Jagdish Chand vs Krishna Mohan Agrawal and Others

Y.R. Tripathi, J.—These tenants'' petitions involving common questions of facts and law are being disposed of together by this common judgment.

In writ petition No.47 of 2005 (R/C), the petitioner has challenged the order dated 1.4.2002 passed by the Prescribed Authority in Rent Case No.8 of 1999 releasing thereby the tenanted portion of building No.826 in occupation of the petitioner as also the appellate order dated 30.3.2005 passed in Rent Appeal No.4 of 2002 whereby his appeal against the aforesaid order of the Prescribed Authority has been dismissed. The petitioner in other writ petition No.55 of 2005 (R/C) has challenged the order dated 15.9.1999 passed by the Prescribed Authority in Rent Case No.7 of 1998 releasing thereby the portion of the said building under his occupation as also the order of the appellate Authority dated 30.3.2005 passed in Rent Appeal No.8 of 1999 dismissing thereby his appeal.

It appears that in both the aforesaid cases, the respondent No.1 alongwith his sons, claiming to have succeeded the disputed building from his wife Smt. Anar Devi as her heir as also on the basis of a Will, made applications under Clause (a) of subsection (1) of Section 21 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, hereinafter referred to as the Act for short, for its release on the ground of personal requirement. Their case was that their family is large one, consisting of more than thirty members and some of their family members need accommodations for starting business and for establishing chambers/offices. It was also alleged in the release applications that the business of the petitioners in the tenanted accommodations had come to a stand still because of the declaration of market area at a different place and the petitioners have also alternative accommodations for their residence. According to the respondentapplicants, their hardship was comparatively more than that of the petitioners, hence the disputed accommodations deserved to be released under the relevant provisions of the Act, as cited above.

The petitioners contested the release applications inter alia on the grounds that the personal requirement set up by the respondents was untrue and they are rich people having a number of houses in the town of Lakhimpur Kheri. They further alleged that though they do not dispute about the respondents'' probability of their being the owner/landlords of the disputed accommodations and the house No.826 in question, but there are others also claiming their title in it and unless it is decided as to who out of them has inherited the properties of Lala Murlidhar Agrawal, the respondents cannot be held as their landlords entitled to make the applications for release.

The Prescribed Authority, after affording the parties opportunity to lead their evidence for and against their respective versions, allowed the applications for release. Aggrieved from the orders of the Prescribed Authority, the petitioners preferred appeals, which failed to bear fruit, dissatisfied from which they have approached this Court through the present writ petitions.

During the course of arguments, the learned counsel for the petitioners, Sri S.K. Mehrotra, did not challenge the finding of the Courts below in both the writ petitions about the respondents'' bona fide requirement of the disputed accommodations in occupation of the petitioners. He simply assailed the finding of the Courts below holding the respondents as landlords vis�vis the petitioners. Contrary to it, Sri M.A. Khan representing the respondents defended the orders of the Prescribed Authority and the appellate Court challenged in both the writ petitions. Considering the arguments raised from both the sides, the sole question that crops up for determination in these two petitions is; whether the Courts below have committed any error or illegality in holding the respondents as owners/landlords of the disputed accommodations.

From the perusal of the pleadings of the parties as also the documents relied upon by them, it would be borne out that the respondent No.1 traces his title and ownership over the disputed building through a Will allegedly executed by Smt. Anar Devi, his wife, in his favour. His case is that Smt. Anar Devi, on the basis of certain Wills as also being the natural heir of Lala Murlidhar Agrawal, was the owner of the disputed accommodations and house No.826 aforesaid and that Smt. Anar Devi executed a Will in his favour and rest of the respondents were arrayed as applicants on account of their being heirs of Smt. Anar Devi as also to avoid any future controversy. The crux of the matter, therefore, is whether Smt. Anar Devi succeeded the disputed house, which admittedly belonged to Lala Murlidhar Agrawal, as his natural heir or on the basis of Will said to have been executed by Lala Murlidhar Agrawal in her favour.

