Hafeez Ahmed vs Raseed Ahmad Ansari

Rakesh Tiwari, J.—Heard counsel for the parties and perused the record.

An application u/s 16 of the U.P. Act No. XIII of 1972 was filed by the landlord before the Rent Control and Eviction Officer, Shahjahanpur which was registered as case No. 2/3 of 2008 Raseed Ahmad Ansari v. Hafeez Ahmad case No. 2/3 of 2008. The application was rejected by judgment and order dated 3.3.2008 by the Prescribed Authority. Aggrieved the landlord preferred Civil Revision No. 16 of 2008 against the judgment and order dated 3.3.2008 before the District Judge, Shahjahanpur who by means of the judgment and order dated 2.5.2008 allowed the same and remanded the matter for fresh adjudication before the trial court.

Prescribed authority thereafter hearing the parties on remand of the case allowed the release application vide order dated 29.8.2008 which was challenged by the Petitioner in revision before the Addl. District Judge, Shahjahanpur. The revision was dismissed by the revisional court vide judgment and order dated 16.3.2009. Aggrieved by the order of the courts below, the Petitioner has preferred the present writ petition with the prayer for quashing of the impugned judgment and order dated 16.3.2009 passed by the Addl. District Judge Court No. 8 Shahjahanpur in Civil Revision No. 47 of 2008, Hafeez Ahmed v. Raseed Ahmed Ansari Civil Revision No. 47 of 2008, as well as the judgment and order dated 29.8.2008 passed by the Prescribed Authority/ Rent Control and Eviction Officer, Shahjahanpur/Addl. Collector (Admn.) in case No. 4 of 2008, appended as Annexures 6 and 4 respectively to the writ petition. The Petitioner has further sought a relief of mandamus directing the Respondent not to dispossess the Petitioner from the accommodation in dispute.

The facts in a nut shell is that the Petitioner was tenant in the shop in dispute for about 10-11 years. Its previous landlady was Smt. Nafisa Begum wife of Late Wali Ullah, resident of mohalla Haddak Chauki near School Shiksha Samiti, Shahjahanpur. He claims that the tenancy started in the year 1996-97 on a rent of Rs. 60 per month which was enhanced to Rs. 100 lateron. It is submitted by the counsel for the Petitioner that the Petitioner is a poor person engaged in business of repairing bicycles in the shop in dispute and when in the month of January, 2006 he demanded receipt of the enhanced rent, it was refused by the previous owner. The Petitioner in the circumstances was compelled to send the rent by money order to Smt. Nafisa Begum who did not accept and returned back the money order. Aggrieved by the conduct of the previous owner, the Petitioner filed Misc. Case No. 35 of 2006, Hafiz Ahmed v. Smt. Nafisa Begum Misc. Case No. 35 of 2006, before the civil court for depositing the rent which was continuously being deposited in the civil court. The house alongwith the shop in dispute was thereafter purchased by the Respondent Raseed Ahmad who became the new landlord of the Petitioner in the house in dispute. He sent notice on 20.3.2007 and compelled the Petitioner to vacate the shop in dispute. Thereafter in the suit for temporary injunction filed by the Respondent, injunction was granted by the civil court by order dated 24.5.2007, on application paper No. 6C filed by the new landlord.

The Petitioner contested the case No. 4 of 2007 u/s 16 of the U. P. Act No. XIII of 1972 and ultimately it was dismissed as narrated above. Counsel for the Petitioner has argued that the impugned judgment is illegal as the Prescribed Authority/Rent Control and Eviction Officer has passed the order in illegal and perverse manner against the provision of Act No. XIII of 1972, despite giving finding of fact of possession in his favour by the previous owner and did not consider the fact that the Petitioner had been tenant for 10-11 years in the shop and thus the release application was not maintainable before the Prescribed Authority.

The Petitioner has assailed the order passed by the revisional court also on the ground that the revisional court, without considering the facts and evidence on record has passed the impugned judgment and order affirming the judgment and order of the trial court while it is admitted fact that the Petitioner was tenant of the previous owner for the last 10-11 years hence claimed adverse possession.

