Mohan Lal Agrawal And Ors. vs Additional District Judge ...
2011 Latest Caselaw 1356 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

(AFR)(Reserved)
 

 
Court No. - 18 
 
Case :- RENT CONTROL No. - 71 of 2010 
 
Petitioner :- Mohan Lal Agrawal And Ors. 
 
Respondent :- Additional District Judge Sitapur And Ors. 
 
Petitioner Counsel :- Mohd. Aslam Khan 
 
Respondent Counsel :- C.S.C.,Manish K. Jaiswal,Subhash Vidyarthi 
 

 
Hon'ble Anil Kumar,J. 

Heard Sri Mohd. Arif Khan, Senior Advocate assisted by Sri Mohinuddin Khan, learned counsel for petitioners and Sri Subhash Vidyarthi, Advocate appearing on behalf of respondent nos. 3 & 4.

Controversy in present case relates to a house situate in Mohalla Misterganj, Pargana and Tehsil, Biswan, District Sitapur owned by one Ramdin (now deceased), initially under tenancy of late Sumer Chandra Agarwal, father of petitioners thereafter with them on a monthly rent of Rs. 200/-.

Sri Ramdin filed an application under Section 21(1)(a) of U.P. Act no. XIII of 1972 for release of the house under the tenancy of the petitioners.

Petitioners/tenants contested the said application by filing objection on the ground that Ramdin has two sons namely Ram Swaroop and Girdhari and two daughters who are still alive, as such the substitution application moved by respondent nos. 3 & 4 is not maintainable.

It has also been pleaded by the tenants that one of son of Ramdin namely Sri Ram Swaroop filed a Suit for declaration and permanent injunction in respect to the house in question under the tenancy of petitioners seeking a decree for declaration that alleged Will is a fraud document executed after death of Ramdin be declared to be null and void on the ground that no such will ever executed by Ramdin on his own free will and accord in his lifetime and after his death got procured by fraud, accordingly, a Suit registered as Regular Suit No. 487 of 2005, pending in the court of Civil Judge(S.D.), Sitapur.

By order dated 09.01.2007, the Prescribed Authority allowed the release application. Thereafter, petitioners filed a Revision No. 3 of 2007 (Mohan Lal Agarwal and others Vs. Ramdin and others). Revisional authority after hearing the learned counsel for parties by order dated 06.04.2010 dismissed the revision, hence present writ petition filed.

Sri Mohd. Arif Khan, Senior Advocate, learned counsel for petitioners while assailing impugned order submits that now it is settled in law as provided by the Apex Court that on the death of applicant in the original eviction petition, his right to seek eviction on the ground of personal requirement for the demised premises become extinct and no order on the basis of any such requirement may be passed by substituting the assignees under Section 21(7) of the Act as the right to sue survive on the death of the original landlord to the members of the deceased family and not to the assignee.

It is further submitted by learned counsel for petitioners that the respondent nos. 3 & 4 could not be said to be the heirs of Ramdin, deceased, as two sons and two daughters of Ramdin are still alive and for the so called need of the grand-sons, an application made by Ramdin not maintainable and after his death, the respondent nos. 3 & 4 could not be allowed to be substituted and permitted to prosecute application filed by Ramdin and the respondent nos. 1 & 2 have thus erred in law allowing application for substitution, ignoring the provisions of Section 3(g) and 21(7) of the Act.

Sri Mohd. Arif Khan, learned counsel for petitioners further submits that Sri Ramdin, now deceased moved an application for release of the house for so called need of his grand-sons who are not members of his family, as his sons and daughters are still alive and on his death, the respondent nos. 3 & 4, who are grand-sons of the deceased could not be substituted on the basis of alleged Will, whose validity is still subjudice before a competent court of law, so orders passed by courts below vitiated in law.

In addition to above said facts, Sri Mohd. Arif Khan, learned counsel for petitioners further submits that the grand-son/respondent nos. 3 & 4 are not "male lineal descendant" of deceased (Ramdin) in view of the provisions as provided under Section 3(g)(ii), U.P. Act No. XIII of 1972. read with Rule 16(2)(d) of Rules framed under the Act, so order passed by court below is contrary to law, liable to be set aside.

