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RAM BHAJAN NIGAM versus HEMANT KUMAR NIGAM

High Court of Judicature at Allahabad

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Ram Bhajan Nigam v. Hemant Kumar Nigam - WRIT - A No. 33639 of 2007 [2007] RD-AH 12934 (26 July 2007)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

   Court No. 7

          Civil Misc. Writ Petition No. 33639 Of 2007

         Ram Bhajan Nigam

                        Vs

                                                             Hemant Kumar Nigam

~~~~

Hon'ble Rakesh Tiwari, J.

Heard learned counsel for the parties and perused the record.

This petition under Article 226 of the Constitution has been filed challenging the validity and correctness of the judgment and order dated 18.11.2006 passed by the Judge Small Cause Court/Civil Judge (Senior Division), Banda in S.C.C. Case No. 6/2000, Hemant Kumar Nigam Vs Ram Bhajan Nigam  and the judgment and order dated 23.4.2007 passed by the Additional District Judge, Court No. 1, Banda in Civil Appeal No. 3/2006, Ram Bhajan Nigam Vs Hemant Kumar Nigam.

The petitioner has prayed for a writ of certiorari quashing the aforesaid two orders dated 18.11.2006 and 23.4.2007 and further for a writ of mandamus directing the respondent not to interfere in the peaceful possession of the petitioner over the house in dispute  situated over plot no. 4813 at Banda in his possession.

Respondent Hemant Kumar Nigam Son of Sri Rameshwar Prasad Nigam filed an application under Section 21 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act) against the petitioner for release of the accommodation in dispute as it was required by the landlord for his personal need.

The petitioner contested the release application on the ground that the respondent was not the owner and landlord of the accommodation in dispute and in fact the petitioner himself was the owner. The case set up by the petitioner before the trial court in his written statement is that the Zamindari has not been abolished in district Banda and that he had constructed the house with the permission of the Zamindar and is in occupation of the house since 1938. He further claims that Smt. Narayani Devi and Smt. Jai Devi had no right or authority to sell the aforesaid house to the petitioner and the application has been moved with oblique motive to harass and evict the petitioner who had never been his tenant.

The case of the respondent was that he had purchased the aforesaid house from Smt. Narayani Devi and Smt. Jai Devi. The petitioner-tenant had assured him to vacate the house in dispute after the respondent retired from service from the post of Trade Tax Officer. The respondent had also taken a stand that he is forced to live in a tenanted house at Jhansi and because of the education of his children he has taken another house on rent at Banda but all his efforts to get the house in dispute vacated which he had purchased fell on deaf ears of the petitioner-tenant and he is forced to maintain two establishments at two different places on a meagre pension after his retirement inspite of having his own home.

The contention of the learned counsel for the petitioner is that the respondent was never his landlord and no rent was ever tendered to him. It is stated that the respondent Hemant Kumar Nigam has another house at Banda, as such the need of the respondent-landlord is not genuine and bona fide and he will not suffer any hardship if the release application is rejected.  

On the basis of the pleadings of the parties the trial court framed the following three issues: -

1.Whether there is any relationship of landlord and tenant between the plaintiff and defendant ?

2.Whether the notice given by the plaintiff is legally valid ?

3.Whether the house in dispute is bona fide need of the plaintiff ?

4.Relief ?

On issue no. 1 the Prescribed Authority after appreciation of evidence found that the petitioner absolutely failed to establish his case that he was the landlord of the house in dispute. Per contra, the trial court on the basis of sale-deeds found that the plaintiff (respondent in the writ petition) had purchased the house in which the petitioner was tenant at the rate of Rs. 4/- per month. The Prescribed Authority as a matter of fact found that the petitioner himself had moved an application for allotment of the house showing the respondent Hemant Kumar Nigam as landlord on which the Rent Control and Eviction Officer, Banda had issued notice to him as such. On perusal of documentary evidence the trial court further found that the respondent-landlord had purchased the house in 1982 from Smt. Narayani Devi and Smt. Jai Devi, the erstwhile owners of the house in dispute. The trial court relying upon documentary evidence and the admissions made by the petitioner in case no. 8/12 held that the petitioner had himself moved applications in the courts below claiming himself to be tenant in the house in dispute for depositing the rent in the court below and that the petitioner was in fact a tenant at the rate of Rs. 4/- per month. The trial court further from the certified copies of the judgments in case nos. 1/70/74, 31/70/84 and 24/70/01 between the parties found the petitioner Ram Bhajan to be the tenant of respondent-landlord Hemant Kumar Nigam.

