Rakesh Tiwari, J.@mdashHeard learned Counsel for the parties and perused the record.
2. The petitioner has filed this writ petition praying for a writ of certiorari quashing the impugned judgment and order dated 3122005 passed by the Additional District Judge, Court No. 7, Saharanpur allowing the Rent Control Appeal No. 34 of 1998 filed by the respondents against the judgment and order passed by the Prescribed Authority, Saharanpur dated 16101998 rejecting the release application filed by the respondents.
3. The facts giving rise to this writ petition, in brief, are that the disputed shop No. 5/461 situated in Mohalla Hiran Maran (Maniharan) was given on rent to the petitioner by Sri Abdul Rehman, husband of Smt. Noor Ilahi (respondent No. 1). After the death of Sri Abdul Rehman his widow Smt. Noor Ilahi, respondent No. 1 became the landlady of the property and realized rent from the petitioner.
4. In the year 1997 a release application under Section 21(1) (a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act) was filed by Smt. Noor Ilahi alongwith Sri Mohd. Saleem (respondent No. 2), the son of brotherinlaw of late Abdul Rehman who is said to have inherited the tenement by Hiba executed by the landlord Abdul Rehman in his favour.
5. The petitionertenant contested the release application by filing a written statement stating that after the death of Abdul Rehman the rent was always realized by his widow Smt. Noor Ilahi at the rate of Rs. 200/ p.m. It was denied by him that the shop was transferred in favour of respondent No. 2 also by deceased landlord Abdul Rehman by executing a Hibanama for want of knowledge. The petitioner claimed to have never been informed about any Hibanama alleged to have been executed on 15121976 by the deceased Abdul Rehman, the landlord, in respect of his property in favour of respondent Nos. 1 and 2.
6. The bona fide need of the respondents was also denied by the petitionertenant on the ground that the Baithak (drawing room) of the landlords could be used as a shop by them.
7. Paragraphs 3 and 4 of the written statements which are relevant are quoted below :
�(3) Prarthana Patra vimochan ke prastar 32 ke kathan ki koi vyaktigat jankari vipakshi ko nahin hai. Atah vyaktigat jankari ke abhav me in manya nahin hai. Rasidad kiraya ab tak bhi tanha Srimati Noor Ilahi awedika number 1, ke hit mein kaiati rahi hai parantu vipakshi ka koi mansha swamitva se inkar ka nahin hai tathakathith Hibename ki koi vyaktigat jankari vipakshi ko nahin hai.
(4) Prarthana Patra vimochan ke prastar 4 ke kathan ke uttar mein nivedan kiya jata hai kiraya tanha awedika number 1, Srimati Noor Ilahi ke hit mein katati rahi hai aur kathit Hibenama ka oi vyaktigat gyan vipakshi ko nahin hai. Vipakshi prashangat sampatti ka kirayedar hai aur kiraye ki dar 200/ rupaye pratimas hai, manya hai.�
8. The release application was rejected by the Prescribed Authority/Judge Small Cause Court, Saharanpur by his order and judgment dated 16101998 (Annexure7 to the writ petition). However, the appeal filed by the respondentlandlords under Section 22 of the Act has been allowed by order and judgment dated 3122005 by the Additional District Judge, Court No. 7, Saharanpur.
9. Learned Counsel for the petitionertenant contends that Sri Mohd. Saleem is not a member of the family of the deceased landlord Abdul Rehman and his widow Smt. Noor Ilahi. He is admittedly the son of brotherinlaw of late Abdul Rehman and does not come within the purview of Section 3 (g) of the Act defining ''family''. Section 3 (g) of the Act defines ''family'' as follow :
�3 (g) �family�, in relation to a landlord or tenant of a building, means, his or her
(i) spouse,
(ii) male lineal descendants,
(iii) such parents, grandparents and any unmarried or widowed or divorced or judicially separated daughter or daughter of a male lineal descendant, as may have been normally, residing with him or her, and includes in relation to a landlord, any female having a legal right of residence in that building.�
10. It is submitted by the learned Counsel for the petitioner that under Section 21 of the Act, a landlord or a landlady can seek release of the tenanted premises for his or her own need or for the need of his or her family, therefore, the release application by a person who is not the member of the family of the landlord or landlady and for his or her alleged need is not maintainable.
