Allahabad High Court
Mohammad Shakeel Khan vs Izharul Ansari on 16 October, 2015
Bench: Suneet Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 58
Case :- WRIT - A No. - 6820 of 2015
Petitioner :- Mohammad Shakeel Khan
Respondent :- Izharul Ansari
Counsel for Petitioner :- Virendra Singh,Atul Yadav,Sri Zafar Naiyer
Counsel for Respondent :- Manish Tandon,Smt. Komal Khare,Somesh Khare
Hon'ble Suneet Kumar,J.
The petitioner-tenant is assailing the order dated 16 December 2014, passed in Rent Appeal No. 64 of 2014 arising from an order, passed in Rent Case allowing the release application of the disputed property in favour of the respondent-landlord.
The claim set up by the respondent-landlord was that a portion of the property being House No. 132/397 admeasuring 481 sq. yard was purchased from Sahnaz Begum by registered sale deed dated 16 May 2005, thereafter, upon serving six months notice, the respondent-landlord filed release application setting up a bona fide need for the premises for the need of his family members, stating therein, that the respondent is residing along with his father in a tenanted house in one room along with his wife and children, hence need for the premises.
The release application was contested by the petitioner-tenant stating that the respondent is neither owner nor landlord, the petitioner purchased a portion of property from the erstwhile owner Sri Rameshwar Prasad in the name of his wife Malka, through a document of transfer being unregistered notarized deed dated 7 February 2000.
The courts below upon appreciating the material and evidence available on record, recorded a finding that the petitioner is not entitled to the disputed property on the basis of unregistered notarized sale deed, the court below incidently decided the issue of title in favour of respondent-landlord holding that unregistered document cannot be read in evidence, whereas the respondent, landlord vide registered sale deed duly purchased the property from Sahnaz Begum.
The Prescribed Authority framed three issues:
1.relationship of landlord and tenant between the parties;
2.bona fide need.
3.comparative hardship.
The courts below placing reliance upon a document obtained by the landlord under Right to Information Act 2005, wherein, the petitioner made a statement before the concerned officer stating that he is the tenant of House No. 132/397, Babupurwa, Kanpur at Rs. 40/ per month and is residing therein since 25 years. The said house was taken on rent from Ram Narain, the house was sold to different persons by erstwhile owner but the petitioner continued to remain tenant. It was further stated that the rent is being deposited with the son of Ram Narain, the rent receipt ( paper no. 36) was also filed.
Learned counsel for the petitioner is assailing the finding of the courts below regarding as to whether the landlord and tenant relationship exist between the parties.
It is submitted on behalf of the petitioner that in absence of evidence to establish the relationship of landlord and tenant, the application, under Section 21(1)(a) of Act 13 of 1972 would not be maintainable.
The record would reveal that the disputed property being House No. 132/397 was sold in parts by the erstwhile owner Ram Prasad, to four persons including Sahnaz Begum. The respondent landlord purchased the portion of the property from Sahnaz Begum by registered sale deed duly executed on 13/16 May 2005. The claim set up by the petitioner is on the basis of a notarized sale deed alleged to have been executed by Rameshwar Prasad. The court below apart from recording that the petitioner was a tenant of erstwhile owner Rameshwar Prasad and continued as such and were justified in not placing reliance upon the unregistered and unstamped document in view of section 17 and 49 of the Registration Act read with section 35 of Stamp Act.
The court below incidently decided the issue regarding ownership of the property upon taking notice of the fact that the erstwhile executant of the sale deed Shyam Babu deposed on an affidavit clearly stating the fact that the executant had never executed any sale deed in favour of Malka, wife of the petitioner. The appellate court also recorded that till date, the petitioner has not filed any suit for declaration with regard to alleged sale deed claimed by himself through his wife, the alleged entry in Municipal record in favour of the petitioner was rightly noted by the court below that it would not create any right or presumption of title in favour of the petitioner. Both the courts below have recorded concurrent finding of fact with regard to bona fide need of landlord and have decided that the petitioner is a tenant.
The court below in my opinion, on the material available on record were justified in holding that the petitioner was a tenant.
This Court in writ jurisdiction, under Article 226 of the Constitution of India would not disturb the concurrent finding of fact as the learned counsel for the petitioner has failed to show or demonstrate that the findings are perverse.
Having due regard to the facts and circumstances of the case, I do not find any illegality or infirmity in the impugned orders.
The writ petition is accordingly, dismissed. However, it is provided that in case the petitioner gives an undertaking on oath before the court below that he shall vacate the premises in question and hand over the possession of the same peacefully to the respondent-landlord on or before 30 April 2016, eviction of the petitioner be not done till then. The aforesaid undertaking on oath shall be given by the petitioner before the court below within a period of fifteen days from today and the petitioner shall deposit the monthly rent of the premises in question before the court concerned as per current rent fixed and shall continue to deposit the same by 7th of each calendar month till the vacation of the premises in question, which amount may be permitted to be withdrawn by the respondent-landlord after due verification by the court concerned.
In case of default, protection granted above to the petitioner shall automatically stand vacated.
No order as to costs
Order Date :- 16.10.2015
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