Section 21(1)(a) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the “Rent Act” for short) against the predecessor of the respondents herein seeking release of the premises =
when the appellant has established that he is the owner of the property and the same is required for his bonafide occupation, the release of the premises in any event, is
required to be made.
where there is no material available on record to indicate that the appellant has any other alternate premises, the bonafide need of the appellant as claimed will have to be accepted
and even though the respondents would face some hardship, as compared to the same the hardship to be faced by the appellant would be greater if the premises is not released to the appellant.
earlier litigation not bar for filing this petition
It is no doubt true that the father of the appellant had earlier filed an eviction suit against the
predecessor of the respondents and had failed in the proceedings arising thereunder. However, in a family settlement the property in question had fallen to the share of the appellant herein and in that circumstance the need for the premises was a fresh cause of action and in a circumstance where at the first instance there was no dispute to the fact that the father of the appellant, namely, Shri Dwarka Prasad Chaturvedi was the owner, there could not have been dispute to the fact that the appellant, who is his son had acquired ownership over the property in the family settlement.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6572 OF 2010
Santosh Chaturvedi .… Appellant(s)
Versus
Kailash Chandra & Anr. ….Respondent(s)
J U D G M E N T
A.S. Bopanna,J.
1. The appellant is before this Court assailing the order
dated 28.11.2007 passed by the High Court of Judicature
at Allahabad in Civil Misc. Writ Petition No.54204/2007.
Through the said order the High Court has allowed the Writ
Petition filed by the respondents herein and has set aside
the judgment and order dated 09.10.2007 passed by the
Special Judge, Mathura in P.A. Appeal No.1/2002 whereby
the order dated 03.08.2001 passed by the Prescribed
Page 1 of 20
Authority/ Upper Civil Judge (C.D.) is upheld. The
appellant is, therefore, aggrieved and is before this Court.
2. The appellant herein instituted the petition under
Section 21(1)(a) of U.P. Urban Buildings (Regulation of
Letting, Rent and Eviction) Act, 1972 (hereinafter referred
to as the “Rent Act” for short) against the predecessor of the
respondents herein seeking release of the premises bearing
No.83/72A, Tiwari Gali, Chhatta Bazar, Mathura. The suit
was registered as petition No.6/2000 before the Prescribed
Authority. The Prescribed Authority having taken into
consideration the rival contentions, on holding that the
appellant herein cannot claim ownership right over the
coparcenary property and in that light on arriving at the
conclusion that the appellant is not the landlord of the
respondents and also holding that the bonafide
requirement does not exist, had dismissed the petition
declining the release of the shop/premises in question.
3. The appellant claiming to be aggrieved by the same
had filed the appeal in P.A. Appeal No.1/2002 before the
Appellate Authority, namely, the Special Judge, Mathura.
The learned Appellate Judge on reappreciating the entire
Page 2 of 20
aspect of the matter had arrived at the conclusion that the
appellant herein had lawfully become the owner of the
property and in that circumstance considering the
predecessor of the respondents herein to be the tenant
under the appellant had further examined the matter with
regard to the bonafide requirement. Accordingly, the
learned Appellate Judge had arrived at the conclusion that
the case for release of the property is made out and had
accordingly allowed the appeal. While so considering the
matter, the learned Appellate Judge had also taken into
consideration that an alternative shop bearing No.83/9C
situated at Chhatta Bazar, Mathura measuring 2.5 ft. x 26
ft. standing in the name of the father of the appellant
which was vacant be allotted in favour of the respondents
so as to mitigate the hardship, if any. In that view, the
respondents were directed to vacate the premises in
question by taking possession of the said alternative shop
No.83/9C within one month.
4. The respondents herein claiming to be aggrieved by
the said order dated 09.10.2007 had filed the writ petition
under Article 227 of the Constitution of India before the
Page 3 of 20
High Court of Judicature at Allahabad in C.M.W.P.
No.54204/2007. The learned Single Judge has in fact
considered the matter in great detail, more particularly with
regard to the claim of ownership made by the appellant
herein and keeping in view the provisions contained in the
Hindu Succession Act, 1956 has arrived at the conclusion
that the appellant cannot be considered as a coparcener in
respect of the premises in question. Hence the learned
Single Judge has also taken a similar view as arrived at by
the Prescribed Authority/learned Upper Civil Judge and in
that light has reversed the judgment passed by the
Appellate Court. The appellant, therefore, claiming to be
aggrieved is before this Court in this appeal.
5. We have heard Mr. Rajiv Dutta, learned senior
advocate along with Mr. Vikas Singh Jangra, learned
advocate on behalf of the appellant, Ms. Purnima Bhat,
learned advocate on behalf of the respondents and perused
the appeal papers.
