Bhanu Prakash Chaturvedi vs Smt. Jairani And Ors.
2015 Latest Caselaw 760 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 25                                                                           A.F.R.
 

 
Case :- RENT CONTROL No. - 121 of 2013
 

 
Petitioner :- Bhanu Prakash Chaturvedi
 
Respondent :- Smt. Jairani And Ors.
 
Counsel for Petitioner :- Sudeep Seth
 
Counsel for Respondent :- Manish Kumar,Abhishek Dhaon,Sidharth Dhaon
 

 
                                                         *****
 

 
Hon'ble Aditya Nath Mittal,J.

Heard Shri Sudeep Seth, learned counsel for the petitioner and Shri Siddharth Dhaon, learned counsel appearing for the opposite parties and perused the record.

This writ petition has been filed under Article 226 of the Constitution of India with the prayer in the nature of certiorari for quashing the impugned judgment and order dated 26.04.2013, passed by the Court of Additional District Judge, Court No.1, Hardoi in Rent Appeal No.1 of 2004 as well as the judgment and order dated 07.04.2004, passed in P.A. Case No.02 of 1985.

The brief facts of the case are that Smt. Ganga Devi along with her sons filed an application under Section 21 of the U.P. Act No.13 of 1972 for release of the shop in question. It was alleged that the applicants have purchased the house from Hemraj Shivni vide sale deed dated 09.12.1977 in which the shop is also situated and Hemraj Shivni had purchased the plot of the land from Sri Syed Ejaz Rasool vide sale deed dated 03.05.1954. Lalta Prasad Chaturvedi was the tenant of Hemraj Shivni at the rate of Rs.80/- per month, in which the shop in the name and style of Prakash Gun House was carried out. After the death of Lalta Prasad Chaturvedi, his legal heirs became the tenant. The shop in question is in dilapidated condition, which requires reconstruction. It was further alleged that the shop in question was required for Triloki Nath and Ashok Kumar as well as the applicant nos. 3 and 4 who wanted to do their business. It was also alleged that the opposite party no.2 was an employee in the Railway and opposite party no.4 was carrying on the business in the name of Prakash Gun House. The opposite party no.3 had taken another shop on rent, in which he was doing business of Jawahar Machinery Store. The opposite parties had sought permission from the District Magistrate to carry on the business in the shop of Chaudhary Sarafat Ullah Kirmani and permission was granted to him. The notice was issued to the opposite parties to vacate the shop but they have not vacated the shop. It was also alleged in the replication that Lalta Prasad Chaturvedi had instituted a Misc. Case No.24 of 1978 for depositing the rent, in which he had admitted the ownership of the applicants. Another P.A.Suit No.07 of 1978 was instituted against Lalta Prasad Chaturvedi in which Lalta Prasad Chaturvedi and his successors had admitted the applicants as owner and landlord.

The opposite parties had filed their written statement in which it was alleged that regarding the same subject matter another suit was filed, which was withdrawn. It was denied that the shop is in dilapidated condition. The opposite party nos. 1, 2 and 3 had also stated that the opposite party nos. 2, 3, 5, 6, 7 and 8 have no concern with the shop in which the business in the name and style of Prakash Gun House is being carried out. It was also alleged that the applicants no.1 has other shop and there was no bonafide need. The application was contested mainly by the opposite party no.4, Bhanu Prakash Chaturvedi, who is the petitioner in this case, who has alleged that Lalta Prasad Chaturvedi had purchased the plot of land for a consideration of Rs.50/- from the fruit seller Pohap and Lalta Prasad Chaturvedi had constructed the shop in the year 1966, in which the business in the name and style of Prakash Gun House is being carried out. Lalta Prasad Chaturvedi had executed a Will in favour of Bhanu Prakash Chaturvedi, therefore, Bhanu Prakash Chaturvedi is the owner of the shop in dispute. The sale deed in favour of Ganga Devi is forged. The petitioner, who was opposite party no.4, had filed an amendment on 16.01.2004, in which it was admitted that the shop in dispute belonged to Syed Ejaz Rasool, who had executed a lease-deed on 19.05.1931 in favour of Sultan Ahmad Bilgrami. Therefore, Syed Ejaz Rasool had no right to execute the sale-deed because the lease deed was never cancelled, therefore, the sale-deed executed in favour of Hemraj Shivni was not effective.