In support of his argument, he relies on the following judgments :-

1.Smt. Dhanwanti Devi Vs. Shri Rama Shankar Prasad and another ARC, 1982, page 747.

2.Mohan Singh Bedi Vs. Phool Chand and others, ARC, 1982, page 421.

3.Smt. Rahiman Vs. District Judge, Barabanki and others, ARC, 1984(2), page 445.

Sri Shubhash Vidyarthi, learned counsel for respondents submits that in view of the definition given under Section 3(g)(ii) of the Act, his clients, respondent nos. 3 & 4 come within the ambit and scope of male lineal descendants and in support of his argument, he relies on the judgment given by this Court in the case of Shiromani Kant @ Mani Kant and others Vs. Additional District Judge, Meerut and others [1999(17) LCD, 500].

On the basis of same, Sri Shubhash Vidyarthi, learned counsel for respondents submits that reliance placed by learned counsel for petitioners on the judgments given by this Court in the case of Rahiman (supra) is not applicable as while considering the provisions of Rules 16(2)(d) in the said case, this Hon'ble Court has not considered the definition of family as given under Section 3(g) of the Act which also include the male lineal descendant, so petitioners cannot derive any benefit from the said judgment.

Sri Shubhash Vidyarthi, learned counsel for respondents also submits that as per provisions as provided under Section 21(7), U.P. Act no. XIII of 1972, the word used 'his legal representatives', is not defined under the U.P. Act no. XIII of 1972 but borrowing the definition of 'legal representative' under Section 2(11) of C.P.C., application for substitution moved on behalf of respondent nos. 3 & 4 is maintainable under law, rightly allowed by the court below and in support of his argument, he placed reliance on the case of Chiranjilal Shrilal Goenka (deceased) through Lrs. Vs. Jasjit Singh and others (1993) 2, SCC, 507.

Sri Shubhash Vidyarthi, learned counsel for respondents further submits that in present case a registered Will executed in favour of respondent nos. 3 & 4 by late Ramdin/original landlord in respect to house in question and as per the provisions as provided under Section 213 read with Section 57 of the Indian Succession Act, there is no need to get a probate in the matter in question as per law as laid down by this Court in the case of Smt. Bimla Gaindhar Vs. Smt. Uma Gaindher and another (2004, All. CJ. 1022).

Moreover, as a matter of fact and record, other legal heirs of deceased, Ramdin neither filed any application for substitution in the instant matter nor challenged the substitution application moved by respondent nos. 3 & 4 in the present case, so keeping in view the said facts, even if the registered Will executed in favour of respondent no. 3 challenged by Sri Ram Swaroop one of the son of deceased, Ramdin before Competent Court of law, the same cannot be legal impediment in the way of respondent nos. 3 & 4 to move substitution application after death of Sri Ramdin, so the same is rightly allowed by the authorities below under the rent control Acts because the Prescribed Authority/Appellate Authority cannot adjudicate and decide the validity of registered document (Will) unless and until the same is not set aside by competent court, so there is neither any infirmity nor illegality on the part of respondent nos. 1 & 2 in passing orders under challenge in the present matter, accordingly, present writ petition filed by petitioners is liable to be dismissed.

In rebuttal, Sri Mohd. Arif Khan, learned counsel for petitioners submits that definition of 'legal representative' given in Section 2(11) C.P.C. cannot borrowed in the present case while deciding the controversy as submitted by learned counsel for respondents in view of the provisions as provided under Section 38 of U.P. Act No. XIII of 1972.

After hearing learned counsel for parties, undisputed facts of present case are that Sri Ramdin, now deceased was original landlord/owner of the house in question, under the tenancy of the father of petitioners, now under their tenancy at the monthly rent of Rs. 200/- and in respect to which a release application (Annexure no. 1 to writ petition) moved inter alia stating the need therein. Thereafter, Sri Ramdin died, as such an application for substitution moved by respondent nos. 3 & 4 on the basis of registered Will, allowed by Prescribed Authority, revision filed, dismissed.

