Poonabai had not pleaded bona fide need for her sons. In the said application for release, the landlord's mother, Smt. Poonabai had not pleaded bona fide need for her sons. She assailed the judgment of the Prescribed Authorityvide Rent Control Appeal No. 2 of 2000, which too was dismissed. 5. It was also pleaded that in order to forcibly evict the tenants by use of muscle power, the landlord caused a part of the demised shop to be demolished and thereafter, the landlord, together with Om Prakash, Rajendra Kumar and Smt. Bindu instituted Original Suit No. 276 of 2004 for a permanent injunction, that was dismissed on 3.4.2008. The tenants, with the permission of the Court, got the demolished shop repaired. The tenants do trade in incense sticks (agarbatti) utilising the demised shop in order to secure their livelihood and feed their family. No partition by way of family settlement between the landlord and his brothers had taken place in the year 2004 or at any other time. The landlord and all his brothers are co-owners of the demised shop. The landlord and his brothers own a number of shops, houses and agricultural lands. They carry on business of money lending. Shop No. 199, that adjoins the demised shop, and Shop No. 200, which is next to Shop No. 199 are both in the landlord's occupation. The landlord has let out Shop No. 199 and a part of Shop No. 200 temporarily for the purpose of a beer shop to one Sanjeev Kumar Rai in the month of April, 2010 and the remaining portion of Shop No. 200 is still in the landlord's occupation. The landlord's father, Bhagwandas and his wife had purchased Shop Nos. 16 and 18, situate in Mohalla Chaudharyana Bada Bazar, wherein they were earlier tenants. Both these shops were purchased in the name of their son, Om Prakash and grandson, Amit Kumar. It is the tenant's case that the landlord and his brother, Om Prakash jointly carry on sale and repair of bicycles and hosiery in the shops aforesaid, which has been reconstructed into a grand three-storied shop. Apart from it, the landlord, in a part of Shop No. 200, carries on the wholesale of hosiery on a grand scale, besides dealing in mobile phones. The landlord and his brother carry on wholesale business in hosiery in Building No. 23, Najhai Bazar, Jhansi, where they have eight shops. Apart from it, the landlord, in a part of Shop No. 200, carries on the wholesale of hosiery on a grand scale, besides dealing in mobile phones. The landlord and his brother carry on wholesale business in hosiery in Building No. 23, Najhai Bazar, Jhansi, where they have eight shops. Apart from these premises, the landlord and his brothers have recently purchased a building from one Rajendra Kumar, located opposite House Nos. 95 and 108, Mohalla Jharkharia, Jhansi. In the said premises, four shops are located opposite Shop No. 23, Najhai Bazar. According to the tenants, the landlord and his brothers have purchased three shops 3-4 years ago, housed in Sai Complex No. 89, Chaudharyana, Jhansi, wherein too, they carry on the business of sale of hosiery. The landlord and his brothers are also owners of House No. 32, Ganesh Mandia, Jhansi, which too has one shop. It has been purchased a few years ago. The shop and the house bearing number 32 are in the landlord's possession. Apart from these, according to the tenants, the landlord owns a shop near Ramleela Manch, situate in Bada Bazar, Jhansi, a part of Ramlala market. Again, House Nos. 95 and 106, situate in Mohalla Jharkharia, Jhansi is said to be a grand building, where two shops are in the landlord's possession. 6. It is made out that the landlord has no bona fide need for the demised shop. It is also pleaded that Ram Narayan, one of the tenants, is litigating with the other tenants, that is to say, his brothers. He has a residential house at Kotwali Road, Jhansi, which is his personal property. The said house has no shop. House No. 6, Gudri, Jhansi is a residential premises of Ram Kishor, Brij Kishor alias Vijjan and Ballo, amongst the tenants, which does not have a shop, nor it is used for the purpose of business of incense sticks (agarbatti). The landlord is not at all unemployed. 7. On the other hand, the tenants have no other shop except the demised shop. It is also pleaded that the tenants attempted to secure another shop on rent, but could not succeed in finding one. In the event the tenants were evicted, their business would close down, leading them to face insurmountable difficulty. It was urged that the release application be rejected. 8. It is also pleaded that the tenants attempted to secure another shop on rent, but could not succeed in finding one. In the event the tenants were evicted, their business would close down, leading them to face insurmountable difficulty. It was urged that the release application be rejected. 