Shri Narayan Shukla, J.
Heard Mr.ShafiqMirza, learned counsel for the petitioner as well as Mr.Mohd.Arif Khan, learned Senior Advocate assisted by Mr.AlokKirtiMisra, learned counsel for the respondent No.3.
The petitioner has challenged the order dated 17th of January, 2012, passed by the District Judge, Sultanpur in Rent Appeal No.5 of 2008, whereby the petitioner''s appeal against the judgment and order dated 16th of September, 2008, passed by the Prescribed Authority, has been dismissed with the direction to the appellant to vacate the shop and basement situated below of it within a period of two months with the observation that in default, the land lady may evict him with the help of police.
The main grounds of attack are that the court below has failed to appreciate the subsequent events, which has changed the petitioner''s status. It is stated that in changed circumstances, the petitioner has attained the status of owner of the shop in dispute as he purchased the same from Shobha Devi, widow of Mahavir, one of the sons of RadheyShyam, who received the ownership of the shop in dispute on the basis of sale deed executed in his favour. It is further stated that the petitioner''s name has already been mutated in the record of the Municipality and till date the said sale deed has not been challenged by any one. After attaining the status of owner, the petitioner has also instituted a suit for partition being case No.232 of 2010, which is pending consideration, therefore, it is stated that, till the portion of respective share of the parties is demarcated under the order of the said Suit, the petitioner cannot be asked to vacate the shop in dispute.
He further states that so far as the family settlement reached between the parties is concerned, that is not admissible in evidence in view of Section 17 (1)(b) of the Registration Act, 1908. He also claims himself as tenant of RadheyShyam, whose property has been divided in to his four sons, thus according to him, his tenancy does not confine to the particular share of Gujrati Devi i.e. widow of RadheyShyam, who claims herself the land lady.
In reply the learned counsel for the respondents submitted that the petitioner himself has admitted the tenancy of respondent No.3. To support his submission, he drew attention of this court towards paragraph 1 of the written statement filed in case No.156/05 of the petitioner, in which he has accepted the respondent No.3 the land lady of the shop. He also drew attention of this court towards the memorandum of family settlement, which verifies the shares as well as the possession of the respective parties in the house and shop. Paragraph ''Da'' speaks that basement of the portion is assigned to Gujrati Devi of which Sushil Kumar (Petitioner) is tenant. Mr.Mahavir Prasad, who executed the sale deed to the petitioner, has been signatory of the said settlement. Under the strength of the sale deed, the petitioner has stepped into the shoes of Mahavir Prasad, therefore, at this stage it is not open for him to resile from the admission of Mahavir Prasad. He further states that once the shop has been part of the house, it is under the ownership and occupancy of different owners, the sale of one part of which does not determine the tenancy, more so, when the seller was not in occupancy of the shop over which the petitioner claims his tenancy. In support of his submission he cited the decision of Hon''ble Supreme Court rendered in the case of T.Lakshmipathi and others versus P.Nithyananda Reddy and others, reported in AIR 2003 Supreme Court 2427.
He further states that so far as the validity of memorandum of family settlement is concerned, that is a settlement between the persons, who are vested with the right, title and interest in the property by virtue of being sons of RadheyShyamSoni, who purchased the same through the registered deed and since it does not create or assign any new right, title or interest in that, the registration of the same is not required under Section 17(1)(b) of the Registration Act, 1908. Thus, he submits that once the petitioner has accepted the respondent No.3 as landlady, on the basis of sale deed executed in his favour, for the share of one of the owners, he has no right to claim right or possession over the shop in question, which has been in occupancy of other cosharer i.e. Gujrati Devi.
After hearing the learned counsels for the parties as well as upon perusal of the record, I find that the relationship of tenancy and landlady between the petitioner and respondent No.3 is admitted. The memorandum of family settlement, of which Mahavir Prasad, who executed the sale deed in favour of the petitioner, has been signatory, certifies the assignment of respondent No.3 over the shop in dispute. So far as the pendency of suit for partition is concerned, the shop in dispute is not the subject matter, but it is the whole property, therefore, the proceeding of the partition has no effect over the present proceeding. The need of the respondents has already been discussed by both the courts below and with the concurrent findings the same has been established, which does not require interference by this court. Therefore, I do not find merit in the writ petition.
The petitioner has raised one more objection that the court of appeal has issued direction to the petitioner to vacate the shop within a period of two months. In default land lady may evict him with the help of police, whereas under Section 23 of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, it is the Prescribed Authority, who has been authorized to adopt the proceeding of eviction. Section 23 is reproduced hereunder:
"23.Enforcement of eviction order.(1) The prescribed authority may use or cause to be used such force as may be necessary for evicting any tenant against whom an order is made under Section 21 or on appeal under Section 22, as the case may be, or against any other person found in actual occupation, and for putting the landlord into possession.
(2) Every order of the prescribed authority in proceedings under this section shall be final."
As is evident from the aforesaid provisions, it is obvious that the Prescribed Authority has been authorized to use the force for evicting any tenant against whom an order is made under Section 21 or on an appeal under Section 22 and for putting the landlord in to possession.
The import of the aforesaid provision is that if the tenant does not follow the order passed by the prescribed authority or the court of appeal, the prescribed authority may use force the evict him. Thus, I am of the view that Section 23 of the Act, does not come in the way of orders passed by the courts below, rather it insures the implementation of order passed by them and certainly on to event of failure of the petitioner to vacate the shop, the role of prescribed authority under Section 23 of the Act shall come into play.
With these observations the writ petition is dismissed.