Undisputedly the petitioner had also deposited the house tax etc. in Nagar Palika Parishad, Banda in respect of the said house in dispute as the landlord. The relevant findings are as under: -

^^dkxt la[;k 33x ds }kjk ;g izekf.kr gksrk gS fd jke Hktu djhc 30 o"kZ ls fookfnr edku esa jg jgk FkkA dkxt la[;k 36 x fdjk;k fu;a=.k ,oa vkoaVu vf/kdkjh ds }kjk okn la[;k 8@12 ds ekeys esa ikfjr fd;s x;s fu.kZ; dh udy gS ftlesa izfroknh jke Hktu fuxe us fdjk;snkj gh ekuk x;k gS A vykok blds izfroknh jkeHktu ds }kjk izdh.kZ okn la[;k 30@70@83 U;k;ky; eqaflQ] ckank ds le{k fdjk;s dh /kujkf'k tek djus gsrq izkFkZuk i= izLrqr fd;k x;k Fkk tcdh udy oknh dh vksj ls dkxt la[;k 37x nkf[ky dh x;h gSA blh izdkj ls dkxyt la[;k 40x ds :i esa izdh.kZ okn la[;k 1@70@84 dh udy nkf[ky dh x;h gS rFkk dkxt la[;k 45x ds :i esa izdh.kZ okn la[;k 24@70@2001 ds eqdnesa dh udy nkf[ky dh x;h gSA mijksDr rhuksa eqdnesa ds ek/;e ls izfroknh jke Hktu us ;g izkFkZuk fd;k gS fd fdjk;s dh /kujkf'k U;k;ky; esa tek djkus dh vuqefr fd;k tk; vkSj mijksDr rhuksa eqdnesa vne iSjoh esa [kkfjt gq;s gSA ftldh izekf.kdrk dkxt la[;k 38x] 41x] 42x 43x ls gksrh gSA bl izdkj mijksDr eqdnesa dh udyksa ds ek/;e ls ;g Li"V :i ls lkfcr gksrk gS fd ;fn jkeHktu izfoknh foofnr edku dk fdjk;snkj u gksrk rks og fdjk;s dh /kujkf'k tek djus ds fy;s U;k;ky; esa izkFkZuk i= u nsrk /kkjk 37 ds vUrxZr mijksDr vkns'k vfUre gks pqds gSA bl fcUnq ij cgl djs gq;s izfroknh ds fo}ku vf/koDrk us dgk fd ;g lkjh dk;Zokgh oknh ds }kjk dh x;h gS ysfdu oknh ds }kjk dkxt la[;k 50x odkyrukek Hkh nkf[ky fd;k x;k gS] bl odkyruke ds ifj'khyu ls Li"V gksrk gS fd jke Hktu fuxe us Jh tuknZu izlkn [kjs vkSj Jh v'kksd dqekj fuxe ,MoksdsV mijksDr eqdnesa esa odhy fu;qDr fd;k FkkA esjh n`f"V esa izfroknh jkeHktu dk fookfnr edku dk vius dks ekfyd dguk lkfcr ugha gksrk gSA oknh ds }kjk gkml VSDl fpV~Bh dh udy dkxt la[;k 51x yxk;r 54 nkf[ky dh x;h gS ftlds ifj'khyu ls Li"V gksrk gS fd t;nsoh vkSj ujk;unsoh edku dh ekfydhu jgh gSaA dkxt la[;k 53 x ds ek/;;e ls lkfcr gksrk gS fd oknh us uxjikfydk ifj"kn ckank esa VSDl Hkh vnk fd;k gS] bl izdkj tks leLr vfHkys[k oknh dh rjQ ls nkf[ky fd;s x;s gSa muds vk/kkj ij rqyukRed n`f"V ls izfroknh jkeHktu fdjk;snkj lkfcr gksrk gS vkSj oknh tfj;s jftLVMZ cSukek fookfnr edku dks lu~ 1982 esa [kjhn pqdk gSA**

    After discussing the evidence the trial court decided issue no. 1 in favour of the respondent holding that: -