8. It is recorded for a fact by the Authorities below that amongst the tenants, except for Ram Kishor, the other three did not appear in Court or file objections to the application for release. Thus, the contest has been confined to the landlord and, amongst the tenants, Ram Kishor. 9. It must also be recorded here that after losing the eviction matter in the Court of first instance, it was only Ram Kishor, amongst the four tenants, who appealed under Section 22 of the Act of 1972 and failing there, has instituted this writ petition. None of the other tenants have objected to the release order passed by the Prescribed Authority. 10. In support of his case, the landlord filed his own affidavit, bearing Paper No. 27A2, a counter-affidavit, Paper No. 77A, together with three annexures and photographs, an inquiry report, some kind of a conveyance, rather rustically described by both the Judges in the Courts below as ^^fcy cSukes dh i~jfr ,usDpj 4 yxk;r 13** . This Court must pause here and say that we do not approve of this kind of a wayfarer's description of evidence by a trained Judge in his judgment. 11. The next piece of evidence relied upon by the landlord is an affidavit of the landlord bearing Paper No. 28A2, together with Annexures 1 and 2, that includes a photograph, an affidavit of Shivram, Paper No. 29A2, an affidavit of the landlord, Paper No. 30A2, an affidavit of Ashok Kumar Nigam, Paper No. 31A2. Amongst the documents filed is a sale-deed, a house tax receipt, a rent receipt and photographs bearing Paper Nos. 33C to 53C. 12. The contesting tenant, in support of his case, has filed his own affidavit, Paper No. 57A2 alongwith Annexure-1, a photocopy of some sale-deed, an affidavit of Ashok Kumar Gupta Paper No. 59A1, an affidavit of Dinesh Chaurasia, Paper No. 60A1, an affidavit of Ashok Ahirwar, Paper No. 61A1, besides some other evidence. 13. 33C to 53C. 12. The contesting tenant, in support of his case, has filed his own affidavit, Paper No. 57A2 alongwith Annexure-1, a photocopy of some sale-deed, an affidavit of Ashok Kumar Gupta Paper No. 59A1, an affidavit of Dinesh Chaurasia, Paper No. 60A1, an affidavit of Ashok Ahirwar, Paper No. 61A1, besides some other evidence. 13. As part of his documentary evidence, the tenant has filed a certified copy of the judgment and decree passed in Original Suit No. 283 of 1995, bearing Paper No. 63C1, a copy of the application giving rise to Case No. 60 of 1999, Paper No. 64C, a certified copy of the order, Paper No. 65C, a certified copy of the plaint giving rise to Original Suit No. 276 of 2004, Paper No. 66C, a certified copy of the judgment passed in the aforesaid suit, Paper No. 67C, a certified copy of the judgment passed in Suit No. 69 of 1992, Paper No. 68C, an electricity bill, Paper No. 69C, photographs, Paper No. 70C, a copy of an application, Paper No. 71C, a copy of the newspaper Paper No. 72C, a copy of photographs, Paper Nos. 73C to 76C, a certified copy of the sale-deed, Paper Nos. 84C and 85C, and, a copy of an application and an affidavit, Paper Nos. 94C and 95C, respectively. 14. The Prescribed Authority heard the matter, going into the issues of bona fide need and comparative hardship. Both the issues were decided in favour of the landlord and against the tenants. Accordingly, the Prescribed Authority, vide judgment and order dated 19.7.2012 passed in P.A. Case No. 35 of 2010, allowed the application and ordered the tenants' eviction. The landlord was ordered to pay, by way of compensation to the tenants, rent for the period of two years within fifteen days of the date of judgment. The tenants were directed to vacate the demised shop within a month of receipt of compensation from the landlord. It was further ordered that in the event of failure by the tenants to deliver possession within the time allowed, it would be open to the landlord to recover possession. Both parties were directed to bear their own costs. 15. Amongst the tenants, Ram Kishor alone appealed the release order to the District Judge, Jhansi/Appellate Authority under Section 22 of the Act of 1972. Both parties were directed to bear their own costs. 15. Amongst the tenants, Ram Kishor alone appealed the release order to the District Judge, Jhansi/Appellate Authority under Section 22 of the Act of 1972. The appeal was assigned for hearing to the Additional District Judge, Court No. 2, Jhansi. 16. Pending the appeal, the landlord, Mukesh Kumar Sahu passed away and his widow, Smt. Suman Sahu applied for substitution in his stead. The application for substitution was allowed and she was impleaded as respondent No. 1/1 to the appeal. The appeal was, therefore, heard, with Suman Sahu representing the landlord's interest. The learned Additional District Judge/Appellate Authority, vide judgment and order dated 15.11.2014 passed in Rent Control Appeal No. 20 of 2012, dismissed the said appeal and affirmed the release order. 