6. The learned senior advocate for the appellant would
contend that the authorities prescribed under the Rent Act
in issue had considered the matter and though divergent
Page 4 of 20
opinions were expressed, the Appellate Court had in fact
appreciated the matter in its correct perspective since in a
summary proceedings of the present nature the
relationship of landlord and tenant was sufficient to be
established which in fact had been established and it ought
not to have been considered like a title suit. The Prescribed
Authority has examined the ownership of the property as if
being considered in a partition suit or title suit so as to
arrive at its conclusion. It is no doubt true that the father
of the appellant had earlier filed an eviction suit against the
predecessor of the respondents and had failed in the
proceedings arising thereunder. However, in a family
settlement the property in question had fallen to the share
of the appellant herein and in that circumstance the need
for the premises was a fresh cause of action and in a
circumstance where at the first instance there was no
dispute to the fact that the father of the appellant, namely,
Shri Dwarka Prasad Chaturvedi was the owner, there could
not have been dispute to the fact that the appellant, who is
his son had acquired ownership over the property in the
family settlement. In that regard, it is contended by the
Page 5 of 20
learned senior advocate that when the learned Appellate
Judge which is a statutory authority under the Act had
arrived at the conclusion based on reappreciation of the
matter, the consideration as made by the High Court in a
writ petition under Article 227 of the Constitution, as if it
was in the nature of an appeal by reappreciating the entire
aspect is not justified. Hence, he contends that the
ownership as well as the bonafide requirement being
established, the appellant is entitled to succeed and secure
release of the suit schedule premises.
7. The learned advocate for the respondents, on the
other hand, would contend that the undisputed position is
that Shri Dwarka Prasad, the father of the appellant had
filed the petition under Section 21(1)(a) of the Rent Act for
release of the shop but the suit was dismissed by the
Prescribed Authority through the judgment dated
07.12.1979. The appeal against the same was dismissed
and the writ petition was also dismissed on 29.10.1999.
The father of the appellant having failed to succeed had
thereafter instituted a fresh proceeding through the
appellant who is his son, on 10.02.2000 by creating certain
Page 6 of 20
rights in favour of the appellant under an alleged
settlement dated 15.11.1999. The Memorandum of
Settlement dated 02.02.2000 was created for the said
purpose. It is her contention that the father of the
appellant had secured his share in the property prior to the
birth of the appellant and as such the property cannot be
considered as a coparcenary property whereunder the
appellant can claim any right as a coparcener and secure a
share. It is her contention that the Prescribed Authority as
also the High Court has considered this aspect and has
arrived at the conclusion in accordance with law which
does not call for interference. It is further contended that
the alternate shop indicated by the learned Appellate Judge
is not suitable for business purpose and, therefore, even in
that regard, apart from the bonafide of the appellant not
being established the respondents would be exposed to
greater hardship if the premises is ordered to be released.
Hence it is contended that the order impugned does not call
for interference.
8. In the background of the rival contentions, at the
outset, a perusal of the judgment in the case of Shalini
Page 7 of 20
Shyam Shetty & Anr. vs. Rajendra Shankar Patil
(2010) 8 SCC 329 relied upon by the learned senior
advocate for the appellant would be in order. This case
refers to the scope of consideration that could be made by
the High Court in a writ petition of the present nature.
However, keeping in view the fact that the High Court in
the instant case while examining the matter had two views
before it, one taken by the Prescribed Authority and the
other by the Appellate Authority which were divergent, one
of the views was required to be accepted by examining the
matter in that regard. Therefore, in the instant facts if that
aspect of the matter is taken note, since the Prescribed
Authority while examining the claim of the appellant herein
had adverted to the manner in which the claim of
ownership was made to the property and had held that the
appellant cannot be considered as a coparcener to be
accepted as the landlord, the High Court has also made a
consideration in that regard to accept such view. Hence in
the present circumstance instead of examining the extent of
jurisdiction, what is required to be noticed by this Court is
as to whether the nature of consideration as made by the
Page 8 of 20
Prescribed Authority as also the High Court is justified as
against the conclusion reached by the Appellate Authority
and which among the divergent opinions is to be accepted.
9. In order to examine that aspect of the matter a
perusal of the papers would indicate that at the first
instance the father of the appellant Shri Dwarka Prasad
had become the owner of the property under a partition
deed dated 09.07.1959. In that capacity, the predecessor
of the respondents was the tenant under him and the said
Shri Dwarka Prasad instituted an eviction petition against
the predecessor of the respondents on 10.03.1979. In the
said proceedings there was no dispute whatsoever with
regard to the ownership of the property or the jural
relationship of landlord and tenant between the father of
the appellant and the predecessor of the respondents. It is
no doubt true that the father of the appellant had failed in
the said proceedings and presently the Petition bearing
No.6/2000 was instituted by the appellant, who is his son,
claiming to be the owner of the property. The entire case as
put forth by the respondents to oppose the eviction suit is
with regard to the status of the property by contending that
Page 9 of 20
the joint family property had lost its character when the
partition had taken place between the father of the
appellant and the other members of the Hindu undivided
family on 09.07.1959. It is, therefore, contended that the
appellant being born in the year 1977 cannot be considered
as a coparcener. In that light it is contended that in a
circumstance where the appellant was not a coparcener, he
could not have taken a share in the property in the alleged
family settlement dated 15.11.1999 to claim as the owner
of the property. Such contention as urged by the
respondents herein has been accepted by the Prescribed
Authority as well as the learned Single Judge in the High
Court.