bl izdkj izfroknh vkSj mlds xokgsa esa ikjLifjd fojks/kkHkkl gSA nksuksa xokgku us izfroknh dks gh fookfnr edku dk ekfyd crk;k gS ysfdu blds leFkZu esa dksbZ larks"ktud lk[; miyC/k ugha gS] tcfd oknh dh rjQ ls iathd`r cSukesa dh udysa nkf[ky dh x;h gSa vkSj izfroknh us fdjk;k fu;a=.k ,oa vkoaVu vf/kdkjh ds le{k Lo;a dks fdjk;snkj ds :i esa is'k fd;k gS mldh udysa Hkh nkf[ky dh x;h gSaA izfroknh fookfnr edku esa fdjk;snkj ds :i esa gh vkckn jgk gSaA izfroknh us orZeku okn esa vlQy <ax ls vius dk edku ekfyd lkfcr djus dh dksf'k'k dh gSA esjh n`f"V esa oknh edku dk ekfyd gS vkSj izfroknh mldk fdjk;snkj gS] rn~uqlkj fu/kkZjd foUnq la[;k 1 oknh ds i{k esa izfroknh ds fo:) fu.khZr fd;k tkrk gSA

In so far as Issue no. 2 is concerned, the trial court held that the notice sent to the petitioner by the respondent-landlord was legal.  

As regards Issue No. 3 relating to bona fide need and comparative hardship the trial court found that the petitioner is owner of a three storied building in which he is living and that he is not running any Mahavidyalaya in the house in dispute but is keeping the same locked for keeping it in his possession and that the house of the petitioner is situated just nearby the disputed house. The court also held that the petitioner has failed to prove that there was any other house of the respondent in Bazar Katra in Banda city. The relevant extract of findings of the trial court on this issue are: -

esjh n`f"V esa vxj edku esa egkfo|ky; [kqyk gksrk rks mlds leFkZu esa nLrkost izfroknh }kjk nkf[ky fd;s tk ldrs Fks ysfdu dksbZ nLrkost izfroknh }kjk nkf[ky ugha fd;s x;s gSa] ,slh fLFkfr esa ek= ;g lkfcr gksrk gS fd izfroknh ek= edku esa dkfct jgus ds mn~ns'; ls mls ?ksjs gq;s gSA oknh ds ikl rhu fookfgrk iqf=;ka gS tks ,e0,0] ch-,0 dh Nk=k gSaA oknh Lo;a O;kikj dj vf/kdkjh ds in ls fjVk;j gqvk gS bl izdkj oknh dks vkSj mlds iq= dks odkyr ds O;olk; gsrq edku dh vko';drk gSA esjh n`f"V esa oknh dh vko';;drk ln~Hkkfod gSA ;gka ij ;g Hkh mYys[kuh; gS fd tc izfroknh us Lo;a dks fookfnr edku dk ekfyd dguk pkyw dj fn;k vkSj og ekfyd lkfcr ugha gksrk gS ,slh fLFkfr esa izfroknh dh vko';drk dks ns[kk gh ugha tkuk pkfg;sA leLr ifjfLFkfr;ksa dks ns[krs gq, eSa bl fu"d"kZ ij igqaprk gwW fd oknh dks edku dh ln~Hkkfod vko';drk gS] rn~uqlkj fu/kkZjd fcUnq la[;k&3 oknh ds i{k esa izfroknh ds fo:) fu.khZr fd;k tkrk gSA

       After deciding the aforesaid three issues vide judgment and oroder dated 18.11.2006 the trial court awarded the relief to the respondent- landlord by decreeing the suit with costs and further directed the  petitioner to vacate the house and hand over its vacant possession to the respondent- landlord within a period of two months as under: -