17. Aggrieved, this writ petition has been instituted by Ram Kishor alone, amongst all the tenants. Ram Kishor shall, however, continue to be referred to as the 'tenants' (in plural). 18. Heard Mr. P.K. Jain, learned Senior Advocate assisted by Mr. K.P. Tiwari, learned Counsel for the tenants and Ms. Rama Goel Bansal, learned Counsel for the landlord-respondent No. 1/1, Smt. Suman Sahu. She shall be referred to hereinafter as the 'landlord' in similar fashion as her deceased husband, unless the context necessitates an individual reference. 19. It is argued by Mr. P.K. Jain, learned Senior Advocate appearing for the tenants that the release application was filed under Section 21(1)(a) of the Act of 1972 on ground of bona fide need of the original landlord Mukesh Kumar Sahu. It is urged that Sahu had pleaded bona fide need of his family, besides his own. The submission is that this kind of a need, even if established until time when the Prescribed Authority decided, vanished during appeal, when Sahu passed away. The submission is that since release was not sought for the bona fide need of a member of his family or his own together with his family, the bona fide need would not survive Sahu. His widow, who has been substituted in his stead, has no right to seek relief, prosecuting the application for release that was brought by her husband for his own need, and no one else's. Reliance in this connection has been placed by Mr. Jain upon the judgment of the Supreme Court in Sheshambal (dead) through L.Rs. His widow, who has been substituted in his stead, has no right to seek relief, prosecuting the application for release that was brought by her husband for his own need, and no one else's. Reliance in this connection has been placed by Mr. Jain upon the judgment of the Supreme Court in Sheshambal (dead) through L.Rs. v. Chellur Corporation, Chellur Building and others, (2010) 3 SCC 470 : AIR 2010 SC 1521 . The learned Senior Advocate has drawn the Court's attention to the following remarks of their Lordships in Sheshambal (supra) : 12. It is not in dispute that in the eviction petition the owners had pleaded their own requirement for the premises to be occupied by them for residential as well as commercial purposes. The eviction petition was totally silent about the requirements of any member of the family of the petitioner owners leave alone any member of their family who was dependent upon them. That being so the parties went to trial before the Rent Controller on the basis of the case pleaded in the petition and limited to the requirement of the owners for their personal occupation. 13. Neither before the Rent Controller nor before the Appellate Authority was it argued that the requirement in question was not only the requirement of the petitioner owners of the premises but also the requirement of any other member of their family whether dependent upon them or otherwise. Not only that, even in the petition filed before this Court the requirement pleaded was that for the deceased widowed owner of the demised premises and not of any member of her family. 14. Superadded to all this is the fact that the legal representatives who now claim to be the family members of the deceased are all married daughters of the deceased couple each one settled in their respective matrimonial homes in different cities and at different places. That none of them was dependent upon the deceased petitioner is also a fact undisputed before us. Even otherwise in the social milieu to which we are accustomed, daughters happily married have their own families and commitments, financial and otherwise. That none of them was dependent upon the deceased petitioner is also a fact undisputed before us. Even otherwise in the social milieu to which we are accustomed, daughters happily married have their own families and commitments, financial and otherwise. Such being the position we find it difficult to see how the legal representatives of the deceased appellant can be allowed to set up a case which was never set up before the Courts below so as to bring forth a requirement that was never pleaded at any stage of the proceedings. Allowing the legal heirs to do so would amount to permitting them to introduce a case which is totally different from the one set up before the Rent Controller, the Appellate Authority or even the High Court. 15. The position may indeed have been differentiated if in the original petition the petitioner owners had pleaded their own requirement and the requirement of any member of their family dependent upon them. In such a case the demise of the original petitioners or any one of them may have made little difference for the person for whose benefit and bona fide requirement the eviction was sought could pursue the case to prove and satisfy any such requirement. 