10. While referring to the said contentions it is necessary
to emphasise that the proceedings under the Rent Act is of
summary nature wherein the jural relationship of landlord
and tenant is to be taken note to the extent it is required
for considering such eviction petition and the rigour of
examining the ownership ought not to be indulged in the
manner as done in a title suit unless the respondent sets
up title to the very rented property which is adverse to that
Page 10 of 20
of the landlord. The Prescribed Authority at the initiation
of the proceedings appears to have been mindful of the
same and the said aspect would be clear if the very nature
of the issues that were framed for consideration by the
Prescribed Authority is taken note of, which read as
hereunder:
1. Whether the petitioner is having a just,
dire and bonafide need of the disputed shop for
running his business?
2. Whether the difficulties arising to the
petitioner is more compared to the difficulties
arising to the respondent if the disputed shop is
being released to the respondent.
However, the consideration has extended beyond the same
and therefore the question is as to whether it is justified in
the instant facts.
11. It is to be noticed that the ownership of the property
was not raised by the Prescribed Authority as an issue for
consideration but appropriately the issues that were
required under the Rent Act had been framed. Though that
was the position the requirement of proof noted and the
finding recorded by the Prescribed Authority with regard to
the nature and status of the property reads as hereunder:
“In the present case, the petitioner had to
prove that the disputed property was a
Page 11 of 20
coparcenary property of the Joint Hindu
Family. In this context, the petitioner had not
presented any record in which the disputed
property has been shown to be a coparcenary
property. The petitioner’s father himself had
filed the petition against the respondent in
the year 1979 for the release of the disputed
shop, in that also, he had declared himself to
be owner and landlord of the disputed
property and he has not given any such
statement that he himself in the capacity of
the Karta of the family was the owner of the
coparcenary property of the Hindu Joint
Family, is the owner and the landlord. Apart
from this, the perusal of the paper No.33g/22
(Colly) (Lagayat) 26, which is filed on behalf of
the respondent and is a copy of the
Assessment of Municipal Corporation, that
the disputed property was registered in the
name of Dwarka Prasad as the owner and in
this, Shyam Bihari has been shown as a
tenant in one shop and in the above record,
there is no such mention that Dwarka Prasad
had been the owner of the disputed property,
in the capacity of Karta of the family. Besides
this, the electricity bill paper No.33g/27 is in
the name of Dwarka Prasad. After going
through all the circumstance, I am of the
opinion that the petitioner has failed to prove
that the aforesaid disputed shop to be a
coparcenary property of the Joint Hindu
Family.”
12. The very consideration made by the Prescribed
Authority as noticed above is in the nature of the title being
examined in a suit for partition or for seeking declaration of
title. In fact the Prescribed Authority apart from the above
Page 12 of 20
conclusion has gone to the extent of indicating as if the
family settlement dated 15.11.1999 was not an equitable
partition and that the right claimed under the same cannot
be accepted as in the earlier round of litigation when Shri
Dwarka Prasad instituted the suit for eviction he had not
referred to the property as a coparcenary property but had
claimed absolute right over the same.
13. As against such conclusion, the learned Appellate
Judge has taken note that Shri Dwarka Prasad, the father
of the appellant had received the property under a
registered partition dated 09.07.1959 and in that light has
kept in view the legal position that a share received in the
coparcenary property would remain to be so for three
generations. Having observed so the learned Appellate
Judge has concluded in the following manner:
“On the basis of the above discussions, it is very
much clear and evident that the shop in
question was a coparcenary property in the
hands of Dwarka Prasad and the applicant
Santosh Chaturvedi being his son has got a
right, interest and share in the said coparcenary
property. Evidence available on the record
reveals that again family settlement occurred in
between Dwarka Prasad, his sons and mother
on 15.11.1999 and due to this family
settlement, family claims and dispute arose and
due to that cause there was repartition of the
Page 13 of 20
said property on 09.04.1997 between Santosh
Chaturvedi and his mother, father and brother
which was written memorandum on
02.02.2000. The written memorandum was
also filed on the records and one original suit
No.220/01 Santosh Chaturvedi vs. Dwarka
Prasad and Others was filed in context with the
partition of the property which was decided on
19.04.2001 on the basis of the compromise.
It is the argument of the learned counsel
for Shyam Bihari that all the averments are
concocted and have been framed just to give
colours to the matter, I am not satisfied with
this argument. Because, the evidence has been
filed on record that oral partition occurred on
15.11.1999 amongst Dwarka Prasad and his
sons Vijay and Santosh Chaturvedi and his
mother which was reduced in writing by a
memorandum of family settlement dated
02.02.2000 which was confirmed by the decree
of the original suit No.220/01. It is well settled
law on this point that the partition can be oral
and even written amongst the members of
Hindu families. The Hindu Law is very much
clear that if one coparcener expresses his desire
for the partition then legally the
partition/severance of the coparcenary property
takes its effect from the same day i.e. from the
day, coparcener had expressed his desire for the
partition.”