In view of the above factual background, it is necessary to have a look to the pidgree of deceased, Ramdin which is as under:-

 
Ramdin(died on 18.06.2005)
 
=Smt. Narmada Devi
 
     ____________________________I_________________________
 
     I					 I				   I
 
Ram Swaroop			Girdhari Lal			    2 daughters
 
     I					 I                                                 I
 
  5 sons                                                 I                                                 Son
 
	          (Mukesh Kumar)(Dinesh Kumar) (O.P.nos. 3 & 4)
 

 

Further, before deciding the controversy involved in present case, I feel appropriate to have a glance the relevant provisions as provided under Section 21(1)(a) of the U.P. Act No. XIII of 1972 and Rules and C.P.C. may also be looked, the same are as under :-

Section 3(g) :-

3. Definition :- In this Act, unless the context otherwise requires -

(g) "family" in relation to a landlord or tenant of a building, means his or her

(i)spouse,

(ii) male lineal descendants,

(iii)such parents grand-parents and any unmarried or widowed or divorced or judicially separated daughter of a male lineal descendant, as may have been normally residing with him or her, and includes, in relation to a landlord, any female a legal right of residence in that building."

Section 21(1)(a) of U.P. Act no. XIII of 1972.

"21: Proceedings for release of building under occupation of tenant-

(1)The Prescribed Authority may on an application of the landlord in that behalf order the eviction of a tenant form the building under tenancy or any specified part thereof if it is satisfied that any of the following grounds exists , namely-

(a) that the building is bona- fide required either in in its existing from or after demolition and new construction by the landlord for occupation by himself or any member of his family, or any person for whose benefit it is held by him, either for residential purposes or for purposes of any profession, trade, or calling or where the landlord is the trustee of a public charitable trust , for the objects of the trust;"

Section 21(1)(7) of U.P. Act no. XIII of 1972.

"Where during the pendency of an application under Clause (a) of sub-section (1), the landlord dies, his legal representatives shall be entitled to prosecute such application further on the basis of their own need in substitution of the need of the deceased."

Section 34(4) of the Rules:

Powers of various authorities and procedure to be followed by them.

(4)Where any party to any proceeding for the determination of standard rent of or for eviction from a building dies during the pendency of the proceeding, such proceeding may be continued after bringing on the record.

(a) in the case of the landlord or tenant his heirs or legal representatives;

(b) in the case of an unauthorised occupant, and person claiming under him or found in occupation of the building.

Rule 16(2)(d):-

(2)While considering an application for release under Clause (a) of sub section (1) of Section 21 in respect of building let out for purposes of any business the prescribed authority shall also have regard to such facts as the following :

(d) Where a son or unmarried or widowed or divorced or judicially separated daughter or daughter or male lineal descendant of the landlord has, after the building is originally let out, completed his or her technical education and is not employed in Government service, and wants to engage in self-employment, his or her need shall be given due consideration.

Rule 25 (1) :-

Bringing legal representative on record [section 34(4) (1) "Every application for substituting the names of [the heirs or legal representatives, the claimants-occupants] any person who was a party to any proceedings under the Act and died during the pendency of the proceedings shall be preferred within one month from the date of the death of such person."

Now, the first point which is to be decided in the instant case is that whether the respondent nos. 3 & 4 comes within the ambit and scope of word "male lineal descendant" as given under Section 3(g)(ii) of U.P. Act no. XIII of 1972 in respect to family in relation to a landlord of a building.

No doubt, this Court in the case of Smt. Rahiman Vs. District Judge, Barabanki and others, ARC, 1984(2), page 445 by interpreting Rule 16(2) (a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972 held as under:-

"The petitioner had applied for the release of the shop on the ground that their grand-son Taj Mohammad was to be established in business . Since Taj Mohammad does not fall within the category of the persons contemplated by clause (s) of Rule 16 (2) which has been quoted above, the petitioners can not legally contend that their need should be construed liberally. The question whether the petitioners bona fide require the shop in question stands decided conclusively by the finding of fact recorded by the learned District Judge, who had found it as a fact that the shop which was in occupation of Chheda (since deceased) is now in the possession of the petitioners and that the proposed business can be started by Tax Mohamnmad in that shop."