20. Mr. Jain has next placed reliance upon a decision of a learned Single Judge of this Court in Smt. Parwati Devi and others v. Late Prabhu Dayal and others, 2011:AHC:171295. He has drawn the Court's attention to the following observations of the learned Judge in Smt. Parwati Devi (supra) : Law so declared by the Supreme Court of India in paragraph-9 of the said judgement would take care of sub-section (7) of Section 21 of U.P. Act No. 13 of 1972. Therefore, sub-Section (7) has to be read in consonance with what has been recorded in paragraph-9 of the said judgement of the Supreme Court of India quoted herein above. Meaning thereby that if need set up by the landlord was personal as well as for his family members, it is only then after his death, dependant can prosecute an application even after the death of the landlord. The facts of the present case are more or less identical to the Judgement of the Supreme Court of India in the case of Seshambal (Supra). The facts of the present case are more or less identical to the Judgement of the Supreme Court of India in the case of Seshambal (Supra). This Court has no hesitation to record that the order permitting the amendment as well as granting the release application on the need pleaded by the legal heirs for the first time at the appellate stage after death of original landlord cannot be legally sustained. 21. It is argued on the foot of the aforesaid decisions that the bona fide need of the landlord would, therefore, not enure beyond his death and to the benefit of his widow, who has no right to prosecute the application, based on his bona fide for himself alone. It is next submitted that the Authorities below have committed a manifest error of law in believing the case of the landlord based on an oral family partition, where the demised shop is said to be assigned to his share. It is urged that the partition propounded by the landlord is a got up one, in collusion with his brothers, to evict the tenants. It has no basis to it. Reference is made to the plaint of Suit No. 276 of 2004, a copy of which is annexed as Annexure 1 to the supplementary-affidavit dated 26.11.2014 to say that in paragraph No. 1 of the plaint there, all four brothers have admitted themselves to be the landlords. It is also pointed out that in the supplementary-affidavit dated 26.11.2014, the judgment of the Additional District Judge, Court No. 2, Jhansi, that he passed in Misc. Civil Appeal No. 59 of 2005, arising out of a temporary injunction matter in Original Suit No. 276 of 2004, has been annexed. The said appeal was filed by the tenants against the landlord and his two brothers. The said judgment has been relied upon to say that the landlord has accepted his brothers to be all co-owners and landlords of the demised shop. It is urged that there is absolutely no basis to the story of oral partition set up in the present proceedings. It is also pointed out that the oral partition is something that cannot be believed, because no date thereof has been mentioned. It is urged that there is absolutely no basis to the story of oral partition set up in the present proceedings. It is also pointed out that the oral partition is something that cannot be believed, because no date thereof has been mentioned. It is lastly urged that a series of litigation pending between parties, initially instituted by the landlord's mother, Smt. Poonabai, both by suits for ejectment and release on ground of bona fide need, show that it is the endeavour of the landlord, since the time of his predecessors-in-title, to evict the tenant at any cost. The dismissal of the suit and the release application brought by his mother show that there is no basis to the landlord's claim for release on ground of bona fide need. 22. There is also an objection to the interim order of this Court enhancing rent to Rs. 4,000/- per month as a condition for enjoyment of the order of stay of eviction. The findings of bona fide need and comparative hardship have also been assailed as perverse. It is argued that details of accommodation available with the landlord in ample measure has been pointed out in different parts of the city, all of which the Authorities below have ignored from consideration. 23. Ms. Rama Goel Bansal, learned Counsel for the landlord, on the other hand, has argued that the Authorities below have considered the issues of bona fide need and comparative hardship, analysing all evidence offered by parties, and recorded findings of fact, that cannot be assailed before this Court in exercise of our writ jurisdiction. It is next submitted that the landlord, who has no stable source of business and was critically ill, died by cancer pending appeal, whereafter, his widow has got herself substituted. Ms. Bansal has placed reliance upon the provision of Section 21(7) of the Act of 1972 to say that it confers right on the legal representatives of the landlord to prosecute a pending application for release on the basis of their own need, in substitution of the deceased's. 