Allahabad High Court
Mohan Sharma vs Court Of Additional Distt. ... on 17 April, 2025
Author: Pankaj Bhatia
Bench: Pankaj Bhatia
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
A.F.R.
Neutral Citation. - 2025:AHC-LKO:21498
Reserved: 09.04.2025
Pronounced: 17.04.2025
Court No. - 6
Case :- WRIT - A No. - 4420 of 2024
Petitioner :- Mohan Sharma
Respondent :- Court Of Additional Distt. Judge/Special Judge (S.C./S.T.) Act Bahraich And 3 Others
Counsel for Petitioner :- Pritish Kumar,Amal Rastogi
Counsel for Respondent :- Shobhit Harsh,Girish Chandra Sinha,Jatin Raheja,Shakti Kumar Sharma
Hon'ble Pankaj Bhatia,J.
1. Heard Shri Pritish Kumar, learned counsel for the petitioner and Shri Shobhit Harsh, learned counsel for the respondents.
2. Present petition has been filed by the petitioner challenging the order of release passed by the prescribed authority on 15.04.2023 under Section 12(1)(a) of U.P. Act No.13 of 1972 as well as order dated 29.03.2024 whereby the rent appeal preferred by the petitioner was dismissed.
3. The facts, in brief, are that respondent no.3 filed a release application being Application No.6 of 2009 under Section 21(1)(a) of U.P. Act No.13 of 1972 (hereinafter referred to as 'the Rent Control Act') seeking release of the premises in occupation of the petitioner as a tenant. The said premises as per the release application, comprised of one Kothri, one Khaprail, one tin shed and land appurtenant thereto, and the same was situate at Gata Nos.339, 340/1 & 346 in District Bahraich. In the said application, it was stated that respondent no.3 was aged about 16 years and the tenancy was created by respondent no.4 in favour of the father of the petitioner some time in the month of January, 1972. Respondent No.3 further pleaded that the property in question was bonafidely required for his two sons who were unemployed and would be opening a business of selling building materials. It was also stated that respondent no.3 was due to retire and would open a shop of general merchant at one portion of the premises after retirement. The petitioner rendered appearance and filed reply to the release application and argued that the tenancy in question was created in favour of the father of the petitioner by respondent no.4 herein. It was stated that respondent no.3 and respondent no.4 are real brothers. It was further pleaded that the property under tenancy was ad-measuring 18 ft. by 175 ft. It was also stated that the rent in question was paid by the petitioner to respondent no.4 always and thus, the relationship of landlord and tenant exist in between the petitioner and respondent no.4 only, and there was no relationship of landlord and tenant in between the petitioner and respondent no.3. It was also pleaded that the petitioner was running a timber business and sawmill from the property in question and the rent in question was paid to respondent no.4. It is stated that father of the petitioner expired on 16.11.1995 and thereafter, the tenancy continued in favour of the petitioner on a yearly rent of Rs.2,400/- which was being paid to respondent no.4.
4. It was further pleaded that during the pendency of the petition, respondent no.4 sold off land ad-measuring 2000 sq.ft. out of the total land owned by respondent nos.3 & 4 to the petitioner and his wife vide registered sale deed dated 24.12.2008. Another portion of the share of respondent no.4 ad-measuring 1298.74 sq.ft. was sold in favour of the petitioner vide registered deed dated 13.10.2011 and third sale deed was executed from the share of respondent no.4 ad-mesuring 3701.6 sq.ft. vide registered deed dated 13.02.2012 and thereafter, the names of the petitioner and his wife were duly mutated in the revenue records.
5. In the light of the said, a defence was taken that after purchasing the property from respondent no.4, the petitioner had become the co-owner of the property and as such, the release application was not maintainable against him. It has been pleaded in the petition that no partition by metes and bounds took place in between respondent no.3 and respondent no.4 or after purchasing the share of respondent no.4 with the respondent no.3 and thus, he had become a co-sharer in the property.
6. In the light of the said pleadings, the release application was heard and decided in favour of respondent no.3 releasing the portion of the property which fell into the share of respondent no.3 after recording finding in respect of bonafide need and comparative hardship.
7. It is essential to notice that the petitioner has pleaded that a suit for cancellation of the registered sale deed dated 24.12.2008 is pending in the Court of Civil Judge (Junior Division), Bahraich being Regular Suit No.142 of 2011.
8. As already noticed above, the release application was allowed in favour of respondent no.3, aggrieved against the said release order passed on 15.04.2023, an appeal was preferred under Section 22 of the Act, however, the same came to be dismissed by means of the judgment dated 29.03.2024. The said judgments are under challenge in the present writ petition.