14. Though such detailed examination with regard to the
nature of the right to the property has been made in the
present case, we are of the opinion that the same was
wholly unnecessary in a summary proceeding of the
present nature when the tenant had not set up title to the
Page 14 of 20
premises in question. Irrespective of the fact as to whether
the property was the coparcenary property or had become
the absolute property of Shri Dwarka Prasad, the fact
remains that a family settlement dated 15.11.1999 was
entered into, to which Shri Dwarka Prasad who was the
owner was himself a party and had given a portion of his
property to his son. Pursuant to such oral family
settlement dated 15.11.1999 a Memorandum dated
02.02.2000 was also drawn up. Subsequent thereto the
appellant had also filed an Original Suit No.220/2001
seeking that the family settlement be declared as valid. The
said suit was disposed of on 19.04.2001 based on the
compromise.
15. Whether the share given by Shri Dwarka Prasad to
the appellant who is his son is justified or as to whether the
nature of the document under which the settlement was
recorded was as per requirement of law and valid are all
issues which can only be raised by any other member of
the family who would feel deprived and could have claimed
right over the such property. But in a circumstance where
Shri Dwarka Prasad who admittedly was the owner of the
Page 15 of 20
property had made a settlement in favour of the appellant
who is his son, the title thus acquired, in any event, cannot
be called in question by the person who is in occupation of
the premises as a tenant when Shri Dwarka Prasad who
admittedly was his landlord did not continue to claim to be
the landlord. If that be the position as rightly noticed by
the Appellate Authority, in view of the provision as
contained in Section 8 and Section 109 of Transfer of
Property Act, on transfer of the property by the owner the
tenant would automatically become the tenant of the
transferee. The further observation of the Appellate
Authority contained in its order to notice the relationship of
landlord and tenant is as hereunder;
“………………Even if, Shyam Bihari Lal has
denied himself to be the tenant of the
applicant, but here it is more important that
another suit was pending amongst the parties
for the eviction of tenant Shyam Bihari Lal
where Shyam Bihari Lal had accepted himself
to be the tenant of Santosh Chaturvedi and
had deposited the rent on the first date of
hearing of the suit and has also requested for
extending the benefit of Section 20(4) of Act
No.13 of 72, to him in that case.”
Page 16 of 20
It will indicate that the respondents at this juncture cannot
dispute the ownership of the appellant over the property or
the jural relationship.
16. The aspect which is also necessary to be taken note
is that the predecessor of the respondents late Shyam
Bihari had initiated a proceeding in Suit No.113/2011
(Annexure R12) before the Rent Control and Eviction
Officer, Mathura wherein he had sought for allotment of
alternate premises by indicating that the case bearing
No.6/2010 had been initiated by the appellant herein
against him. This would indicate that at the first instance,
the predecessor of the respondents did not have any issue
with regard to the ownership and was making an attempt
to secure an alternate premises but has only thereafter
raised the contention despite the relationship being
indisputable. Therefore, taking into consideration all these
aspects we are of the opinion that the view expressed by
the Appellate Court is appropriate in the present facts and
circumstance.
Page 17 of 20
17. Having arrived at the above conclusion we have
taken into consideration the nature of the claim made by
the appellant for release of the property. From the evidence
as tendered, the appellant had contended that he is doing
wholesale business of cloth for which he does not have
premises due to which he, his wife and two children are
experiencing hardship. In a circumstance where there is
no material available on record to indicate that the
appellant has any other alternate premises, the bonafide
need of the appellant as claimed will have to be accepted
and even though the respondents would face some
hardship, as compared to the same the hardship to be
faced by the appellant would be greater if the premises is
not released to the appellant. Though at this juncture the
learned counsel for the respondents would submit that the
alternate premises bearing No.83/9C Chhatta Bazar,
Mathura ordered to be made available to the respondents is
not suitable, it is in fact an order made by the Appellate
Court only in order to minimize the hardship. In that
circumstance, if the said premises is not suitable, it is open
to the respondents to not opt for the same. However, when
Page 18 of 20
the appellant has established that he is the owner of the
property and the same is required for his bonafide
occupation, the release of the premises in any event, is
required to be made.
18. In that view, for all the reasons stated above we are
of the opinion that the Prescribed Authority as well as the
learned Single Judge of the High Court were not justified in
their conclusion. Accordingly, the judgment dated
03.08.2001 passed in Petition No. 6/2000 and the
judgment dated 28.11.2007 passed in C.M.W.P.
No.54204/2007 are set aside. Consequently, the judgment
dated 09.10.2007 passed in P.A. Appeal No.1/2002 is
restored. The respondents are granted three months’ time
to vacate and handover the vacant possession of the
petition subject premises bearing No.83/72A situate in
Tiwari Gali, Chhatta Bazar, Mathura to the appellant
subject to an undertaking being filed before this Court
within a period of three weeks. It is made clear that if such
undertaking is not filed the benefit of the time granted to
vacate will not be available to the respondents. Further,
Page 19 of 20
the release of the premises in question shall be made
irrespective of opting for the alternate premises as ordered
by the Appellate Court.
19. The appeal is allowed accordingly. There shall be no
order as to costs. All pending applications shall stand
disposed of.
….……………………….J.
(R. BANUMATHI)
….……………………….J.
(A.S. BOPANNA)
….……………………….J.