24. It is argued that the decision of the Supreme Court in Sheshambal is distinguishable on facts of the present case and does not apply here. Reliance has been placed on behalf of the landlord by Ms. Bansal upon the authority of the Supreme Court in Kamleshwar Prasad v. Pradumanju Agarwal (dead) by L.Rs. It is argued that the decision of the Supreme Court in Sheshambal is distinguishable on facts of the present case and does not apply here. Reliance has been placed on behalf of the landlord by Ms. Bansal upon the authority of the Supreme Court in Kamleshwar Prasad v. Pradumanju Agarwal (dead) by L.Rs. and others, (1997) 4 SCC 413 , as also that in Kedar Nath Agrawal (Dead) and another v. Dhanraji Devi (Dead) by Lrs. and another, (2004) 8 SCC 76 . Further reliance has been placed by the learned Counsel for the landlord upon the guidance of the Supreme Court in Baldev Krishan v. Satya Narain, (2013) 14 SCC 179 , as well as in D. Sasi Kumar v. Soundarajan, (2019) 9 SCC 282 . 25. It is next submitted that so far as the case of the tenants is concerned, that the partition is a sham, they have no right to question how the landlord and his brothers have partitioned whatever they have inherited amongst themselves. Any objection in this regard could come from one of the co-shares of the landlord; not by the tenants who do not deny their character as tenants in the demised premises, of which the original landlord was Sahu's mother. It is also urged that all the family members of the landlord have supported the case of oral partition and the demised shop falling to the landlord's share. There is hardly any element of collusion. So far as bona fide need and comparative hardship are concerned, it is urged that the findings thereof have been recorded after a threadbare examination of evidence on record by the two Authorities of fact below, which does not merit interference. 26. This Court has considered the submissions advanced by learned Counsel appearing on behalf of both the parties. The principal ground of attack to the order of release is based on the principle that the application for release being one that was filed by Mukesh Kumar Sahu for his personal need cannot be pursued by his widow, seeking substitution in his stead. More particularly, the submission is based on the foot of the reasoning that the release sought being based on Sahu's personal need, and not that of himself alongwith members of the family, the widow is not entitled to prosecute the application for release after seeking substitution. More particularly, the submission is based on the foot of the reasoning that the release sought being based on Sahu's personal need, and not that of himself alongwith members of the family, the widow is not entitled to prosecute the application for release after seeking substitution. In support of this contention, reliance has been placed upon the decision of the Supreme Court in Sheshambal. The submission does not commend itself to this Court. The reasons for thinking that Sheshambal would not help the tenants in any manner are more than one. Sheshambal was a decision where that landlord sought release of the demised shop under the Kerala Buildings (Lease and Rent Control) Act, 1965 ('Kerala Buildings Act' for short) on ground of his bona fide need, not mentioning any other member of his family, for whose need or occupation, the premises were required. What in this context is of particular relevance are the remarks of their Lordships of the Supreme Court in Sheshambal. In paragraph No. 28 of the report, it is said : 28. As noticed earlier, the requirement pleaded in the eviction petition by the original petitioners was their own personal requirement and not the requirement of the members of their family whether dependent or otherwise. Indeed if the deceased landlords had any dependent member of the family we may have even in the absence of a pleading assumed that the requirement pleaded extended also to the dependent member of their family. That unfortunately, for the appellants is neither the case set up nor the position on facts. The deceased couple did not have any dependent member of the family for whose benefit they could have sought eviction on the ground that she required the premises for personal occupation. 27. In Sheshambal, the landlords were K. Sachidananda Iyer and his wife the late Smt. A. Sheshambal Sachidanand Iyer, who had let out the demised premises to the tenants there. They had a daughter and a son-in-law, who were running a nursing home in another city. They had shifted to that city. There was no dependent member of the family after Sheshambal's demise. The holding in Sheshambal shows that the position would have been different, even in the absence of pleading, if there were a dependent member of the Iyers, but the couple did not have any dependent family member, for whose benefit, eviction could be sought. 