After considering the evidence of both the parties, the learned Prescribed Authority came to the conclusion that the applicants were the owner landlord of the shop in question while the opposite party no.4 (petitioner) was not the owner of the property in question. Learned court below also came to the conclusion that there was bonafide need of the applicants and the comparative hardship was also in favour of the applicants. It was also held that the shop in question was in a dilapidated condition, which requires reconstruction and accordingly allowed the application by judgment and order dated 07.04.2004. The said judgment was challenged in the Rent Appeal No.01 of 2004, which was also dismissed by judgment and order dated 26.04.2013.

Learned counsel for the petitioner has submitted that the Prescribed Authority had no jurisdiction to decide the title of the parties and he has exceeded his jurisdiction. It has also been submitted that Syed Ejaz Rasool has no right to execute the sale-deed and the sale-deed was a forged and fabricated document, therefore, it was not filed in the court below. It has also been submitted that the learned court below has wrongly relied upon the admissions of Lalta Prasad Chaturvedi, which were not admissible in the evidence. It has also been submitted that the landlady was never appeared in the witness box, therefore, the application could not have been allowed.

Learned counsel for the petitioner has relied upon the case Vijay Lata Sharma vs. Raj Pal and another reported in (2004) 6 Supreme Court Cases 762, in which Hon'ble the Apex Court in para-9 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 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."

Learned counsel for the petitioner has further relied upon the case Sukha vs. Vth Additional District Judge, Aligarh and others reported in 1989 (1) ARC 349, in which Hon'ble the Single Judge of this Court in paras-9 and 10 has held as under:-

"In D.S. Victor v. District Judge, Bareilly, 1978 ARC 413, this Court considered the question as to how far the Prescribed Authority can go into the question of title in respect of the property sought to be released. It was laid down that if the question of title released in the case was of complicated or difficult nature then such a decision could not be made by the Prescribed Authority. In such a case it is proper that a complete adjudication of the controversy takes place by means of a regular suit. It was further observed that as to whether the Prescribed Authority can go into the question of title will depend upon the facts of each case and it was not possible to lay down any criteria exhaustively which has to be taken into consideration while deciding this question. It was further observed that where an authority finds that the question of title of the landlord has been disputed by the tenant with an ulterior motive for the purpose of delaying the disposal, the Prescribed Authority would certainly investigate into the title and decide it. In such a case, the question of title could be said to have incidently arisen for decision. Similarly, where a dispute of title by the tenant appears to be frivolous, the Prescribed Authority would be fully competent to decide the same. I respectfully agree, with the decision given in the case of D.S. Victor (supra).

In the instant case, the Prescribed Authority found that there was no evidence at all to establish the relationship of landlord and tenant. In appeal, the Appellate Authority considered the documents of title filed by both the parties and, thereafter, observed that respondent No.3, Mohd. Ishaq was the owner of the property in dispute. Since volumnous evidence was there to establish the ownership on behalf of both the petitioner as well as respondent and complicated question of title was involved, it was nor proper for the Appellate Authority to have gone into the question of title and decide the same. The finding recorded by it, consequently, cannot stand. The Appellate Authority has not gone into the question as to whether a relationship of landlord and tenant is established or not. If relationship of landlord and tenant is not established, the question of finding the release application does not arise. The Prescribed Authority has categorically found that there is no evidence to establish the relationship of land lord and tenant between the parties. In this Court, no evidence has been produced to show that such relationship between the landlord and tenant exists. The application for release was clearly not maintainable and the finding, if any, recorded in regard to ownership by the Appellate Authority is not binding on the parties. The submission made by learned counsel for the petitioner is founded. The application under Section 21 (1) (a) of the Act was not maintainable in law".