11. It is further stated that the respondents being conscious of the restrictions placed by law for release of a tenanted premises in favour of a person who is not the member of the family of the landlord/landlady came up with a plea that Abdul Rehman, before his death, gifted the property to his widow (respondent No. 1) as well as to respondent No. 2. A perusal of the release application will reveal that applicant No. 2 is the son of the brotherinlaw of the deceased Abdul Rehman. It is claimed in paragraphs 2 and 3 of the release application that respondent No. 2 was brought up by the deceased landlord like his own son. paragraphs 2 and 3 of the release application are reproduced below : � �
�(2) Yah ki awedak number 2 Shri Abdul Rehman uprokta ke sage sale ka putra hai. Jisko Shri Abdul Rehman uprokta ne bachpan se hi apne pass bataur putra rakh liya hai. Awedak number 1 va Shri Abdul Rehman uprokta number 2 ki padhai likhai parvarish va shadi ka kharcha putra swyam kiya.
(3) Yah ki Shri Abdul Rehman ne apne marne se purva vivadita sampatti maya deegar sampatti bajriye Hibenama dinank 151276 awedakgan ke hit mein hibe kar di aur awedakgan ne ukta hibenama mein varjit sampatti par kabja kar liya aur tarikh majkoor se vipakshi, awedakgan ka kiraye mach va maah ho gaya.�
12. It is urged that the petitioner who is a tenant could not have pleaded anything more than what has been said in paragraphs 3 and 4 of the written statement. In case a stranger comes forward claiming himself as a transferee from the previous owner and landlord, then the tenant can only put him to strict proof of the said assertions before accepting him as the owner and the landlord. He cannot make a categorical denial of his alleged claim as it would amount to denying his title, in case the stranger ultimately succeeds in proving his title. At the same time, in case a tenant puts a subsequent transferee claiming himself to be owner and landlord to prove his title before he is accepted as the landlord, then it is the burden of the stranger to prove himself as owner and landlord before seeking release of the premises for his bona fide need.
13. The learned Counsel for the petitionertenant vehemently argued that under Section 21 of the Act a building under tenancy can be released in favour of a landlord in case it is proved that it is required by him bona fide. The legislature has intentionally used the word bona fide which means in good faith, without fraud or deception and honestly, as distinguished from bad faith. Thus, if the alleged need is motivated, with intent to deceive, then it becomes a device to evict the tenant and cannot be said to be bona fide.
14. The learned Counsel for the petitionertenant then submits that the lower appellate Court has not recorded any finding to the effect that Mohd. Saleem (respondent No. 2) had succeeded in proving the alleged gift of the disputed property in his favour. In the absence of such finding Mohd. Saleem cannot be said to be the owner and landlord of the disputed shop, hence the release application at his instance was not maintainable. In this view of the matter, he submits that the matter may be remitted to the lower appellate Court for recording a specific finding on the question of ownership/landlord ship of Mohd. Saleem (respondent No. 2) over the shop in dispute.
15. Per contra, the learned Counsel for the respondent landlords contends that the Prescribed Authority without applying his mind to the relevant facts and laws applicable in the case illegally dismissed the release application. The lower appellate Court after applying its mind to the relevant facts and circumstances of the case rightly found that the need of the respondent No. 2 for settling his two sons was genuine and bona fide and that comparative hardship is also in favour of landlords.
16. As far as payment of rent to respondent No. 1 is concerned the petitioner himself has admitted in his written statement that he did not want to deny the relationship of landlord and tenant. This fact of relationship of landlord and tenant is admitted by the petitioner in his reply dated 561997 to the notice dated 5 61997 appended as Annexures C.A. 1 and C.A. 2 to the counter affidavit. It was also brought on record in P.A. Case No. 2 of 1982 and Writ Petition No. Nil of 1988 appended as C.A. 3 and C.A. 4 to the counteraffidavit that both the respondents have been held to be owners of the property gifted by Abdul Rehman on 15121976. It is further submitted that the Baithak which is alleged by the petitioner as a shop is a Baithak alone and not a shop as is evident from the report of spot inspection made by IInd Additional District Judge, Saharanpur in R.C.A. No. 8 of 1982, Mohd. Hanif v. Mohd. Saleem, appended as Annexure C.A. 5 to the counteraffidavit.