28. There was no dependent member of the family after Sheshambal's demise. The holding in Sheshambal shows that the position would have been different, even in the absence of pleading, if there were a dependent member of the Iyers, but the couple did not have any dependent family member, for whose benefit, eviction could be sought. 28. The other distinguishing feature in Sheshambal is that, there it was the legal representatives of the deceased who had sought substitution on the basis of a Will. The occasion to seek this substitution arose for the first time before the Supreme Court, because Sachidananda Iyer passed away while the revision was pending in the High Court. But, Smt. A. Sheshambal Iyer, as the sole unsuccessful revision-petitioner before the High Court, filed an appeal before the Supreme Court and died pending appeal before their Lordships. It is then that the three daughters of the couple, who were legatees under the Will, applied. Two of the daughters were living in India, one in Coimbatore and the other in Bihar, whereas the third daughter was settled in America. It was in this context that in paragraph No. 13 of the report in Sheshambal, it was observed by their Lordships : 13. Neither before the Rent Controller nor before the Appellate Authority was it argued that the requirement in question was not only the requirement of the petitioner owners of the premises but also the requirement of any other member of their family whether dependent upon them or otherwise. Not only that, even in the petition filed before this Court the requirement pleaded was that for the deceased widowed owner of the demised premises and not of any member of her family. 29. In the circumstances, there was no occasion to infer on a finding returned by the Authorities of fact that the release was sought not only by the landlords for their personal need, but also for one or the other member of their family, whether dependent or otherwise. The principle in Sheshambal, therefore, has to be understood in the background of facts in which it was laid down, the most important being that there was no dependent family member apparently so, or proved to be so, left behind by the landlords, who had petitioned for release. 30. The principle in Sheshambal, therefore, has to be understood in the background of facts in which it was laid down, the most important being that there was no dependent family member apparently so, or proved to be so, left behind by the landlords, who had petitioned for release. 30. The third and the most important distinguishing feature is that the principle in Sheshambal arises in the background of the provisions of Section 11(3) of the Kerala Buildings Act, which read : 11. (3) A landlord may apply to the Rent Control Court for an order directing the tenant to put the landlord in possession of the building if he bona fide needs the building for his own occupation or for the occupation by any member of his family dependent on him: Provided that the Rent Control Court shall not give any such direction if the landlord has another building of his own in his possession in the same city, town or village except where the Rent Control Court is satisfied that for special reasons, in any particular case it will be just and proper to do so: Provided further that the Rent Control Court shall not give any direction to a tenant to put the landlord in possession, if such tenant is depending for his livelihood mainly on the income derived from any trade or business carried on in such building and there is no other suitable building available in the locality for such person to carry on such trade or business: Provided further that no landlord whose right to recover possession arises under an instrument of transfer inter vivos shall be entitled to apply to be put in possession until the expiry of one year from the date of the instrument: Provided further that if a landlord after obtaining an order to be put in possession transfers his rights in respect of the building to another person, the transferee shall not be entitled to be put in possession unless he proves that he bona fide needs the building for his own occupation or for the occupation by any member of his family dependent on him. 31. The provisions of Section 11(3) are similar to the provisions of Section 21(1)(a) of the Act of 1972. 