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A.N.Saran v. A.D.J. - WRIT - A No. 17438 of 1990  RD-AH 7377 (13 December 2005)
Civil Misc. Writ Petition No.17438 of 1990
Alok Nandan Saran Vs. Ist Additional District Judge, Moradabad and others
Heard learned counsel for the parties.
This is landlord's writ petition arising out of eviction/release proceedings initiated by him against tenant-respondent no.3 -Subhash Chand. Accommodation in dispute is a residential house/portion situate on 1st floor. According to the map - Annexure-9 to the writ petition accommodation in dispute consists of three rooms. According to the learned counsel for the tenant-respondent the third room is quite small and is being used and can be used only as store room. The rent is Rs.145/- per month. Release application was registered as P.A. case no.193 of 1985. Landlord pleaded that in an oral partition in between him, his father, mother and his brothers and sisters which was also recognized through decree of the civil court in O.S. no.108 of 1981 decided on 8.9.1981 by Civil Judge, Moradabad, the disputed accommodation and three shops on the ground floor came in the share of the petitioner. The said suit was virtually decided on the basis of compromise. On the ground floor and on the 1st floor there are about fifteen rooms. The regular suit was filed by the petitioner against his father, mother, six sisters and one brother.
The Prescribed authority held that the partition was not genuine and was brought into existence only to create ground of eviction. Ultimately Prescribed authority/Munsif, Moradabad rejected the release application through judgment and order dated 16.12.1988. Against the said judgment and order landlord-petitioner filed R.C. appeal no.4 of 1989. Ist A.D.J., Moradabad dismissed the appeal through judgment and order dated 7.3.1990 hence this writ petition.
Appellate court fully agreed with the Prescribed authority in respect of partition.
Learned counsel for the tenant-respondent informs that father and mother of the petitioner have died. This fact is not denied by the learned counsel for the landlord-petitioner.
Supreme Court in Sattar Mohd. Choudhari Vs. Gundappa Amabadas Bukate A.I.R. 1997 S.C. 998 has held that normally tenant cannot question the partition among landlords, however, in case building is covered by Rent Control Act then tenant can show that partition was affected only to create ground for his eviction.
Looking to the map of the entire accommodation (Annexure-9 to the writ petition) I have got no option but to agree with the finding of the courts below in respect of genuineness of partition.
However, it is made abundantly clear that the finding of the courts below as affirmed by me in respect of partition are meant only and only for the purpose of decision of the release application giving rise to the instant writ petition. It will not have any effect in respect of said partition among the co-sharers. Any of the co-sharers is at liberty to treat the partition in any manner he likes and pursue such legal remedy which may be available to him in respect thereof.
Accordingly, I do not find any merit in the writ petition hence it is dismissed.
I have held in Khursheeda Vs. A.D.J. 2004 (2) A.R.C. 64 and H.M.Kitchlu Vs. A.D.J.2004 (2) A.R.C. 652 that while granting relief against eviction to the tenant in respect of building covered by Rent Control Act or by maintaining the said relief already granted by the courts below, writ court is empowered to enhance the rent to a reasonable extent. The rent of Rs.145/- appears to be quite inadequate.
Accordingly, it is directed that with effect from January-2006 tenant-respondent no.3 shall pay rent to the landlord at the rate of Rs.650/- per month.
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