17. It is further submitted that during the pendency of the appeal the relations between the respondents became strained and they mutually partitioned the property on 9121999 and in that mutual settlement the disputed shop fell in the share of respondent No. 2. A notice dated 1112000 was also served by respondent No. 1 to the petitioner that w.e.f. 9121999 the rent was to be paid to the respondent No. 2. The petitioner sent reply and paid rent in response to aforesaid notice to respondents. The replies sent by the petitioner and rent receipts issued by respondent No. 2 are appended as Annexures C.A. 6 to C.A. 17 to the counteraffidavit. The aforesaid mutual partition was confirmed by the decree in Suit No. 766 of 1999 appended as Annexure C.A. 18; as such it is wrong to allege by the petitioner that the decree was collusive. Further, the property transferred in favour of Sushil Kumar Saini by respondent No. 1 was residential one. The said property came in her share in partition and was converted into nonresidential after its sale, hence the respondents cannot be blamed.
18. The petitioner for the first time has, in the writ petition, alleged that the respondent was doing the business of hosiery in the shop vacated by Mohd. Hanif. No such plea was ever raised by the petitioner before the trial Court or lower appellate Court. The petitioner has in his possession a shop which the petitioner alleges to be a godown situated in Mohalla Dakotan (Ukotua) which is not situated in a residential area. The aforesaid shop according to the report of the Advocate Commissioner is situated hardly 20 yards away from the disputed shop. At the time of inspection of Advocate Commissioner the said shop was fitted with racks showing that business was being run there from also.
19. The landlordrespondent No. 2 has filed release application for settling his two sons who have become major. The Hon''ble Supreme Court as well as this Court has held that the landlord has every right to get the property released and settled every adult member of his family.
20. It is also submitted that the petitionertenant is in occupation of the shop in question for the last about 24 years. According to the Advocate Commissioner Report appended as Annexure C.A. 20 to the counteraffidavit there are several vacant shops available near the shop in question but the petitionertenant has given false statement that no vacant shop is available near the shop in question which disentitles the petitionertenant to get any relief from this Court.
21. It is further submitted that the Prescribed Authority has wrongly rejected the release application on the ground that both the sons of respondent No. 2 were minor at that time. The learned lower appellate Court rightly allowed the release application by recording a specific finding relying upon the decision rendered in 2002 A.L.R. 203, that if during pendency of appeal the sons become adult the Court must take notice of the fact for considering the bona fide need to settle them.
22. It is also submitted that the finding of fact recorded by the lower appellate Court cannot be assailed at this stage in view of the law laid down by Hon''ble Supreme Court in Munni Lal & Ors. v. Prescribed Authority & Ors., 1981 A.R.C. 470.
23. It is then further submitted that in view of the principle laid down in the case reported in J.T. 2004 (IV) Supreme Court 127, the writ Court under Article 226 cannot sit as an appellate Court.
24. In rebuttal the learned Counsel for the petitionertenant states that the Counsel for the respondents placed reliance on the notice given to the petitionertenant informing him about the fact that Mohd. Saleem had become his landlord; that all the notices relate to the period 1997 onwards, while the disputed shop was allegedly gifted in 1976; that there is absolutely no evidence of any notice being given by Abdul Rehman himself informing the petitioner about alleged gift and directing him to recognize Mohd. Saleem as owner and landlord of the property in dispute; that on the other hand it will be evident from the reply given by the petitioner to the notice of respondent No. 2 (Annexure C.A. 17) that he paid rent till 9121999 to Smt. Noor Ilahi exclusively; that thereafter, on receipt of notice he tendered rent by money order but this was without prejudice to his defence in the pending appeal; that the payment of any rent during pendency of appeal was without prejudice to the right of the petitioner in the pending appeal and cannot act as estoppels as sought to be argued by Counsel for the respondents and it was incumbent upon the lower appellate Court to have recorded a finding regarding respondent No. 2 being the owner and landlord on the basis of alleged Hiba without which the appeal could not have been allowed and that the need of the respondents was found to be mala fide by the Prescribed Authority, as such the release application was rightly rejected by it vide judgment and order dated 16101998 holding that the adjoining room which the respondents claim to be a Baithak is in fact a shop which is lying vacant.