vuqrks"k

oknh us fookfnr edku dks [kkyh djk;s tkus dh ekax dh gS vkSj izkFkZuk dh gS fd izfroknh dks fookfnr edku ls csn[ky fd;k tk;A oknh us orZeku okn uksfVl nsus ds mijkar fu;ekuqlkj nkf[ky fd;k gS vkSj lk{; ds ek/;e ls lkfcr fd;k gS fd og edku dk ekfyd gSA izfroknh t;nsoh vkSj uj;.kh nsoh dks fdjk;k nsrkjgk gS vkSj oknh us t;nsoh ujk;.kh nsoh ls edku [kjhn fy;k gSA oknh dks edku dh vfr vko';drk gS] fygktk oknh dk okn lO;; fMxzh fd;s tkus ;ksX; gSA

vkns'k

oknh dk okn lO;; fMdzh fd;k tkrk gSA rFkk fookfnr edku ls izfroknh dks csn[ky fd;k tkrk gS vkSj vknsf'kr fd;k tkrk gS fd izfroknh nks eghus ds vUnj fookfnr edku oknh gseUr dqekj fuxe dks [kkyh dj dCtkn[ky ns nsosA fookfnr edku ds iwjc&ljdkjh dqfy;k tks laxr uked lFky dh vksj tkrh gS] if'pe & edku fo'oukF dkNh ejgwe o gydw dgkj ftlesa gXxw mQZ f'ko izlkn dgkj jgrk gS rFkk egjkt cgknqj fuxe ejgwe dk edku gS] mRrj&cM+h ukyh ckngw dcZyk jksM ,oa nf{k.k nhoky edku QqYyw oYn jke fd'kqu o jke izlkn dgkj gSA

fnukad % 18-11-2006                                g0 viBuh;

                                              ¼txnh'k dqekj½

                              y?kqokn U;k;k/kh'k@flfoy tt ¼lh-Mh-½

                                                   ckankA**

  Aggrieved by the aforesaid findings the petitioner filed Rent Appeal  No. 3/2006, Ram Bhajan Nigam S/o Shiv Balak Ram Vs Hemant Kumar Nigam S/o Rameshwar Prasad Nigam, Retd. Sales Tax Officer.

    The lower appellate court also dismissed the appeal of the petitioner by detailed reasoned and cogent order holding that there is no illegality or infirmity in the conclusion drawn by the Prescribed Authority.

    The contention of the learned counsel for the petitioner before this Court is that he is the landlord and the courts below have committed an illegality in granting the relief to the plaintiff. respondent-landlord in the writ petition. The learned counsel for the petitioner also relied upon the decision rendered in Sukha Vs Vth Additional District Judge, Aligarh and others, 1989 (1) A.R.C. 349, wherein it is held that the release application was not maintainable on the ground that no evidence was produced to show that there existed relationship of landlord and tenant.

In the instant case the opposite party claimed himself that he was the owner and not tenant and both the parties had filed evidence showing their title.      