31. The provisions of Section 11(3) are similar to the provisions of Section 21(1)(a) of the Act of 1972. A perusal of the provisions of Section 11 of the said Act as a whole, and 11(3) in particular, when compared with those of Section 21 of the Act of 1972, reveals that in the Kerala Statute, there is no provision pari materia to sub-section (7) of Section 21 of the Act of 1972. Sub-section (7) of Section 21 of the Act is a special provision designed to confer a right upon the legal representatives of a landlord, who dies pending an application under Clause (a) of sub-section (1) of Section 21 of the Act of 1972, entitling them to prosecute the application further on the basis of their need in substitution of the deceased's need. The right conferred by sub-section (7) of Section 21(1)(a) of Act of 1972 is a special right arising under the Act of 1972 in favour of the legal representatives of the landlord, who has instituted against his tenant an application for release under Section 21(1)(a). It permits the legal representatives not only to prosecute the application further, based on the needs set-up by the landlord, but also on the basis of the legal representatives' own needs. The Statute, therefore, devises a special right in favour of the legal representatives of a deceased landlord, who was seeking release of a tenanted accommodation from his tenant, while alive. There is no similar provision under Section 11(3) of the Kerala Statute, on the basis of which, the decision in Sheshambal turns. The decision of this Court in Smt. Parwati Devi, while opining that the principle in Sheshambal would take care of sub-Section (7) of Section 21 of the Act of 1972, fails to notice, ex facie, that there is no similar provision in the Kerala Statute conferring a special right on the legal representatives, as done by the Act of 1972. The point though involved directly in Smt. Parwati Devi was not at all present to the Court's mind, as the difference in the two statutes was not at all brought to his Lordship's notice. The decision in Smt. Parwati Devi must, therefore, on this point, be held to pass sub silentio. The point though involved directly in Smt. Parwati Devi was not at all present to the Court's mind, as the difference in the two statutes was not at all brought to his Lordship's notice. The decision in Smt. Parwati Devi must, therefore, on this point, be held to pass sub silentio. The other submission urged on behalf of the tenants that the partition is a sham, in the absence its date being disclosed or convincing evidence offered, is also not acceptable. 32. Mr. Jain, learned Senior Advocate for the tenants, in order to show that the tenants have a right to prove that the partition was not bona fide and a sham transaction to evict them, has placed reliance upon the decision of the Supreme Court in Sk. Sattar Sk. Mohd. Choudhari v. Gundappa Amabadas Bukate, (1996) 6 SCC 373 . The learned Senior Advocate has drawn the Court's attention to the following observations in Sk. Sattar (supra) : 37. In view of the above discussion, it is obvious that the law with regard to the splitting 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 co-lessors from partitioning the tenanted accommodation among themselves. 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 co-lessors 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 the tenants except on specified grounds set out in the relevant statute. 33. While it is true that the law does appear to give the right to a tenant to show that the partition was not bona fide and a sham to evict him, circumventing the protective regime of rent control laws, there is no right with the tenant to say that the premises in his occupation, of which there are a number of landlords jointly owning, cannot be partitioned amongst themselves, for that right belongs to the landlords. It is also open to the landlords to permit anyone on their behalf to evict the tenant. This is one part of the matter. Quite apart, if the landlord comes up with a case that partition had been amicably effected and a particular property assigned to him by an oral partition, it is open to the tenant to show, by convincing evidence, that it is sham. The Authorities below have returned a finding that no such evidence has been placed on record by the tenants to show that after the year 2004, the demised shop is not held by the landlord in his individual right post the oral family settlement/partition. The Authorities below have returned a finding that no such evidence has been placed on record by the tenants to show that after the year 2004, the demised shop is not held by the landlord in his individual right post the oral family settlement/partition. There is no reason for this Court to interfere with the aforesaid finding, based on a reasonable view of the evidence adopted by the two Authorities below. 