Chandra Kumar alias Nannhey vs Chiraunji Lal and Others

Devendra Pratap Singh, J.—Heard Sri P.N. Saxena, learned senior advocate assisted by Sri Amit Saxena for the petitioner and Sri Manoj Misra, learned Counsel for the contesting respondents.

This petition is directed against an appellate order dated 30th March, 2000 by which an application for release of the disputed accommodation has been rejected and the order of the prescribed authority allowing it has been set aside.

The relevant facts for consideration of this petition are that the petitioner filed an application for release u/s 21(1)(a) of the U.P. Act No. 13 of 1972 (hereinafter referred to as the "Act") before the prescribed authority in April, 1992 for the release of the disputed accommodation and it was registered as P.A. Case No. 2 of 1992. The application was filed inter alia with the allegation that the father of the petitioner, late Ram Lal, was the owner of the disputed premises where the contesting respondent was a tenant. The father of the petitioner gifted the said property to the petitioner through a registered gift deed dated 5.6.1985 whereafter he became its owner and landlord. It was further pleaded that the petitioner was living alongwith his family in one room tenanted tenement where he also had his shop of sweetmeat and in the rear portion his family of nine adult persons including he himself, his wife, four sons, two daughters-in-law and one daughter were residing with great difficulty, while the tenant after purchasing a vacant plot of land at Tubewell Road in Sarai Miran had made construction thereon and had also enclosed the area which could be used for his own family.

The respondent tenant in his written statement admitted that the petitioner alongwith his family of nine members was residing in a one room tenanted tenement where he was also carrying on his sweetmeat shop but denied rest of the allegations. In his additional pleas, he stated that earlier the father of the petitioner made an effort to dispossess him forcing him to file an injunction suit which was decreed in his favour that he would not be evicted except in accordance to law and thereafter even the petitioner sought to forcibly evict him leading to filing an application under Order XXI, Rule 32 of the C.P.C. before the Court and it was on this account that the release application has been moved and there was no bona fide need. It was also stated that after the death of the father of the petitioner, his other brothers and sisters became co-owners of the disputed property which did not join as parties and therefore, the release application could not be entertained. He denied the execution of the gift deed and stated that in fact it was a sale deed and no six months'' notice was given and therefore the release application was incompetent in view of the 1st proviso to Section 21(1)(a) of the Act.

After the parties had led evidence, the prescribed authority after due examination of the gift deed came to the conclusion that it was not a sale deed and therefore the bar placed by the proviso would not apply for which he relied upon a decision of this Court. It went on to hold that since it was not a purchase within the meaning of the Act, no notice was required. After considering the evidence, he came to the conclusion that the need of the petitioner was both genuine and hard pressing. On the issue of comparative hardship, it recorded a categorical finding of fact that after construction of a large room and other amenities on his plot in Sarai Miran, the tenant had mala fidely sold it during the pendency of the proceeding and therefore, he decided the issue of comparative hardship also in favour of the petitioner and allowed the application.

Aggrieved, the respondent tenant preferred Rent Appeal No. 3 of 1997 and the Ist Addl. District and Sessions Judge, Kannauj allowed the appeal holding that the gift deed was in fact a sale deed and as six months'' notice was not given, the release application could not have been filed. He further went on to hold that after the death of Ram Lal, other brothers and sisters of the petitioner became joint owners and since they did not join as applicants in the proceedings before the prescribed authority, the same could not be allowed.

It is urged on behalf of the petitioner that the findings of the appellate court that it was a sale deed merely because the valuation of the property was disclosed in the deed, is perverse.

The copy of the gift deed is on record. Its perusal shows that no consideration for the transfer had passed and reasons for the gift is also mentioned therein, though the valuation of the property is also mentioned. It is a known fact that even a gift deed is to be duly stamped and the same can only be registered if it is stamped according to its valuation. Merely mentioning the value for purpose of its valuation would not convert a gift deed into a sale deed. One of the necessary ingredient in the case of a sale deed is that consideration is paid to the vendor, but there is not an iota of evidence to show that any consideration passed in the transaction. The trial court was fully justified in holding that it was not a case of purchase as used in the Explanation and the assumption and findings to the contrary are nothing but perverse.

It is then urged that assuming it was purchase, even then since the release application was moved after expiry of the three years period, the bar would not apply.

The gift deed was made in 1985 while the release application was filed in 1992, i.e, after more than six years. A learned single Judge of our Court in Anwar Hasan Khan Vs. District Judge, Shahjahanpur and others, has held that where the release application is filed after three years of purchase of the building, no notice is required. This proposition has been upheld by the Apex Court when an appeal was carried to it in Anwar Hasan Khan v. Mohd. Shafi 2002 ALJ 758 : 2001 (4) AWC 3228 (SC). No contrary decision has been cited by the counsel for the respondent and thus the argument is bound to be accepted.

Lastly, it is urged that the appellate court committed a manifest error of law in holding that the release application was not maintenable as all the co-landlords had not filed it or joined the proceedings.

The proposition that even one of several co-landlords is entitled to maintain an application for release u/s 21(1)(a) of the Act was upheld way back in 1987 by a Full Bench of our Court in the case of Gopal Dass v. VIth Addl. District Judge 1987 (1) ARC 281 : 1987 (1) AWC 538, and this has remained the consistent view. In fact it has also been held that even if a dispute was pending amongst the co-landlords, even in these circumstances the application would be maintainable as held in Nirmal Kumar Suri v. VIIIth A.D.J. 1995 (1) ARC 146 : 1995 (1) AWC 118. Thus, even this argument is bound to be accepted.

In view of the discussions hereinabove, this petition succeeds and is allowed and the appellate order dated 30th March, 2000 is hereby quashed and that of the prescribed authority stands restored.

Keeping in mind that the release application was made about 18 years ago, therefore, on the facts of this case, the respondent tenant is directed to vacate the disputed premises and handover its vacant possession to the petitioner landlord within a month from today.