(HRISHIKESH ROY)
New Delhi,
November 15, 2019
Page 20 of 20
when the appellant has established that he is the owner of the property and the same is required for his bonafide occupation, the release of the premises in any event, is
required to be made.
where there is no material available on record to indicate that the appellant has any other alternate premises, the bonafide need of the appellant as claimed will have to be accepted
and even though the respondents would face some hardship, as compared to the same the hardship to be faced by the appellant would be greater if the premises is not released to the appellant.
earlier litigation not bar for filing this petition
It is no doubt true that the father of the appellant had earlier filed an eviction suit against the
predecessor of the respondents and had failed in the proceedings arising thereunder. However, in a family settlement the property in question had fallen to the share of the appellant herein and in that circumstance the need for the premises was a fresh cause of action and in a circumstance where at the first instance there was no dispute to the fact that the father of the appellant, namely, Shri Dwarka Prasad Chaturvedi was the owner, there could not have been dispute to the fact that the appellant, who is his son had acquired ownership over the property in the family settlement.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6572 OF 2010
Santosh Chaturvedi .… Appellant(s)
Versus
Kailash Chandra & Anr. ….Respondent(s)
J U D G M E N T
A.S. Bopanna,J.
1. The appellant is before this Court assailing the order
dated 28.11.2007 passed by the High Court of Judicature
at Allahabad in Civil Misc. Writ Petition No.54204/2007.
Through the said order the High Court has allowed the Writ
Petition filed by the respondents herein and has set aside
the judgment and order dated 09.10.2007 passed by the
Special Judge, Mathura in P.A. Appeal No.1/2002 whereby
the order dated 03.08.2001 passed by the Prescribed
Page 1 of 20
Authority/ Upper Civil Judge (C.D.) is upheld. The
appellant is, therefore, aggrieved and is before this Court.
2. The appellant herein instituted the petition under
Section 21(1)(a) of U.P. Urban Buildings (Regulation of
Letting, Rent and Eviction) Act, 1972 (hereinafter referred
to as the “Rent Act” for short) against the predecessor of the
respondents herein seeking release of the premises bearing
No.83/72A, Tiwari Gali, Chhatta Bazar, Mathura. The suit
was registered as petition No.6/2000 before the Prescribed
Authority. The Prescribed Authority having taken into
consideration the rival contentions, on holding that the
appellant herein cannot claim ownership right over the
coparcenary property and in that light on arriving at the
conclusion that the appellant is not the landlord of the
respondents and also holding that the bonafide
requirement does not exist, had dismissed the petition
declining the release of the shop/premises in question.
3. The appellant claiming to be aggrieved by the same
had filed the appeal in P.A. Appeal No.1/2002 before the
Appellate Authority, namely, the Special Judge, Mathura.
The learned Appellate Judge on reappreciating the entire
Page 2 of 20
aspect of the matter had arrived at the conclusion that the
appellant herein had lawfully become the owner of the
property and in that circumstance considering the
predecessor of the respondents herein to be the tenant
under the appellant had further examined the matter with
regard to the bonafide requirement. Accordingly, the
learned Appellate Judge had arrived at the conclusion that
the case for release of the property is made out and had
accordingly allowed the appeal. While so considering the
matter, the learned Appellate Judge had also taken into
consideration that an alternative shop bearing No.83/9C
situated at Chhatta Bazar, Mathura measuring 2.5 ft. x 26
ft. standing in the name of the father of the appellant
which was vacant be allotted in favour of the respondents
so as to mitigate the hardship, if any. In that view, the
respondents were directed to vacate the premises in
question by taking possession of the said alternative shop
No.83/9C within one month.
4. The respondents herein claiming to be aggrieved by
the said order dated 09.10.2007 had filed the writ petition
under Article 227 of the Constitution of India before the
Page 3 of 20
High Court of Judicature at Allahabad in C.M.W.P.
No.54204/2007. The learned Single Judge has in fact
considered the matter in great detail, more particularly with
regard to the claim of ownership made by the appellant
herein and keeping in view the provisions contained in the
Hindu Succession Act, 1956 has arrived at the conclusion
that the appellant cannot be considered as a coparcener in
respect of the premises in question. Hence the learned
Single Judge has also taken a similar view as arrived at by
the Prescribed Authority/learned Upper Civil Judge and in
that light has reversed the judgment passed by the
Appellate Court. The appellant, therefore, claiming to be
aggrieved is before this Court in this appeal.
5. We have heard Mr. Rajiv Dutta, learned senior
advocate along with Mr. Vikas Singh Jangra, learned
advocate on behalf of the appellant, Ms. Purnima Bhat,
learned advocate on behalf of the respondents and perused
the appeal papers.