He has further relied upon paragraphs 6, 7 and 8 of the judgment of this Court rendered in D.S.Victor Vs The District Judge, Bareilly and others, 1978 A.R.C. 413, wherein the question of title was in dispute. The High Court in the aforesaid judgment has held that the release application was contested by the tenant on the ground of title as owner reposing the title in himself which was refused by the tenant on the ground that the agreement of sale was executed in his favour. The court below held that there being no evidence of the appellant receiving the rent from the tenant the documents to substantiate the claims and counter claims filed before the Prescribed Authority and lower appellate authority cannot decide the claim of title. Paragraphs 6, 7 and 8 of the decision relied upon by the learned counsel for the petitioner are as under: -

    "6. The sole question that arose for consideration before the court below and still arises for decision before me is whether a question of title ownership of a property could be gone into in the proceedings under Section 21 of U.P. Act No. 13 of 1972. There is nothing in the Act which deprives a court, dealing with an application under Section 21 to decide a question of  title, when raised. However, it appears to me that a court dealing with an application under Section 21 of U.P. Act 13 of 1972 being a court of limited jurisdiction did not have the jurisdiction or authority to decide a complicated and intricate question of title if the same arises for decision before him. If a question of title is decided incidently for the purposes of deciding the chief point involved, there can be no objection to such a decision but whereas here, the substantial object of the respondent 2 was to get a decision of her title through the application filed under Section 21 of U.P. Act No. 13 of 1972, the same has to be objected to and cannot be permitted. Admittedly the respondent 2 never realised any rent from the petitioner. She could not file any document which could establish a direct relationship of landlord and tenant between herself and the petitioner. Apart from the direct evidence, no other evidence could be brought on the record showing the admission of the petitioner of her title. To the contrary the evidence brought showed that the petitioner had been paying rent to Angelo. The petitioner also field an agreement executed by Angelo to sell the property to him. The genuineness of the partition deed filed by respondent 2 under which she claimed title had also been disputed by the petitioner. In the background of all these facts, it was not a case where a court dealing with an application under Section 21 could decide the question of title. A Prescribed Authority appointed for the purpose of deciding an application 21 as well as an appellate court to which an appeal is filed against such a decision are not in a position to make a thorough and full inquiry of the disputed question of title.  

7. As I may not be understood as saying that in no case the question of title can be decided by an authority dealing with an application under section 21, I wish to make it clear that this is a question the decision of which has to differer from case to case. It is not possible to lay down any criterion exhaustively which has to be taken into consideration, while deciding this question. It may, however, be mentioned that where an authority finds that the question of title of the landlord has been disputed by a tenant with an ulterior motive for the purpose of delaying the disposal, the Prescribed Authority would certainty be entitled to investigate into title and decide it. In such a case the question of title could be said to have coincidently arisen for decision. Similarly, where a dispute of title raised by a tenant appears to be frivolous, the Prescribed Authority would be fully competent to decide the same. A plea is said to be frivolous, where it appears from bare inspection to lacking in legal sufficiency, and where in view of the facts pleaded it does not present a plausible defence. A plea is also said to be frivolous, where it is interposed for mere purpose of delay or to embrass the opponent. In such a case, it is so clearly and palpably bad as to require any argument. Similarly, a dispute of title which is sham can also be investigated. A sham plea is good on its face but false in fact. It may by all appearances constitute a direct defence; but is a pretence because false and because not pleaded in good faith. All these things have been said by me only by way of illustration.

  8.  Applying the law to the facts of the present case, it appears to that the question of title raised in this case was of such a complicated and difficult nature that its decision could not have been made by Prescribed Authority. The petitioner did not only dispute the title of respondent 2 but also claimed himself to be the owner. A large number of documents were filed by the parties. For the proper trial and complete adjudication of the said controversy, it was necessary that the parties should have been afforded full opportunity by means of a regular suit. This being so, the application filed by respondent no. 2 was liable to be rejected on this ground. "    

  Admittedly in the instant the petitioner has failed to prove his title before the courts below. As regards the question that he has not ever tendered the rent to the respondent is concerned, suffice is to say that both the courts below have found on the basis of certified copy of the judgmentMisc. Case Nos. 1/70/84, 30/70/83 and 24/70/01 between the parties that the petitioner had tendered rent and on refusal of it filed application for deposit of the same in the court. The courts below also found that not only the petitioner had acknowledged the respondent as his landlord but it has also been held in that case that the petitioner was tenant at the rate of Rs. 4/- per month.