However, thereafter, in the case of Shiromani Kant @ Mani Kant and others Vs. Additional District Judge, Meerut and others [1999(17) LCD, 500], this Court while considering the definition of family under Section 3(g) of the Act has held as under :-

"Learned counsel for the petitioners urged that the release application for the need of grandson cannot be entertained in an application filed by the grandfather under Section 21(1) of the Act. He has placed reliance upon the decision Smt. Rahiman Vs. District Judge, Barabanki and others, 1984(2) LCD, 49, wherein the Court considering the provisions of Rule 16(2)(d) held that this rule is not applicable in respect of grandson, Rule 16(2)(d) reads as under :-

"Where a son or unmarried or widowed or divorced or judicially separated daughter or daughter or male lineal descendant of the landlord has, after the building is originally let out, completed his or her technical education and is not employed in Government service, and wants to engage in self-employment, his or her need shall be given due consideration."

The Court was not considering the definition of family as given under Section 3(g) of the Act which reads as under :-

(g)"family" in relation to a landlord or tenant of a building, means his or her

(i) spouse,

(ii) male lineal descendants,

such parents grand-parents and any unmarried or widowed or divorced or judicially separated daughter of a male lineal descendant, as may have been normally residing with him or her, and includes, in relation to a landlord, any female a legal right of residence in that building."

It includes the male lineal descendants, it is not confined only to the son. The application under Section 21(1)(a) of the Act can be filed by the landlord for occupation by himself or any member or any member of his family."

Accordingly, in the case of Shiromani Kant Vs. Addl. District Judge, Meerut, 1999 (17) LCD, 500, it has been held that grand son falls within the definition of "male lineal descendant" as given under Section 3(g) of the U.P. Act no. XIII of 1972.

In the case of Murlidhar Vs. XI Additional District Judge and others, 1996 (1) ARC 492, it was held that the application can be filed for release on the ground of the need of the grandson as well

Further, this Court in the case of Prem Chand Vs. District Judge, Jhansi and others, 1998 ALR 339, held that the definition of "family" under Section 3(g) of the Act includes spouse, son, parents, grandparents, unmarried or widowed or judicially separated daughter, grand-daughter. The landlord can validly file an application for need of his grandson under Section 21(1)(a) of the Act.

Further, the Apex Court in the case of K.V. Muthu Vs. Angamuthu Ammal, AIR, 1997, SC, 628, the Hon'ble Supreme Court has held as under :-

"Son" as understood in common parlance means a natural son born to a person after marriage. It is the direct blood relationship which is the essence of the term in which "Son" is usually understood, emphasis being on legitimacy. In legal parlance, however, "Son" has a little wider connotation. It may include not only the natural son but also son's son, namely, the grand child, and where the personal law permits adoption, it also includes an adopted son."

Needless to mention herein that while interpreting a definition, it has to be borne in mind that interpretation placed on it should not only be not repugnant to the context, it should also be such as would aid the achievement of the purpose which is sought to be served by the Act. A construction which defeat or was likely to be defeat the purpose of the Act has to be ignored and not accepted.

For the foregoing reasons, petitioner cannot derive any benefit from the judgment passed by this Court in the case of Rahiman (supra), so argument advanced by Sri Mohd. Arif Khan, Senior Advocate, learned counsel for petitioners that respondent nos. 3 & 4/grandsons of original landlord-owner/Sri Ramdin (deceased) does not come under the definition of "male lineal descendant" has got no force accordingly rejected.

Next point which to be considered in present case is that whether respondent nos. 3 & 4 come within the definition of "legal representative" as given under Section 21(1)(7) of the U.P. Act in order to entitle them to prosecute the application moved for release the premises in question by Ramdin (deceased)/original landlord/owner on the basis of registered Will.