34. Again, so far as the issues of bona fide need and comparative hardship are concerned, both the Authorities below have examined the landlord's case and that of the tenants with reference to the evidence on record. All that the tenants have mentioned as alternative accommodation available to the landlord, where he can carry on business, has been meticulously examinated by the Authorities, including the Appellate Authority, to find that the suggested accommodations are not at all owned or held by the landlord. It has been remarked that in the sale-deeds relating to the various properties said to be owned by the landlord, his name does not figure in the title deeds or the house tax assessment records relating to those properties. It has also been observed that the tenants could have produced sale-deeds, house tax assessment records or other record of rights or tax papers to show that the landlord was in occupation of the premises claimed by the tenants, to be utilised by the landlord for his business, but they have not produced any such documents. In this connection, the finding of the Appellate Authority, that is most pertinent on the question of bona fide need, reads : 35. It is also to be remarked that after Sahu's death, his wife, who has become a widow at a young age, wishes to carry on the occupation of hosiery, that her husband wished to establish. There is no reason why for the purpose, the shop ought not to be released in favour of the present landlord, Sahu's widow, enabling her to establish her business and carry it on to earn her livelihood. Rather, it is very unreasonable to permit the tenants to continue occupying the demised premises, which they do at a paltry rent of Rs. 16.56/- per month since the time of Sahu's parents. The conduct of the tenants is also far from equitable, because they have objected to this Court raising the rent to Rs. Rather, it is very unreasonable to permit the tenants to continue occupying the demised premises, which they do at a paltry rent of Rs. 16.56/- per month since the time of Sahu's parents. The conduct of the tenants is also far from equitable, because they have objected to this Court raising the rent to Rs. 4,000/-, a very modest sum of money in contemporary times, vide order dated 26.11.2014, that has protected them from eviction. 36. So far as the comparative hardship is concerned, both the Authorities below have held it to be in the landlord's favour and against the tenants. Even if a suitable shop searched by the tenants could not be found, and the comparative hardship of the tenants is evenly balanced, the conclusion must be in favour of the landlord. It is only when the comparative hardship outweighs the landlord's hardship that some consideration may be permissible. 37. Looking to the findings on the point by the Authorities below, this Court is not inclined to interfere with the impugned judgments in the exercise of our jurisdiction under Article 226 of the Constitution. 38. In the result, this writ petition fails and shall stand dismissed with costs, which we quantify at Rs. 25,000/-. Costs shall be payable to the landlord. The interim stay order dated 26.11.2014 is hereby vacated. 39. However, since the tenants have been in occupation of the demised shop for the purpose of their business for a considerable period of time, it is provided that they shall have four months' time from the date of this judgment to vacate the shop, subject to the following conditions : (i) That Ram Kishor will regularly deposit current rent with the Prescribed Authority by the seventh day of each calendar month and alongwith the first deposit, arrears of rent, if any, due in terms of the interim order passed by this Court on 26.11.2014 shall also be deposited. (ii) That Ram Kishor will handover vacant possession of the demised shop to the landlord peacefully and without obstruction of any kind either by himself or the other tenants or anyone else, on or before 25.1.2024. (iii) That during the period of four months that Ram Kishor remains in possession, he will not induct a sub-tenant or allow trespassers to occupy the demised shop, which he will maintain in good repair until delivery of possession to the landlord. (iii) That during the period of four months that Ram Kishor remains in possession, he will not induct a sub-tenant or allow trespassers to occupy the demised shop, which he will maintain in good repair until delivery of possession to the landlord. (iv) That an undertaking on affidavit shall be furnished by Ram Kishor before the Prescribed Authority incorporating the above terms within twenty days of date. 40. In the event of failure to furnish an undertaking to the above effect by Ram Kishor, or not abiding by the terms of the undertaking, the release order shall become executable forthwith. 41. The costs directed to be paid hereinabove shall be deposited with the Prescribed Authority by the Ram Kishor within a month. In the event, costs, as above, are not deposited, the same shall be recovered from Ram Kishor as arrears of land revenue by the District Magistrate upon certification in this behalf by the Prescribed Authority. Upon realisation of costs, the District Magistrate shall remit the proceeds to the Prescribed Authority, who shall release the same in the landlord's favour forthwith. 42. The Registrar (Compliance) is directed to communicate this order to the Prescribed Authority, Jhansi through the learned District Judge, Jhansi.