Learned counsel for the petitioner has further relied upon the case Arjun Khiamal Makhijani vs. Jamnadas C. Tuliani and others reported in (1989) 4 Supreme Court Cases 612, in which, Hon'ble Apex Court has held as under:-

"In so far as the submission that the landlord was bound by his admission in the pleading is concerned, it is true that such an admission being a judicial admission under Section 58 of the Evidence Act stands on a higher footing than evidentiary admissions as held by this Court in Nagindas Ramdas v. Dalpatram Ichharam, [1974] 1 SCC page 242, but on the facts of the instant case to which reference shall be shortly made, it is the proviso to Section 58 which comes into play and the rights of the parties had to be determined de hors the said admission. The said proviso contemplates that the Court may in its discretion require the facts admitted to be proved otherwise than by such admissions. The scope of this proviso did not fall for consideration in the case of Nagaindas (supra)".

Learned counsel for the petitioner has further relied upon the case M.P. Wakf Board vs. Subhan Shah (Dead) by LRS. and others reported in (2006) 10 Supreme Court Cases 696, in which Hon'ble the Apex Court in para-22 has held as under:-

"It is also not in dispute that the purported admission on the part of the private parties was a conditional one; by reason whereof, the nature of the property being wakf had not been admitted. An admission of a party must be clear and explicit in a case where an inference is required to be drawn in regard to the fact that thereby he had admitted the title of the other. Generally speaking, even no title can be created by admission."

Learned counsel for the petitioner has also relied upon the case Union of India vs. Ibrahim Uddin and another reported in (2012) 8 Supreme Court Cases 148, in which Hon'ble the Apex Court in paras-33 and 34 has held as under:-

"In the instant case, the first appellate court held that not filing any document in rebuttal of the Will dated 1.3.1929 amounts to admission of the said Will as well as it contents. Without following the procedure as required under Order XII CPC or admission having not been made during the course of hearing before the Court, the question of application of Section 58 of the Evidence Act could not arise.

"Section 58 provides that a fact may not need to be proved in any proceeding which the parties thereto agreed to admit at the hearing or which, before the hearing, they agreed to admit by any writing under their hands or which they admitted by their pleading, even in that case the court may, in its discretion, even if such a admission has been made by the party, require the fact admitted to be proved otherwise than by such admission. In fact, admission by a party may be oral or in writing. `Admissions' are governed under Sections 17 to 31 of the Evidence Act and such admission can be tendered and accepted as substantive evidence. While admission for purposes of trial may dispense with proof of a particular fact. Section 58 deals with admissions during trial i.e. at or before the hearing, which are known as judicial admissions or stipulations dispensed with proof. Admissions are not conclusive proof but may operate as estoppel against its maker. Documents are necessarily either proved by witness or marked on admission".

On the other hand, learned counsel for the opposite parties has submitted that the suit was filed in the year 1985 but the title of the landlord was challenged by an additional written statement in the year 2004, which itself shows the conduct of the petitioner to delay the proceedings. It has also been submitted that the ownership was an ancillary issue, therefore, it could have been decided by the Prescribed Authority. The petitioner had not filed any original document regarding purchase of the land from the fruit seller and the Will Deed, therefore, photocopy was not admissible. It has also been submitted that no probate was granted by the competent court, therefore, Will cannot be taken into consideration. It has also been submitted that P.A. Case No.07 of 1978 was filed against Lalta Prasad Chaturvedi, who had admitted in his written statement the ownership of the applicant and his tenancy. It has also been submitted that Lalta Prasad had filed Misc. Case No.24 of 1978, under Section 30 of U.P. Act No.13 of 1972 for depositing the rent, in which he had admitted that he was tenant of the shop in question, therefore, he had no right to bequeath the property by Will. It has also been submitted that when the predecessor of the petitioner had admitted that the applicants were landlord and he was the tenant then his successors in interest cannot deny the said admission. It has also been submitted that issue of title cannot be looked at this stage by the writ court which has been properly adjudicated upon the concurrent findings by the courts below. The photocopy of the suit filed in the year 1978 has also been annexed as Annexure No.CA-2.

I have considered the rival submissions of learned counsel for both the parties and have also perused the case laws cited by the learned counsel for the parties.