The definition of legal representative as given in the Code of Civil Procedure in Section 2(11) has been interpreted by the Hon'ble Apex Court in the case of Chiranjilal Shrilal Goenka Vs. Jasjit Singh and others (1993) 2 SCC 507, in Paragraph 10, held as under :-

"In the Official Liquidator Vs. Parthasarathi Sinha this Court considered whether the legal representative would be bound by the liability for misfeasance proceeding against the deceased. While considering that question under Section 50 CPC this Court held that the legal representative, of course, would not be liable for any sum beyond the value of the estate of the deceased in his hand. Mulla on CPC, 14th Edn., Vol.1 at p. 27 stated that a person on whom the estate of the deceased devolves would be his legal representative even if he is not in actual possession of the estate. It includes heirs and also persons who without title either as executors, administrators where in possession of the estate of the deceased. It is, therefore, clear that the term legal representative is wide and inclusive of not only the heirs but also inter-meddlers of the estate of the deceased as well as a person who in law represents the estate of the deceased. It is not necessarily confined to heirs alone. The executor, administrators,assigns or person acquiring interest by devolution under Order 22 Rule 10 or legatee under a will, are legal representatives."

In the case of Kalu Ram and another Vs. Charan Singh and another, AIR 1994, Rajasthan, 31, in Paragraph 6 & 7 while interpreting the word 'legal representative' held as under :-

6.Having given my careful consideration to the rival contentions raised before me, I am of the opinion that this Revision Petition merits acceptance. Section 2(11) of the C.P.C., which defines 'legal representative', makes it abundantly clear that the persons other than legal heir can also be legal representative. Even an intermiddler with the estate of deceased can also be allowed to represent the estate for the purpose of pending proceedings before the court.

7.As to the facts of the present case are concerned, it is not disputed that a registered Will do exist in favour of the applicant, though, whether it confers any title in the property covered by Will on the applicant is disputed and it is also disputed whether the Will has been validly executed in accordance with the provisions of Succession Act; but,it definitely goes to show that the applicant has a reasonable edifice to put forward his claim for the purpose of being impleaded as legal representative of the deceased appellant. No other claim to the estate of deceased has come forward to have a better right to represent the estate before the Court."

In the case of M/S.Nadri Prasad Daya Ram and others Vs. Ramesh Chandra Gupta and another, ARC 1997(2), 654, this Court held as under :-

"The application under Section 21(1)(a) of the Act has yet not been disposed of. The landlady died ruing the pendency of the application and respondent no. 2 has filed an application for amendment of the application not only for seeking substitution but also setting up his own need. Sub Section (7) of Section 21 of the Act provides that where during the pendency of an application under clause (a) of sub section (1) the landlord dies his legal representatives shall be entitled to prosecute such application further on the basis of their own need in substitution of the need of the deceased. This provision clearly contemplates the situation where the landlord dies and his heirs are entitled to prosecute the application on the basis of their need."

In the case of Mohan Singh Bedi Vs. Phool Chand and others, ARC 1982, 421, landlord moved an application for release of residential accommodation under Section 16 of the U.P. Act no. XIII of 1972, the District Magistrate/Rent Control Officer, Lucknow rejected the landlord's application for release and allotted the premises in disputed to one Sri Phool Chand. The said order confirmed by revisional authority. Thereafter, the landlord Smt. Leela Devi filed a Writ Petition before this Court. During the pendency of writ petition, she sold the building to Sri Mohan Singh Bedi, substituted and brought on record in place of original petitioner.

In view of the above said fact, in the case of Mohan Singh Bedi (Supra), this Court held as under :-

"9. Sub- section (2) of Section 16 provides that an order of release shall not be passed in favour of the landlord unless the District Magistrate is satisfied that the building or any part thereof is bonafide required by the landlord for occupation by himself or any member of his family or any person for whose benefit it is held by him. Another provision for release in favour of landlord is Section 21, Clause(a) of sub section (1) of this section also speaks of bona fide requirement of the landlord for occupation by himself or any member of his family or any person for whose benefit it is held. Now a landlord may bona fide require a building for the purposes mentioned therein but his heirs or transferees may not have any such requirement. It is for this reason that it has been specifically provided under sub section (7) of Section 21 that on the death of the landlord his legal representatives can prosecute further the application under Section 21(1) (a) on the basis of his own need in substitution of the need of the deceased. The legal representative cannot, therefore, claim further prosecution of the application on the basis of the need set up by his predecessor. These provisions made it abundantly clear that an application for release whether made under Section 16 or under Section 21 has to be decided on the basis of the need of applicant himself. The right of release is therefore, a personal right. Consequently there cannot be a general right of substitution on the death of the applicant or on transfer of property by the applicant. Only the limited right of substitution provided under Section 34(4) of the two provisions, he is not entitled either to be substituted in place of his transferor or to prosecute further the present writ petition. On the transfer of the property by Leela Devi the present writ petition has abated."