6. The learned senior advocate for the appellant would
contend that the authorities prescribed under the Rent Act
in issue had considered the matter and though divergent
Page 4 of 20
opinions were expressed, the Appellate Court had in fact
appreciated the matter in its correct perspective since in a
summary proceedings of the present nature the
relationship of landlord and tenant was sufficient to be
established which in fact had been established and it ought
not to have been considered like a title suit. The Prescribed
Authority has examined the ownership of the property as if
being considered in a partition suit or title suit so as to
arrive at its conclusion. It is no doubt true that the father
of the appellant had earlier filed an eviction suit against the
predecessor of the respondents and had failed in the
proceedings arising thereunder. However, in a family
settlement the property in question had fallen to the share
of the appellant herein and in that circumstance the need
for the premises was a fresh cause of action and in a
circumstance where at the first instance there was no
dispute to the fact that the father of the appellant, namely,
Shri Dwarka Prasad Chaturvedi was the owner, there could
not have been dispute to the fact that the appellant, who is
his son had acquired ownership over the property in the
family settlement. In that regard, it is contended by the
Page 5 of 20
learned senior advocate that when the learned Appellate
Judge which is a statutory authority under the Act had
arrived at the conclusion based on reappreciation of the
matter, the consideration as made by the High Court in a
writ petition under Article 227 of the Constitution, as if it
was in the nature of an appeal by reappreciating the entire
aspect is not justified. Hence, he contends that the
ownership as well as the bonafide requirement being
established, the appellant is entitled to succeed and secure
release of the suit schedule premises.
7. The learned advocate for the respondents, on the
other hand, would contend that the undisputed position is
that Shri Dwarka Prasad, the father of the appellant had
filed the petition under Section 21(1)(a) of the Rent Act for
release of the shop but the suit was dismissed by the
Prescribed Authority through the judgment dated
07.12.1979. The appeal against the same was dismissed
and the writ petition was also dismissed on 29.10.1999.
The father of the appellant having failed to succeed had
thereafter instituted a fresh proceeding through the
appellant who is his son, on 10.02.2000 by creating certain
Page 6 of 20
rights in favour of the appellant under an alleged
settlement dated 15.11.1999. The Memorandum of
Settlement dated 02.02.2000 was created for the said
purpose. It is her contention that the father of the
appellant had secured his share in the property prior to the
birth of the appellant and as such the property cannot be
considered as a coparcenary property whereunder the
appellant can claim any right as a coparcener and secure a
share. It is her contention that the Prescribed Authority as
also the High Court has considered this aspect and has
arrived at the conclusion in accordance with law which
does not call for interference. It is further contended that
the alternate shop indicated by the learned Appellate Judge
is not suitable for business purpose and, therefore, even in
that regard, apart from the bonafide of the appellant not
being established the respondents would be exposed to
greater hardship if the premises is ordered to be released.
Hence it is contended that the order impugned does not call
for interference.
8. In the background of the rival contentions, at the
outset, a perusal of the judgment in the case of Shalini
Page 7 of 20
Shyam Shetty & Anr. vs. Rajendra Shankar Patil
(2010) 8 SCC 329 relied upon by the learned senior
advocate for the appellant would be in order. This case
refers to the scope of consideration that could be made by
the High Court in a writ petition of the present nature.
However, keeping in view the fact that the High Court in
the instant case while examining the matter had two views
before it, one taken by the Prescribed Authority and the
other by the Appellate Authority which were divergent, one
of the views was required to be accepted by examining the
matter in that regard. Therefore, in the instant facts if that
aspect of the matter is taken note, since the Prescribed
Authority while examining the claim of the appellant herein
had adverted to the manner in which the claim of
ownership was made to the property and had held that the
appellant cannot be considered as a coparcener to be
accepted as the landlord, the High Court has also made a
consideration in that regard to accept such view. Hence in
the present circumstance instead of examining the extent of
jurisdiction, what is required to be noticed by this Court is
as to whether the nature of consideration as made by the
Page 8 of 20
Prescribed Authority as also the High Court is justified as
against the conclusion reached by the Appellate Authority
and which among the divergent opinions is to be accepted.
9. In order to examine that aspect of the matter a
perusal of the papers would indicate that at the first
instance the father of the appellant Shri Dwarka Prasad
had become the owner of the property under a partition
deed dated 09.07.1959. In that capacity, the predecessor
of the respondents was the tenant under him and the said
Shri Dwarka Prasad instituted an eviction petition against
the predecessor of the respondents on 10.03.1979. In the
said proceedings there was no dispute whatsoever with
regard to the ownership of the property or the jural
relationship of landlord and tenant between the father of
the appellant and the predecessor of the respondents. It is
no doubt true that the father of the appellant had failed in
the said proceedings and presently the Petition bearing
No.6/2000 was instituted by the appellant, who is his son,
claiming to be the owner of the property. The entire case as
put forth by the respondents to oppose the eviction suit is
with regard to the status of the property by contending that
Page 9 of 20
the joint family property had lost its character when the
partition had taken place between the father of the
appellant and the other members of the Hindu undivided
family on 09.07.1959. It is, therefore, contended that the
appellant being born in the year 1977 cannot be considered
as a coparcener. In that light it is contended that in a
circumstance where the appellant was not a coparcener, he
could not have taken a share in the property in the alleged
family settlement dated 15.11.1999 to claim as the owner
of the property. Such contention as urged by the
respondents herein has been accepted by the Prescribed
Authority as well as the learned Single Judge in the High
Court.