This writ petition has been filed under Article 226 of the Constitution with the prayer to issue a writ of certiorari. Recently Hon'ble the Supreme Court in the case Radhey Shyam and another vs. Chhabi Nath and others reported in [2015] 0 Supreme (SC) 158 has held that judicial orders of civil courts are not amenable to a writ of certiorari under Article 226 of the Constitution. Hon'ble the Supreme Court has further held that there is difference between Article 226 and 227 of the Constitution, which has been considered by Hon'ble the Supreme Court in various judgments. It has further been held that a writ of mandamus will also not lie against a private person who is not discharging any public duty.

In view of the above law laid down by Hon'ble the Supreme Court, the present writ petition under Article 226 of the Constitution is not maintainable.

However, the contentions raised by learned counsel for the petitioner are also being dealt with on merits.

As far as contention of learned counsel for the petitioner that the landlady had never appeared before the court below, therefore, it shall be deemed that the case of applicants was not proved is concerned, I do not find any substance in the submission of learned counsel for the petitioner because Hon'ble the Apex Court in Smt. Ram Kubai and other vs. Hajarimal Dhokalchandak and others reported in AIR 1999 SC 3089 has held that in the proceedings for release, eviction on the ground of bonafide need landlord need not necessarily enter into witness or file his own affidavit as it is not such case which can be proved only and only by the landlord.

As far as question of title is concerned, the law is well settled that the Prescribed Authority cannot decide the question of title but can see the relationship of landlord and tenant. It is also settled law that if the question of title was complicated or difficult nature then such decision could not be made by the Prescribed Authority and in such a case it is proper that complete adjudication of the controversy should take place by means of a regular suit although no specific and exhausted criteria has been laid down. But where the authority find that the question of title of the landlord has been disputed by the tenant with an ulterior motive for the purpose of delaying the disposal, the Prescribed Authority would certainly investigate into the title and decide it. In such a case, the question of title could be said to have incidentally arisen for decision. It is also settled law where a dispute of title by the tenant appears to be frivolous, the Prescribed Authority would be duly competent to decide the same.

As far as the facts of the present case are concerned, it appears that the tenant had denied the title with an ulterior motive for the purpose of delaying the disposal because the suit was filed in the year 1985 and the main contestant is the petitioner, who had also filed his written statement in the year 1989, in which the allegations of the plaint were denied. But subsequently in the year 2004 another additional written statement was filed in which it was alleged that the sale-deed in favour of Ganga Devi was forged and fictitious. Syed Ejaz Rasool had no right to execute the sale-deed in favour of Hemraj Shivni. These specific averments were although might be in the knowledge of the petitioner in 1989 when the written statement was filed, but it was not taken at the first time when the written statement was filed in the year 1989. In this case, the question of title appears to be incidental and not complicated for the simple reason that prior to these proceedings another P.A. Case No.07 of 1978 was filed against Lalta Prasad Chaturvedi, who was the father of the petitioner. He had filed his written statement in those proceedings in which the ownership of the applicants was clearly admitted and the fact of tenancy was also admitted. Lalta Prasad Chaturvedi himself had filed Misc. Case No.24 of 1978 under Section 30 of U.P. Act No.13 of 1972, in which he had admitted that the opposite party i.e. Krishna Kumar Mehrotra had purchased the shop on 09.12.1977 from Hemraj Shivni, who was the then landlord. It was also mentioned in the said application that on 10.12.1977 the opposite party gave notice that he has purchased the shop and the applicants should pay the rant to him but the opposite party had refused to accept the rent, which was also sent through Money Order. The said admissions by the predecessors in interest of the petitioner were during the judicial proceedings before the Court. Therefore, such admission can be accepted as a substantive evidence. Learned counsel for the petitioner has assailed the said admissions on the ground that Section 58 deal with the admission during trial but those admissions were not during trial, therefore, they were not admissible.