25. It is further submitted by him in rebuttal that even assuming that respondent No. 2 is the owner and landlord and can seek release of the disputed shop, it was found by the Prescribed Authority that his alleged need is mala fide as otherwise he would not have kept the adjoining shop vacant. The mala fides on the part of the respondents according to him is proved to the hilt when during pendency of appeal they sold the vacant shop in their possession by executing a registered sale deed dated 1552000 in favour of Sushil Kumar Saini who opened a big showroom there in the name of M/s. Ashish Garments. The aforesaid facts are said to have been duly brought to the knowledge of the lower appellate Court by means of an application for additional evidence appended as Annexure 8 to the writ petition. The respondents in reply admitted that the vacant shop has been sold. However, they alleged that there were certain differences between them and they had partitioned the entire property and vacant shop had gone to the share of respondent No. 1 Smt. Noor Ilahi and the disputed shop to the lot of respondent No. 2 which fact has been recognized by a decree passed by Civil Court and is appended as Annexure C.A. 18 to the counter affidavit. The suit was decided in terms of collusive compromise between respondent Nos. 1 and 2.
26. It is contended that had the need of respondent No. 2 for settling his sons in business was bona fide, then he would have used the adjoining vacant shop for settling them in business. The release application was filed jointly in 1997 by both the respondents; hence there were no differences between them. It was only after the Prescribed Authority rejected the release application holding that the need of the respondents is mala fide that respondent Nos. 1 and 2 entered into a collusive partition and during the pendency of the appeal a collusive compromise decree was obtained and on the basis thereof the adjoining vacant shop was sold by respondent No. 1 claiming it to be her exclusive property. It is urged that in the aforesaid background, it can easily be inferred that the alleged partition was a sham transaction and a device to create artificial need for the disputed shop and thereby evict the petitionertenant. Respondent No. 2 who claims that his sons require the shop in dispute bona fide would never have agreed to the vacant shop coming to the lot of other cosharer for being sold. In fact, the plea of respondent No. 1 that the vacant shop was allotted to respondent No. 1 as she was in need of money cannot be believed.
27. The learned Counsel for the petitionertenant further contends that even the lower appellate Court has recorded a finding of fact that there was no financial difficulty with respondent No. 1 warranting sale of vacant shop during pendency of the appeal, but the lower appellate Court wrongly held that it cannot go beyond the decree passed in the partition suit between respondent Nos. 1 and 2 and to hold the decree as collusive. The learned Counsel has relied upon the Hon''ble Supreme Court decision rendered in S.K. Sattar v. Gunddappa (Paragraph 37), 1997 A.C.J. 69, wherein it has been held that
�It will, however, be open to the tenant to show that the partition was not bona fide transaction to overcome the rigors of Rent Control laws which protected eviction of the tenants except on specified grounds set out in the relevant status.�
28. Similar view has been taken by this Court in Raj Pal v. Special Judge, 1992 (2) ARC 640 (Paragraphs 12 and 13). wherein it has been held :
�(12) Now coming to the obvious question whether the need of the landlord is bona fide. It appears from the documents that Respondent No. 2 possessed a large number of properties, a suit No. 28 of 1975 was filed for partition in the Court of Civil Judge, Etah by Ratan Kumar, brother of Respondent No. 2 and his father in which it is alleged that they jointly owned a market known as Rajendra Market in which there are 38 shops and 8 Almirahs, there had been an oral partition between the parties in December, 1972. Therefore, the relief for declaration was sought that there has been a partition of the properties between the parties as given at the foot of the plaint. It appears that W.S. was filed by respondent No. 2, but he did not produce any evidence and it was a collusive suit, which was decreed on 2451975 by judgment Annexure 2 to the writ petition. The perusal of the judgment shows that there was no contest and the partition pleaded in the plaint was accepted and the Suit for declaration was decreed. Without any argument this shows that it was a collusive suit to show partition in such a manner so that the need of respondent No. 2 for a shop may be crested. It appears that intentionally the need was created as previously suit No. 57 for arrears of rent and possession was filed, which was dismissed and its appeal was also dismissed. These facts show that respondent No. 2 was making attempt for getting the shop vacated and manipulated the facts to create the need.