It appears that on the death of Lala Murlidhar Agrawal, which took place in the year 1976, one Badri Prasad claiming himself to be the adopted son and heir of Lala Murlidhar Agrawal, filed a regular suit claiming his entitlement to certain sum which had been deposited by Lala Murlidhar Agrawal in Hindustan Sugar Mill, Lakhimpur Kheri. That amount alongwith interest was subsequently, with the permission of the Court, withdrawn by Smt. Anar Devi, who deposited it in Punjab Sindh Bank, Lakhimpur Branch, whereupon Badri Prasad converted his aforesaid suit into a declaratory suit. Smt. Anar Devi contested the suit inter alia denying the claim of Badri Prasad and pleading herself to be the heir of Lala Murlidhar Agrawal being his daughter as also on the basis of certain Wills allegedly executed by Lala Murlidhar Agrawal in her favour. Certain other persons including respondent No.2 were also arrayed as parties in that suit, in the capacity of trustees but the respondent No.2 gave statement in favour of his mother Smt. Anar Devi. Smt. Anar Devi, in order to substantiate her claim had set up three Wills executed in her favour by Lala Murlidhar Agrawal on 27.11.1950, 19.7.1958 and 15.4.1975. The trial Court upholding the claim of Smt. Anar Devi in respect of the money in question dismissed Regular Suit No.26 of 1977. The trial Court in that case held that the Will dated 20.1.1947 set up by Badri Prasad was not a Will but it was merely an adoption deed and that Smt. Anar Devi, on the basis of Will dated 27.11.1950 was the heir of Lala Murlidhar Agrawal and was entitled to withdraw the amount in question. The trial Court, however, disbelieved the two other Wills dated 19.7.1958 and 15.4.1975 set up by Smt. Anar Devi and held that they were not proved. Badri Prasad then filed a Civil Appeal No.113 of 1991 against the judgment of the trial Court, but it too failed to bear fruit, whereupon he filed Second Appeal No.214 of 1996 in this Court, which is said to be still pending.

Before entering into the main controversy as to whether the respondents are landlords of the disputed premises or not, it would be pertinent to point out that after the death of Lala Murlidhar Agrawal, Smt. Anar Devi had filed an S.C.C. Suit No.3 of 1981 under subsection (4) [sic2(a)] of Section 20 of the Act seeking ejectment of the tenants, wherein the tenants took the plea that a serious controversy about title was involved in the case and the plaint should be returned under Section 23 of the Provincial Small Causes Courts Act. The District Judge, Kheri, who was seized with the said matter, passed an order on 20.3.1982 holding that intricate question of title was involved in the case hence the plaint be returned to be presented to a Court having jurisdiction to determine the title. The said order of the District Judge passed in S.C.C. Suit No.3 of 1981 Smt. Anar Devi v. Girdhar Lal and four others, was not challenged anywhere and assumed the character of finality. Subsequently Smt. Anar Devi without getting her title declared in respect of the disputed premises made an application under Section 21 of the Act against M/s. Laxmi Kant Girdhar Lal and others for release of the shops situate in Mohalla Galla Mandi, Lakhimpur, district Kheri on the ground of her bona fide need, in which the tenants made an application under Section 151 CPC for stay of the proceedings of the case, alleging that the intricate question of title was involved and without getting it decided, the suit cannot proceed. That application was rejected by the Prescribed Authority, against which M/s. Laxmi Kant Girdhar Lal and others, the tenants filed a writ petition No.4844 of 1986 (R/C), in which the proceeding of the release application pending before the prescribed authority was stayed. The said writ petition has now been finally decided on 2.8.2004 with a direction to the prescribed authority to decide the application taking into consideration the order passed by the Small Causes Court in Suit No.3 of 1981. the petitioners also filed certain papers before the prescribed authority to show that certain persons had moved applications under Section 92 of the CPC seeking permission of the Court to file suit against the trustees of the trust allegedly created by Lala Murlidhar Agrawal through his Will dated 6.11.1973. It is also pertinent to point out here that two respondents, Krishna Mohan Agrawal and Prahlad Kumar Agrawal are also said to have been appointed trustees by Lala Murlidhar Agrawal through his aforesaid Will. The documents filed by the petitioners showed that both Krishna Mohan Agrawal and Prahlad Kumar Agrawal had contested the proceeding under Section 92 CPC and had not denied either the execution of the Will by Lala Murlidhar Agrawal or the trust created by him through that Will; rather they had simply alleged that the trust properties had not till then come in the hands of the trustees.