I do not agree with the submission of learned counsel for the petitioner because the petitioner is claiming his right from his father based upon Will executed by his father. It has been alleged that his father had purchased the said shop from the fruit seller Pohap. Admittedly, the land in dispute, which is a part of the land owned by Syed Ejaz Rasool belonged to Syed Ejaz Rasool. No such evidence has been adduced as to how the alleged fruit seller Pohap was competent to transfer the land of the disputed shop to the father of the petitioner for a mere consideration of Rs.50/-. As the said fruit seller Pohap had transferred the said land of the shop to the father of the petitioner in the year 1966, then there was no occasion for the father of the petitioner to have admitted the relationship of landlord and tenant in P.A. Case No.07 of 1978. Further more, there was no requirement for the father of the petitioner to have deposited the rent under Section 30 of U.P. Act No.13 of 1972 in Misc. Case No.24 of 1978, in which he had admitted himself to be a tenant of the then landlord Hemraj Shivni and have also admitted to have received the notice from the applicants regarding the purchase of the shop by Ganga Devi and others pursuant to the sale-deed executed by Hemraj Shivni.

Undisputedly, Syed Ejaz Rasool was the owner of the land in dispute and he had executed lease in favour of Mohd. Sultan Ahmad Bilgrami for the part of the plot. Nothing has come in the evidence to show that the sale-deed executed by Syed Ejaz Rasool on 03.05.1954 was regarding the same land which was given on lease to Mohd. Sultan Ahmad Bilgrami. Merely saying that the sale-deed is forged and fabricated, is not sufficient until it is proved to be forged. It has also not been established that why Syed Ejaz Rasool had no right to sell the property in dispute to Hemraj Shivni. Admittedly, the plot of land No.3050/3 is a big plot and a part of it was leased out to Mohd. Sultan Ahmad Bilgrami, as such, the remaining portion of the land, Syed Ejaz Rasool had complete rights, therefore, the sale-deed in favour of Hemraj Shivni cannot be said to be void.

Admittedly, Hemraj Shivni has transferred the property by way of sale-deed dated 09.12.1977 to the applicants and the applicants' after purchase of the property, had served the notice to the petitioner and his family members regarding their ownership.

Both the courts below have considered the evidence of both the parties and have rightly come to the conclusion that the petitioner was not the owner of the shop in dispute while the respondent nos. 1 to 7 were the owners and landlord of the shop in question on the basis of sale-deed. The question of title was not a difficult and complicated, but it was mere incidental, for which, the learned Prescribed Authority was fully competent to decide. It is also important to mention that the petitioner had been in the knowledge of sale-deed dated 09.12.1977, but he has not challenged the said sale-deed in any court of law to establish his ownership on the basis of unregistered sale-deed of Rs.50/- only. Certainly, when the predecessor in interest i.e. Lalta Prasad Chaturvedi had admitted in previous judicial proceedings the relationship of the landlord and the tenant in P.A. Case No.07 of 1978 as well as Misc. Case No.24 of 1978, then the petitioner, who is the son of Lalta Prasad Chaturvedi, cannot claim a better title than that of Lalta Prasad Chaturvedi. Certainly, when Lalta Prasad Chaturvedi was not the owner of the shop in question then his execution of Will regarding the said shop does not carry any weight.

In these circumstances, the question of title was incidental and both the learned courts below have decided it in a right prospective by considering the evidence on record.

In my opinion, both the learned courts below have not committed any error of law in relying the admissions of Lalta Prasad Chaturvedi in the previous judicial proceedings and the petitioner is estopped from challenging it.

So far as personal need, comparative hardship and dilapidated condition of the shop in question is concerned, although no arguments have been advanced by learned counsel for the petitioner on these points, but here I find that both the learned courts below have considered these aspects also categorically and have come to the conclusion that there is bonafide need to the applicants and the comparative hardship is also in favour of the applicants.

Both the courts below have also come to the conclusion that the shop in question is more than fifty years old, therefore, it is in a dilapidated condition.

The findings of both the learned courts below are concurrent and they are based on evidence on record supported by a cogent reason and I do not find any ground to interfere with the said findings.

For the facts and circumstances mentioned above, I do not find any substance in the grounds as well as pleadings of writ petition and the writ petition is liable to be dismissed.

The writ petition is dismissed.

Order Date :- 29.5.2015

Suresh/