(13) The decree in the civil suit is definitely binding on the parties, but the same is not binding on the third party. The third party can always plead that the suit is collusive. No reason has been mentioned as to why such a partition was made in which no vacant shop or the business was given to respondent No. 2.�
29. He further relies upon yet another judgment of the Hon''ble Supreme Count reported in AIR 1982 S.C. 1213, wherein the tenant came up with a plea that the saledeed on the basis of which the persons seeking ejectment is in fact a paper transaction and a device to evict him and no finding was recorded by the Court on the said aspect, the matter was remitted back for recording such finding.
30. Thus, he contends that the compromise decree passed in the partition suit between respondent Nos. 1 and 2 may be binding on them but in eviction proceedings, it is open to the petitioner tenant to show that the alleged partition leading to. the compromise decree was a sham and fraudulent transaction and a device to evict the petitioner.
31. The learned Counsel for the petitionertenant next contends that a perusal of the judgment of the lower appellate Court will show that it had not approached the controversy in the correct perspective resulting in manifest error of law and on this ground as well the matter requires reconsideration by the lower appellate Court and that the argument of the learned Counsel for the respondents that the Advocate Commissioner''s report shows that the petitioner has an alternative shop is factually not correct. The vacant shops do not belong to the petitioner as it has only referred to certain vacant shops in the same market, but it has neither been the case of the respondents nor is there any finding that any of the shops belongs to the petitioner. Thus, the argument is wholly misconceived.
32. The learned Counsel for the petitionertenant lastly contends that the disputed shop is the only shop in possession of the petitionertenant. He has got two sons and their families are also dependent on him for their livelihood and the only source of their income is the shop in dispute. The petitioner has only got a godown in a narrow Gali on rent in residential area for storing goods in connection with business of hosiery being done from the disputed shop. The lower appellate Court without setting aside the reasoning given by the Prescribed Authority has wrongly held that a godown can be converted into a shop. The finding of the Prescribed Authority that the godown is situated in a residential area and is not fit to be used as a shop were not set aside by the lower appellate Court, as such the finding of the lower appellate Court in this regard is also perverse and cannot be sustained. There is another aspect of the matter. Since the lower appellate Court has failed to record any finding regarding respondent No. 2 being owner and landlord on the basis of alleged Hiba, therefore, in the absence of such finding the release application itself could not have been allowed. The question of the petitioner being in possession of a godown on rent or its conversion into a shop could be of some relevance only if it is held that respondent No. 2 is owner and landlord and his need is bona fide and not mala fide.
33. Admittedly the landlord died issueless after bequeathing all his property to his wife and the son of his brotherinlaw (respondent No. 2) whom he had brought up as his own son. Admittedly also the shop in dispute after partition fell in the share of respondent No. 2. The release application was filed by respondent No. I, wife of the original landlord and respondent No. 2. The lower appellate Court has given a categorical finding that about 12 shops were available to the petitionertenant in the vicinity of the shop in dispute besides which he has his own shop also. The landlordrespondent is doing his business in a tenanted godown in a Gali even though his own shop is in the tenancy of the petitioner.
34. The need of the landlord who is doing his business in a tenanted godown in a Gali can be said to be more pressing than that of the petitionertenant who is doing his business in the shop of the landlord in the main market and has not taken any shop on rent in spite of there being vacant shops available to him in the same market. It is not the case of the petitioner tenant that shops are not available to him. The landlord can take his shop for his business purpose. He cannot be compelled to do his business in a rented godown. The need of the landlord appears to be bona fide and genuine. The lower appellate Court has rightly come to the conclusion that the need of landlord is bona fide and genuine particularly in view of the fact that he has his own shop also.
35. In my opinion the petitioner has miserably failed to make out any case. On the other hand the landlord (respondent No. 2) has proved that he has bona fide need and comparative hardship is also in his favour.
36. There is no illegality or infirmity in the impugned order dated 3122005 warranting interference by this Court under Article 226 of the Constitution.
37. The writ petition is accordingly dismissed. No order as to costs.