    It appears from the record that the petitioner has his own palatial building near the house in dispute and he just wants to hold over the house in dispute to harass the respondent-landlord merely because the rent which he is paying is too low, i.e., Rs. 4/- per month and wants to extract premium for vacating the house in dispute. It has also been found by the courts below that the petitioner has also failed to prove that there is any other house of the respondent at Bazar Katra Banda. Per contra the courts below have given a positive finding that the petitioner himself has his own palatial accommodation consisting of 11 rooms which is used by him for running an unregistered college in the name Kiran Mahavidyalaya and also for his own residential purpose.

The ratio decided in paragraphs 6, 7 and 8 of the decision rendered by this Court in  D.S.Victor (supra) is that there is nothing in the Act which deprives a court dealing with an application under Section 21 to decide a question of title when raised. However, since it has limited jurisdiction it can not decide the question of title where complicated and intricate questions of title are involved. The court can as an incidental question consider the question of title if the same  arises before it for deciding the chief points involved in the case.

In the aforesaid case of D.S.Victor (supra) the petitioner could not file any document which could establish a direct relationship of landlord and tenant between herself and the petitioner, whereas in the instant case there is  ample evidence in the form of certified copies of the judgments rendered by this Court wherein the petitioner admits himself to be a tenant.

It may be noted that the court in the aforesaid case cited by the learned counsel for the petitioner has made it clear that the question whether title can be decided by the courts below is a question which differs from case to case and no hard and fast rule can be adopted by the courts below in this regard. The case of D.S.Victor (supra), therefore, does not support the case of the petitioner at all, rather it supports the case of the landlord as it provides that where an authority finds that the question of title of the landlord has been disputed by a tenant with an ulterior motive or where a dispute of title raised by a tenant is frivolous or the dispute of title raised is a sham, the Prescribed Authority is entitled to investigate the question of  title and decide it.

The instant case was not a case for deciding the title of the landlord in which the question of landlord and tenant has arisen to be decided incidently for decision of the main points involved in this case. There being no serious and complicated question for decision of title involved in the case, as such  the courts below have rightly proceeded in the case. In that case the tenant had raised objection reposing the title in himself and refuting the allegations of the application under Section 21 on the ground that an agreement of sale was executed in his favour, i.e., it was a case where title was being claimed by the tenant on the basis of an agreement of sale.

Similarly the case of Sukha (supra) relied upon by the learned counsel for the petitioner does not help him as that case is a case of no evidence with regard to the claim of the petitioner that he was a landlord, whereas in the instant case as stated above the evidence and the pleadings taken by the petitioner appears to be frivolous and sham taken with ulterior motive. Therefore the decisions cited by the learned counsel for the petitioner are concerned they do not apply to this case as stated above in view of the decisions cited above, as such  the dispute arising in the court on the relationship of landlord and tenant which incidentally in this case can be decided as one of the issues.      

  In view of the concurrent findings of facts of the courts below which are based upon appreciation of evidence on record and admission of the petitioner that he is tenant in the house in dispute the petition is liable to be dismissed. In so far as

  In my opinion the courts below have incidently delved upon the question of title in this case for deciding the main issue and have not decided the question of title as in a suit for title for the obvious reason that the petitioner had failed to establish any case regarding his title. He has admitted himself to be a tenant which is evident from the record of the case. For this reason too the contention of the counsel based on aforesaid decisions has no force. He cannot be granted any relief for having denied the title of the landlord.

For the reasons stated above, the petition is dismissed with costs.

    The learned counsel for the petitioner at this stage states that he may be granted some time to vacate the house in dispute.

In view of the findings of the courts below that the petitioner is not using the house in dispute but is living in his own house adjacent to the house in dispute, a week's time is granted to him for shifting his material effects, if any.

Since it is a frivolous petition, deterrent and exemplary costs is liable to be imposed upon the petitioner in view of the Hon'ble Suprme Court decision rendered in Salem Advocate Bar Association, Tamil Nadu Vs Union of India, A.I.R. 2005 S.C. 3353. In the facts and circumstances of the case Rs. 5000/-  is imposed as compensation upon the petitioner.

   Dated: 26.7.2007

   Rpk/


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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