9. Submission of learned counsel for the petitioner is that as the petitioner had purchased part of the entire property from respondent no.4, there was no relation of landlord and tenant in between the petitioner and respondent no.3. He draws my attention to Section 3(j) of Rent Control Act which defines 'landlord'. He next argues that the petitioner was admittedly the tenant of the entire premises, part of which was sold to him by respondent no.4, and thus, there cannot be any split of tenancy. He argues that once the tenancy cannot be split, the release application filed at the instance of respondent no.3 was not maintainable. He further argues that after purchasing a part of the property from respondent no.4, he became the co-owner of the property and thus, his status of a tenant changed to a co-owner, against whom a release application is not maintainable.
10. Learned counsel for the respondent strongly opposed the arguments as raised by the petitioner. He argues that the property in question came to the share of respondent no.3 by virtue of a family settlement in between respondent no.3 and respondent no.4 and thus, the release application at the instance of the respondent no.3 against the petitioner was maintainable in respect of the portion which fell in his share by virtue of the said family settlement. It is argued that the said settlement was an oral family settlement and after the said oral family settlement, respondent no.4 had sold a part of the portion of his share to the petitioner and thus, the argument that the petitioner became the co-sharer of the entire property is wholly unjustified. He argues that after the family settlement in respect of the share which fell in the share of respondent no.3, the status of the petitioner as a tenant continued and thus, to that extent, the submission of the counsel for the petitioner merits rejection. He further argues that the petitioner has stopped paying any rent whatsoever either to respondent no.3 or to respondent no.4 and thus, the equities are also against the petitioner. He further argues that the argument with regard to splitting of tenancy merits rejection inasmuch as the petitioner continued to be the tenant of the portion of the property which fell in the share of respondent no.3 and became the owner of the property in respect of the share purchased by him which came in the share of respondent no.4 by virtue of the family settlement and thus, the petitioner never became the co-owner of the property which fell in the share of respondent no.3.
11. In respect of the suit filed for cancellation of the sale deed, it is argued that the said suit was filed on the ground that the boundaries shown in the sale deed were incorrect.
12. Learned counsel for the parties have relied upon the judgments which I shall refer later on.
13. In the light of the pleadings, it is essential to notice the appellate Court's judgment wherein the appellate Court after recording the pleadings held that the property in question was taken on rent by the father of the petitioner during his lifetime on which a sawmill and business relating to wood was being done run. The Court also noticed that there was a family settlement that took place and in the said family settlement in between respondent no.3 and respondent no.4, a part of the property, as per the family settlement, fell in the share of respondent no.3. The Court also noticed the facts with regard to Revision No.883 filed under Section 333 of U.P.Z.A. & L.R. Act and the order passed therein on 18.09.2003 wherein it was noticed that in the said proceedings it was admitted by P.W. 3 that the family settlement had taken place and the property in question was divided. The Court also noticed that there was no material to suggest that the family partition did not take place. The Court also noticed that the petitioner had purchased a part of the property from respondent no.4 in which definite boundaries were indicated which itself indicates that the petitioner was also aware of the partition of the property and thus, had purchased definite shares of which the boundaries were earmarked from the share which fell in the share of respondent no.4. The Court also noticed the suit that was filed being Regular Suit No.142 of 2011 in which a sale deed dated 24.12.2008 was sought to be set aside only on the ground that the boundaries indicated in the sale deed were improper and in the light of the said evidences, it held that a family partition had taken place in between respondent no.3 and respondent no.4 and thus, the relationship of landlord and tenant stood established in between the petitioner and respondent no.3 holding him to be the owner of the share which fell as per the family settlement/partition. The Court also noticed the submission that the mutation entries were not affected and recorded that it is well settled that the mutation entries are only taxation entries. The Court also noticed that an issue was framed in SCC Suit No.11 of 2009 which was decided in favour of the plaintiff to the said suit holding that the SCC Suit was maintainable at his instance. The Court also noticed the contention of the petitioner that he had raised construction and was co-owner of a part of the property. The Court in that context noticed the sale deeds wherein only the lands were shown to have been sold by respondent no.4 in favour of the petitioner, and after analyzing the evidences recorded a conclusion that the petition at the instance of respondent no.3 was maintainable under Section 21(1)(a) of the Rent Control Act. The Court thereafter noticed and recorded finding on the bonafide need and also took into consideration that one of the sons of the landlord was a practicing lawyer and wanted to set up his chamber in residence over the property. The Court noticed and recorded the argument of petitioner that the son of the landlord who was a practicing lawyer was practicing at Lucknow and not at Bahraich. The Court recorded that merely because he was practicing at Lucknow does not mean that he could not have the desire to start practicing at Bahraich where the property was situated. The Court also noticed the argument of the petitioner in respect of comparative hardship and also recorded that the sawmill which was being run stands closed in view of the orders passed by the Supreme Court. The Court also noticed that no effort was made by the petitioner to seek any other tenanted premises during the pendency of petition which fact was construed against the petitioner.
14. In respect of the other property owned by the petitioner/tenant, the Court noticed that a pleading was taken that the son of the tenant was running his business from the said property. The Court held the same against the petitioner by holding that no evidence in the form of the deposition of the wife of the petitioner or the son was brought on record to dismiss the said argument of landlord. In the context of the said, the appeal came to be dismissed.
