Abdul Alim vs Sheikh Jamal Uddin Ansari and Others

A.S. Anand and K. Venkataswami, JJ.—This appeal by special leave is directed against the order of the High Court of Allahabad in Civil Miscellaneous Writ Petition No. 12434 of 1990, decided on 4.9.1992.

The dispute in the instant appeal pertains to a shop situate in Mohalla Bazar Bagh, Bahadurganj, known as Bazarganj, Moradabad. Initially the shop in question was owned by Respondent No. 1 and his real brother-Sheikh Burhan Uddin. Vide a registered sale deed executed on 12.4.1988, Sheikh Burhan Uddin sold his share in the shop to the Appellant, who, thus, became a co-owner of the premises in question to the extent of half share. Respondent No. 1 continued to be the co-owner to the extent of the other half share. Respondent No. 1 filed an application for release of the shop u/s 21(1)(a) of the U.P. Urban Buildings (Regulation of betting, Rent and Eviction) Act, 1972 (hereinafter "the Act") before the prescribed authority in 1987. The application was dismissed on 29.3.1989 by the prescribed authority principally on the ground that since the Appellant had become a co-owner of the premises, the application for release was not maintainable. Appeal filed by Respondent No. 1 in the Court of Additional District Judge, Moradabad failed on 24.1.1990. Respondent No. 1, thereafter, filed civil miscellaneous writ petition before the High Court of Allahabad. Though the High Court confirmed the findings of fact recorded by the Courts below, it held that the application for release was maintainable, as the sale deed executed in favour of the Appellant on 12.4.1988 could not change his status of being a tenant of the premises. Hence this appeal by special leave.

We have heard learned Counsel for the parties.

Both the trial court and the Appellate court were fully justified in holding that the release application u/s 21(1)(a) of the Act was not maintainable because the Appellant-tenant had, in the meanwhile, acquired co-ownership rights in the demised shop. The change of status of the tenant to that of being an equal co-owner of the unpartitioned property, would, therefore, lead to an irresistible conclusion that the release application was not maintainable. It is not disputed that there has been no partition of the suit premises till date. The High Court was, under the circumstances, not justified in upsetting the findings of the trial court and the appellate court in exercise of its writ jurisdiction.

Thus, for what we have stated above, this appeal succeeds and is allowed. The order of the High Court dated 4.9.1992 is set aside and that of the trial court and the Appellate court restored. There shall, however, be no order as to costs.