10. While referring to the said contentions it is necessary
to emphasise that the proceedings under the Rent Act is of
summary nature wherein the jural relationship of landlord
and tenant is to be taken note to the extent it is required
for considering such eviction petition and the rigour of
examining the ownership ought not to be indulged in the
manner as done in a title suit unless the respondent sets
up title to the very rented property which is adverse to that
Page 10 of 20
of the landlord. The Prescribed Authority at the initiation
of the proceedings appears to have been mindful of the
same and the said aspect would be clear if the very nature
of the issues that were framed for consideration by the
Prescribed Authority is taken note of, which read as
hereunder:
1. Whether the petitioner is having a just,
dire and bonafide need of the disputed shop for
running his business?
2. Whether the difficulties arising to the
petitioner is more compared to the difficulties
arising to the respondent if the disputed shop is
being released to the respondent.
However, the consideration has extended beyond the same
and therefore the question is as to whether it is justified in
the instant facts.
11. It is to be noticed that the ownership of the property
was not raised by the Prescribed Authority as an issue for
consideration but appropriately the issues that were
required under the Rent Act had been framed. Though that
was the position the requirement of proof noted and the
finding recorded by the Prescribed Authority with regard to
the nature and status of the property reads as hereunder:
“In the present case, the petitioner had to
prove that the disputed property was a
Page 11 of 20
coparcenary property of the Joint Hindu
Family. In this context, the petitioner had not
presented any record in which the disputed
property has been shown to be a coparcenary
property. The petitioner’s father himself had
filed the petition against the respondent in
the year 1979 for the release of the disputed
shop, in that also, he had declared himself to
be owner and landlord of the disputed
property and he has not given any such
statement that he himself in the capacity of
the Karta of the family was the owner of the
coparcenary property of the Hindu Joint
Family, is the owner and the landlord. Apart
from this, the perusal of the paper No.33g/22
(Colly) (Lagayat) 26, which is filed on behalf of
the respondent and is a copy of the
Assessment of Municipal Corporation, that
the disputed property was registered in the
name of Dwarka Prasad as the owner and in
this, Shyam Bihari has been shown as a
tenant in one shop and in the above record,
there is no such mention that Dwarka Prasad
had been the owner of the disputed property,
in the capacity of Karta of the family. Besides
this, the electricity bill paper No.33g/27 is in
the name of Dwarka Prasad. After going
through all the circumstance, I am of the
opinion that the petitioner has failed to prove
that the aforesaid disputed shop to be a
coparcenary property of the Joint Hindu
Family.”
12. The very consideration made by the Prescribed
Authority as noticed above is in the nature of the title being
examined in a suit for partition or for seeking declaration of
title. In fact the Prescribed Authority apart from the above
Page 12 of 20
conclusion has gone to the extent of indicating as if the
family settlement dated 15.11.1999 was not an equitable
partition and that the right claimed under the same cannot
be accepted as in the earlier round of litigation when Shri
Dwarka Prasad instituted the suit for eviction he had not
referred to the property as a coparcenary property but had
claimed absolute right over the same.
13. As against such conclusion, the learned Appellate
Judge has taken note that Shri Dwarka Prasad, the father
of the appellant had received the property under a
registered partition dated 09.07.1959 and in that light has
kept in view the legal position that a share received in the
coparcenary property would remain to be so for three
generations. Having observed so the learned Appellate
Judge has concluded in the following manner:
“On the basis of the above discussions, it is very
much clear and evident that the shop in
question was a coparcenary property in the
hands of Dwarka Prasad and the applicant
Santosh Chaturvedi being his son has got a
right, interest and share in the said coparcenary
property. Evidence available on the record
reveals that again family settlement occurred in
between Dwarka Prasad, his sons and mother
on 15.11.1999 and due to this family
settlement, family claims and dispute arose and
due to that cause there was repartition of the
Page 13 of 20
said property on 09.04.1997 between Santosh
Chaturvedi and his mother, father and brother
which was written memorandum on
02.02.2000. The written memorandum was
also filed on the records and one original suit
No.220/01 Santosh Chaturvedi vs. Dwarka
Prasad and Others was filed in context with the
partition of the property which was decided on
19.04.2001 on the basis of the compromise.
It is the argument of the learned counsel
for Shyam Bihari that all the averments are
concocted and have been framed just to give
colours to the matter, I am not satisfied with
this argument. Because, the evidence has been
filed on record that oral partition occurred on
15.11.1999 amongst Dwarka Prasad and his
sons Vijay and Santosh Chaturvedi and his
mother which was reduced in writing by a
memorandum of family settlement dated
02.02.2000 which was confirmed by the decree
of the original suit No.220/01. It is well settled
law on this point that the partition can be oral
and even written amongst the members of
Hindu families. The Hindu Law is very much
clear that if one coparcener expresses his desire
for the partition then legally the
partition/severance of the coparcenary property
takes its effect from the same day i.e. from the
day, coparcener had expressed his desire for the
partition.”