It is further argued that the courts below have not applied its mind, misread evidence and misconstrued the law and have thus committed an error in allowing the application u/s 16 of the Act No. XIII of 1972 filed by the landlord. The Petitioner has also challenged the validity, correctness, findings and conclusion of the courts below on the ground that the Petitioner cannot be evicted from the shop as the shop in question cannot be deemed to be vacant in the facts and circumstances that he is occupying the same with the permission of the previous owner. It is vehemently argued that the courts below have not considered the order passed by the civil court on the application paper No. 6C for temporary injunction in its correct perspective before recording a finding regarding legality of possession of the Petitioner over the shop in question and as such the judgment and order passed by the courts below are not sustainable in the eyes of law. Counsel for the Petitioner has placed reliance in the judgment rendered by this Court in Anil Kumar Dixit Vs. Smt. Maya Tripathi and Another, wherein in para 5 it has been held:

It is also correct that no limitation for initiating proceedings for declaration of deemed vacancy and allotment / release under Sections 12 and 16 of the Act has been provided. However, even if no limitation is provided application will have to be filed within reasonable time. This is what has precisely been held by the Supreme Court in Mansaram Vs. S.P. Pathak and Others, in Brij Bala Jain v. Amar Jeet Kaur 1996 (28) ALR : 1996 (3) AWC 1624, similar view has been taken after following the aforesaid authority of the Supreme Court in Mansha Ram (supra). In para 11 of Brij Bala Jain''s case (supra) it has been held that "In any case 12 years period should be taken as reasonable time for initiating the proceedings under the Statute from the date cause of action arises taking action....

Per contra counsel for the Respondent has argued that there was no dispute between the parties before the court below ; that the Petitioner was the tenant of the Nafisa Begum the erstwhile landlady. He submits that according to the own averment of the Petitioner, he was a tenant of erstwhile landlady Smt. Nafisa Begum for 10-11 years and not 12 years or more hence the judgment given in Anil Kumar Dixit (supra) would not apply. He further submits that the Petitioner was unauthorized occupant in the shop in dispute as there was no allotment order in his favour. It is stated that in view of the fact that the Act No. XIII of 1972 was applicable and if the Petitioner has been put in possession by the erstwhile landlord, even then the application for release of the accommodation was maintainable as the period of 12 years had not passed from the date of purchase of the house by the Respondent who was the new landlord hence the application u/s 16 of the Act No. 13 of 1972 was maintainable. As regards adverse possession it has to be open and hostile. It was not so in so far as erstwhile landlady Smt. Nafisa Begum is concerned and even not so as regards the new landlord Respondent No. 3 who had purchased the house in dispute subsequently from its previous owner.

Having heard counsel for the parties and perusal of the record it appears that according to the Petitioner himself he was tenant and in possession of the house for more than 12 years. Even otherwise the ruling cited by the Petitioner would not apply as by that time the Respondent /landlord had moved application for his eviction. The Petitioner could not produce any allotment order in his favour inspite of the fact that the provision of Act No. XIII of 1972 was applicable to the building. He was admittedly not allotted the accommodation in dispute which is claimed to be kept as tenant at the rate of Rs. 100 per month by the erstwhile landlady without notifying of vacancy. If the shop in dispute has been given to the Petitioner unauthorisedly and in continuance of the provisions of the Act, by the erstwhile landlord, the Petitioner cannot claim that there was no legal vacancy in the house in dispute.

In my considered opinion and in the facts and circumstances of the case, the courts below have rightly come to a conclusion that the Petitioner was an unauthorised occupant and a legal vacancy existed. The Petitioner has no right to claim tenancy of the accommodation in dispute on ground of adverse possession as his possession was not open and hostile and also as the shop in dispute to which the provisions of Act No. XIII of 1972 applied as it was never allotted to him in accordance with the provisions of the Act. In the case law cited by the Petitioner in para No. 4 it has been provided that if after July 1976 building is let out without allotment order under the Rent Control Act then it may be deemed to be vacant and open to allotment as the agreement of letting is not binding upon Rent Control and Eviction Officer by the provision of Act No. XIII of 1972.

For all the reasons stated above, the writ petition is accordingly dismissed. No order as to the costs.