In the case of Smt. Dhanwanti Devi Vs. Shri Rama Shankar, ARC, 1982, 747, this Court while interpreting the provisions of Section 21(1)(7) of U.P. Act of 1972 held as under :-

"From these provisions and other provisions which shall be referred to herein below the conclusion seems inescapable that the assignee of a landlord purchasing the building after passing of the order of eviction under Section 21(1)(a) whose need and comparative hardship the Prescribed Authority has had no occasion to investigate and adjudicate upon, cannot apply for enforcement of the order of eviction under Section 23."

Accordingly, in view of the above said facts, the respondent nos. 3 & 4, who are grand-sons of Ramdin, original landlord, owner on the basis of registered Will has got a right to prosecute the matter in question in the capacity of "legal representative" of the deceased, Ramdin as per provisions provided under Section 21(1)(7) of the Act. Hence, there is neither any infirmity nor illegality in the impugned orders passed by court below thereby allowing the application for substitution moved by respondent nos. 3 & 4 to be substituted in place of Ramdin, original landlord who moved the release application under Section 21(1)(a) of U.P. Act no. XIII of 1972.

Last argument raised by learned counsel for petitioners that respondent nos. 3 & 4 could not be substituted on the basis of registered Will executed by Ramdin because Ram Swaroop one of the son of Sri Ramdin filed a Suit for declaration and permanent injunction in respect to the house in question under the tenancy of petitioners seeking a decree for declaration that the alleged Will have been executed by Ramdin by way of fraud and misrepresentation after his death be declared to be null and void on the ground inter alia stated that no such Will was ever executed by Ramdin on his own free will and accord in his lifetime and after his death, the so called Will was got procured by fraud, accordingly, once the said Regular Suit No. 487 of 2005, pending in the court of Civil Judge(S.D.), Sitapur, then in that circumstances, respondent nos. 3 & 4 have no right to move substitution application, so the orders passed by respondent nos. 1 & 2 are illegal and liable to be set aside.

So far above argument raised by learned counsel for petitioners is concerned, has no merit because even if one of the son of Ramdin, original landlord(deceased) i.e. Ram Swaroop filed a Suit for cancellation of registered Will executed in favour of respondent nos. 3 & 4 on the ground obtained by way of fraud. The said matter not finally decided by the competent court/civil court, so the same cannot be a legal impediment in the way of respondent nos. 3 & 4 to move a substitution application in the matter in question on the basis of registered Will. As it is settled proposition of law that the validity of registered Will cannot adjudicated by the authorities under the Rent Control Act and the same is binding on them until and unless not set aside by the competent court of law as held by the Hon'ble Apex Court in the case of Smt. Ramti Devi Vs. Union of India, (1995) 1 SCC 198 held that a duly registered document (Will) remains valid and binds the parties until the document is avoided or cancelled by proper declaration. The aforesaid observation was made in connection with the plea raised by the appellant therein to have the document avoided or cancelled which necessarily, a declaration has to be given by the Court in that behalf . So is the case here.

In the case of Raghunath Prasad Vs. Ist Additional District Judge, Nanital and others , 1982 Allahabad Rent Cases, 120 this Court has held as under:-

"The courts below have also commented upon the title claimed by the two parties over the disputed accommodation. The Rent Control and Eviction Officer rightly said that it is a matter for the Civil Court to decide in appropriate proceedings. The revisional court has also said the same thing though it has also observed that prima facie the petitioner does not have any valid claim to the property. The observations of the court below that the question of title could not be decided finally in these proceedings appear to be correct and call for no interference. The courts below obviously could not finally dispose of the question of title involved in the case. The question whether the petitioner is the owner of the property or not can be properly decide only in a regular civil court or other appropriate proceedings . I am , hence making no comments on the finding given by the revisional court with regard to the claim of title raised by the petitioner."

In Panna Lal Vs. Dr. Raj Kumar Singh , 1988 (1) ARC 123, it has been held that Court cannot go into the question of proof of Will in release proceedings in the same manner as is done in regular civil or testamentary matters.