14. Though such detailed examination with regard to the
nature of the right to the property has been made in the
present case, we are of the opinion that the same was
wholly unnecessary in a summary proceeding of the
present nature when the tenant had not set up title to the
Page 14 of 20
premises in question. Irrespective of the fact as to whether
the property was the coparcenary property or had become
the absolute property of Shri Dwarka Prasad, the fact
remains that a family settlement dated 15.11.1999 was
entered into, to which Shri Dwarka Prasad who was the
owner was himself a party and had given a portion of his
property to his son. Pursuant to such oral family
settlement dated 15.11.1999 a Memorandum dated
02.02.2000 was also drawn up. Subsequent thereto the
appellant had also filed an Original Suit No.220/2001
seeking that the family settlement be declared as valid. The
said suit was disposed of on 19.04.2001 based on the
compromise.
15. Whether the share given by Shri Dwarka Prasad to
the appellant who is his son is justified or as to whether the
nature of the document under which the settlement was
recorded was as per requirement of law and valid are all
issues which can only be raised by any other member of
the family who would feel deprived and could have claimed
right over the such property. But in a circumstance where
Shri Dwarka Prasad who admittedly was the owner of the
Page 15 of 20
property had made a settlement in favour of the appellant
who is his son, the title thus acquired, in any event, cannot
be called in question by the person who is in occupation of
the premises as a tenant when Shri Dwarka Prasad who
admittedly was his landlord did not continue to claim to be
the landlord. If that be the position as rightly noticed by
the Appellate Authority, in view of the provision as
contained in Section 8 and Section 109 of Transfer of
Property Act, on transfer of the property by the owner the
tenant would automatically become the tenant of the
transferee. The further observation of the Appellate
Authority contained in its order to notice the relationship of
landlord and tenant is as hereunder;
“………………Even if, Shyam Bihari Lal has
denied himself to be the tenant of the
applicant, but here it is more important that
another suit was pending amongst the parties
for the eviction of tenant Shyam Bihari Lal
where Shyam Bihari Lal had accepted himself
to be the tenant of Santosh Chaturvedi and
had deposited the rent on the first date of
hearing of the suit and has also requested for
extending the benefit of Section 20(4) of Act
No.13 of 72, to him in that case.”
Page 16 of 20
It will indicate that the respondents at this juncture cannot
dispute the ownership of the appellant over the property or
the jural relationship.
16. The aspect which is also necessary to be taken note
is that the predecessor of the respondents late Shyam
Bihari had initiated a proceeding in Suit No.113/2011
(Annexure R12) before the Rent Control and Eviction
Officer, Mathura wherein he had sought for allotment of
alternate premises by indicating that the case bearing
No.6/2010 had been initiated by the appellant herein
against him. This would indicate that at the first instance,
the predecessor of the respondents did not have any issue
with regard to the ownership and was making an attempt
to secure an alternate premises but has only thereafter
raised the contention despite the relationship being
indisputable. Therefore, taking into consideration all these
aspects we are of the opinion that the view expressed by
the Appellate Court is appropriate in the present facts and
circumstance.
Page 17 of 20
17. Having arrived at the above conclusion we have
taken into consideration the nature of the claim made by
the appellant for release of the property. From the evidence
as tendered, the appellant had contended that he is doing
wholesale business of cloth for which he does not have
premises due to which he, his wife and two children are
experiencing hardship. In a circumstance where there is
no material available on record to indicate that the
appellant has any other alternate premises, the bonafide
need of the appellant as claimed will have to be accepted
and even though the respondents would face some
hardship, as compared to the same the hardship to be
faced by the appellant would be greater if the premises is
not released to the appellant. Though at this juncture the
learned counsel for the respondents would submit that the
alternate premises bearing No.83/9C Chhatta Bazar,
Mathura ordered to be made available to the respondents is
not suitable, it is in fact an order made by the Appellate
Court only in order to minimize the hardship. In that
circumstance, if the said premises is not suitable, it is open
to the respondents to not opt for the same. However, when
Page 18 of 20
the appellant has established that he is the owner of the
property and the same is required for his bonafide
occupation, the release of the premises in any event, is
required to be made.
18. In that view, for all the reasons stated above we are
of the opinion that the Prescribed Authority as well as the
learned Single Judge of the High Court were not justified in
their conclusion. Accordingly, the judgment dated
03.08.2001 passed in Petition No. 6/2000 and the
judgment dated 28.11.2007 passed in C.M.W.P.
No.54204/2007 are set aside. Consequently, the judgment
dated 09.10.2007 passed in P.A. Appeal No.1/2002 is
restored. The respondents are granted three months’ time
to vacate and handover the vacant possession of the
petition subject premises bearing No.83/72A situate in
Tiwari Gali, Chhatta Bazar, Mathura to the appellant
subject to an undertaking being filed before this Court
within a period of three weeks. It is made clear that if such
undertaking is not filed the benefit of the time granted to
vacate will not be available to the respondents. Further,
Page 19 of 20
the release of the premises in question shall be made
irrespective of opting for the alternate premises as ordered
by the Appellate Court.
19. The appeal is allowed accordingly. There shall be no
order as to costs. All pending applications shall stand
disposed of.
….……………………….J.
(R. BANUMATHI)
….……………………….J.
(A.S. BOPANNA)
….……………………….J.
(HRISHIKESH ROY)
New Delhi,
November 15, 2019
Page 20 of 20