15. In the entire petition filed before this Court and as per the arguments recorded above, the claim of the petitioner is that he had purchased a part of the property from respondent no.4 and thus, he became the co-owner. The said argument merits rejection for the sole reason that the appellate Court had recorded that properties with specified boundaries were purchased by virtue of the sale deeds, and in the entire petition, there is no averment/pleading that the said finding recorded by the appellate Court is erroneous or perverse. Thus, the argument is contrary to pleadings.
16. As regards the argument of the petitioner that the relationship of landlord and tenant does not exist merits rejection inasmuch as in terms of the provisions contained under the Rent Control Act, the words used are 'that the landlord is a person to whom the rent is payable and not actually paid'.
17. In terms of the findings recorded that there was a family settlement/partition, clearly, in respect of the portion of which respondent no.3 had become the owner, the rent was payable to him and thus, the argument that the relationship of landlord and tenant was not established also merits rejection and is rejected.
18. As regards the third argument with regard to splitting of tenancy, the same further merits rejection for the reason that there was no splitting of tenancy. After the family settlement, the share which fell in the share of respondent no.4 was purchased by the petitioner of which the petitioner become the owner and the tenancy continued in respect of the share which fell in the share of respondent no.3, which was under the occupation of the petitioner, as such, the contention to that extent is rejected.
19. It is essential to notice that there was no contention in the entire petition that the rent was paid either to respondent no.3 or to respondent no.4 at any point of time, which fact demonstrates that in exercise of equitable jurisdiction also, the petitioner is not entitled to any relief from this Court.
20. Now coming to the judgments cited by the parties.
21. Learned counsel for the petitioner relies upon the judgment in the case of Abdul Alim v. Sheikh Jamal Uddin Ansari; AIR ONLINE 1997 SC 185. The said judgment would have no applicability to the facts of the present case inasmuch as the share sold by respondent no.4 to the petitioner was not as a co-owner after the partition through family settlement in between respondent no.3 and respondent no.4, and was as a sole owner of his share.
22. The second judgment cited by counsel for the petitioner is in the case of Kewal Singh v. Mt. Lajwanti; AIR 1980 SC 161. He relies upon Para 21 of the said judgment to argue that it was incumbent upon the respondent to have filed a suit under the Transfer of Property Act for vacating of the premises. The said argument merits rejection inasmuch as the petitioner after the family settlement continued to be the tenant of respondent no.3.
23. The next judgment relied is in the case of Pramod Kumar Jaiswal and Ors. v. Bibi Husn Bano and Ors.; 2005 AIR SCW 3240 founded on the provision of Section 111(d) of the Transfer of Property Act. He argues that the Rent Control Act is a special legislation eclipsing the provision of Transfer of Property Act in respect of the premises which are governed under the Rent Control Act.
24. The said argument also merits rejection inasmuch as by virtue of U.P. Act No.13 of 1972, the common rights flowing in favour of the lessor and lessee under the Transfer of Property Act stood eclipsed only in respect of rate of rent, selection of tenant and for vacation of the premises. The Rent Control Act does not entirely eclipse the Transfer of Property Act. However, this issue would not arise in the present case as the reasoning has been recorded after appreciation of the evidences that the property in question fell in the share of respondent no.3 after a family settlement.
25. The other judgment cited in the case of Shabbir Ahmed v. Syed Mohammad Ali Ahmed Kabir; 2016 (2) ALJ 1, has no relevance in the present case in view of the findings that the property after mutual settlement fell in the share of respondent no.3.
26. Similarly, the judgment of this Court in the case of Gulab Chand Verma v. Badri Narain Mishr; AIR 2005 Allahabad 133 also would have no applicability to the facts of the present case.
27. The other judgment cited by counsel for the petitioner in the case of Nazar Mohammad and Ors. v. Pushpa Devi and Ors.; 2014 Law Suit (All) 983 has no applicability to the facts of the present case as the property in question was never sold by the co-owner and was sold by an individual owner i.e. respondent no.4 in respect of the property which fell in his share by virtue of a family settlement.
28. In view of the findings recorded by the appellate Court and there being no averment in the writ petition with regard to the findings of fact being either arbitrary or perverse specifically in respect to the family settlement/partition, no interference is required in exercise of powers under Art. 226 of the Constitution.
29. Present petition lacks merit and is accordingly dismissed.
30. The execution of the decree passed by the appellate Court shall be concluded expeditiously within six months in the light of the directions issued by the Supreme Court in the case of Periyammal (Dead) Through L.Rs. & Ors. v. Rajamani & Anr. Etc., (Civil Appeal Nos.3640-3642 of 2025) decided on 06.03.2025.
Order Date:- 17.04.2025 [Pankaj Bhatia, J.]
nishant