In Khem Chand Vs. IV th Additonal District Judge, Bulandshahr, 1989(2) ARC 344, it has been held that genuineness of the partition decree passed by a civil court cannot be decided in a release proceeding. So long as such decree is not aside, it has to be accepted as genuine.

In Raj Mohan Krishna Vs. The IInd Additional District Judge and others, AIR 1993 Alld. 40 is an authority of this court of Hon'ble Mr. Justice G.P. Mathur ( as he then was ) that it is not open to the tenant to challenge the decree passed in a civil suit, in release proceedings. The Prescribed Authority is a Tribunal of limited jurisdiction which has been constituted under the Act for deciding the release application. It has no jurisdiction to all to examine the correctness or otherwise of a decree passed by a competent Civil Court.

Hon'ble the Apex Court in the case of Vijay Lata Sharma Vs. Raj Pal and another, 2004(2) ARC 525, the Apex Court has held as under:-

"In our view, in the facts and circumstances as mentioned in the release application and also the stand taken by the tenant in written statement and keeping in view the definition of "landlord" in Section 3 (j) , respondent no.2 can neither be said to be necessary nor proper party to the proceedings . The question of title cannot be decided by the prescribed authority under the Act. The orders passed by the Prescribed Authority as well as the High Court , therefore, deserve to be quashed and set aside."

In Smt. Kamla Devi and others Vs. XIth Additional District Judge, Varanasi and others, 2008 (26) LCD 335, a person purchased a house and apply for release under Section 16 (1) (b) of the Act, contested and opposed by another person on the ground that the sale-deed executed in respect to a trust property was void documents and the proceedings under Rent Control Act are not maintainable, the stand taken by the person who opposed release application moved by landlady was negate and in para-10 it has been held as under:-

"Looking to the fact that the petitioner Kamla Devi has purchased the property by means of the registered sale-deed in her favour and the application for allotment was filed as early as on 3rd of November, 1981 and thus, about 26 years are going to pass, it is desirable that the allotment proceedings be dropped and the allotment application be rejected as it would amount to travesty of justice to dispossess a person from the property in question in whose favour a registered sale-deed is still standing and the real owner if any has not come forward to challenge the said sale-deed and the proceedings are bing taken out by a person who is merely an applicant for allotment. Whether the sale-deed standing in favour of Smt. Kamla Devi is valid or not can be adjudicated upon by a Civil Court of Competent jurisdiction and not in these collateral proceedings specially when the said sale deed is not being questioned who may be the ultimate beneficiary , but by a third party having no proprietary interest in the proceedings."

In addition to said fact, the other sons and daughters of deceased, Ramdin including Ram Swaroop who filed a Regular Suit No. 487 of 2005 pending in the court of Civil Judge(S.D.), Sitapur for cancellation of registered Will, have not come forward to challenge the substitution application moved by respondent nos. 3 & 4 or moved any application on their behalf to be impleaded in the matter in question.

For the foregoing reasons the arguments advanced by the learned counsel for the petitioners in this regard has no force, rejected.

Although Sri Mohd. Arif Khan, Senior Advocate, learned counsel for petitioners argued that the release application moved in respect to residential premises is not maintainable for commercial purpose but later on he does not press the said argument and state that the same may be pressed and argued on behalf of his client at an appropriate stage before the Prescribed Authority.

In view of the above said facts, the argument which is advanced in this regard is neither adjudicated nor decided by me in present writ petition at this stage. Moreover, I am of the opinion that the said controversy has also got no relevancy whatsoever in the instant case at this stage because present matter relates only for adjudication and disposal in respect to the substitution application moved by respondent nos. 3 & 4, allowed by the court below challenged by the petitioners before this Court by means of present writ petition.

No other point has been argued or pressed before me.

For the foregoing reasons, I do not find any infirmity in the impugned order dated 06.04.2010 (Annexure no. 6) passed by Additional District Judge, Court no. 9, Sitapur and order dated 09.01.2007 (Annexure no. 4) passed by Judge, Small Causes, Sitapur, accordingly present writ petition lacks merit and dismissed.

No order as to costs.

Order Date :- 26/04/2011

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