The learned counsel for the petitioners, Sri S.K. Mehrotra, taking me through the judgment of the Courts below has urged that the learned Courts below have wrongly placed reliance on the judgment of Suit No.26 of 1977 Badri Prasad v. Smt. Anar Devi and others in holding that the right and title in disputed property has already been decided and Smt. Anar Devi on the basis of Will dated 17.11.1950 has been held to be the heir of Lala Murlidhar Agrawal and was as such indisputably the landlord. He has urged first, that the matter is still subjudice as the second appeal filed by Badri Prasad is still pending in this Court, and secondly, that both the Courts below have erred in overlooking the Will dated 6.11.1973 through which Lala Murlidhar Agrawal has created the trust. He also described the findings recorded by the learned Courts below as absurd, based on conjectures and surmises, and maintained that neither the will dated 6.11.1973, whereby Lala Murlidhar Agrawal is said to have created the trust, was in issue, nor any of the parties to that suit had any interest to prove it because the same would have been against the interest of both the parties. He also urged that though some of the alleged trustees were parties in that suit, but they too chose to be moot spectators in the case as the proof of the said Will would not have suited their interest.

The learned counsel for the respondents, contrary to it, urged that because the trial Court and the appellate Court have concluded about Smt. Anar Devi having succeeded the movable and immovable properties of Lala Murlidhar Agrawal on the basis of the Will executed by him in the year 1950 and the other Wills having not been found to be proved, it would be deemed that the will dated 6.11.1973 allegedly executed by Lal Murlidhar Agrawal is non est.

It is evident from the perusal of the judgments of the Courts below that in order to hold Smt. Anar Devi heir of Lala Murlidhar Agrawal, both the Courts have mainly relied upon the judgments of the trial Court rendered in Suit No.26 of 1977 Badri Prasad v. Smt. Anar Devi and others and that of the appellate Court in Appeal No.113 of 1991. Despite the petitioners having challenged the relationship of landlord and tenant, the Prescribed Authority did not appreciate their pleadings and taking it lightly, observed that the petitioners have not disputed seriously the ownership of the applicantrespondents but have simply alleged that they have not been held by any Court to be either the owners or the landlords of the disputed building. The prescribed authority further proceeded to hold that in Suit No.26 of 1977 Badri Prasad v. Smt. Anar Devi, the Court has held that Lala Murlidhar Agrawal had executed a will in favour of Smt. Anar Devi in the year 1950 and that on the basis of that Will Smt. Anar Devi had become the owner of the building in question. It further held that on the death of Smt. Anar Devi, Krishna Mohan Agrawal being her husband and rest of the respondents 2 to 7 being her sons became the owner and landlords of the premises in question. It also held that even if the second appeal filed by Badri Prasad succeeds, Badri Prasad would simply become a cosharer alongwith the respondents and thus the applications made by the respondents for release of the disputed premises were fully maintainable. The Prescribed Authority further held that the persons who are said to have been appointed trustees by Lala Murlidhar Agrawal, themselves have stated that no such trust was created. It thus brushed aside the case of the petitioners on the point of creation of trust by Lala Murlidhar and recorded a finding that the trust in question does not exist. The issue of relationship of tenant and landlord between the petitioners and the respondents was also debated before the appellate Court, which ridiculed the contention of the petitioners by observing that this issue has already been decided in Suit No.26 of 1977 and it now cannot be reopened and Will operate as resjudicata. Both the Courts below have further observed that the mere substitution of three sets of claimants as heirs of Lala Murlidhar Agrawal on his death in Civil Suit No.112 of 1975 does not create any right in favour of other parties.

Both the Courts below, it appears, have not appreciated the objection taken by the petitioners on the point of relationship of landlord and tenant between them and the respondents in right perspective. In Suit No.26 of 1977, Smt. Anar Devi had claimed succession of Lala Murlidhar Agrawal, not only on account of her being his daughter but she had also specifically pleaded that Lala Murlidhar Agrawal, her father, had executed three Wills in her favour. The last Will of Lala Murlidhar in her favour was said to have been executed on 15.4.1975. Smt. Anar Devi, in that case, had also led evidence to prove that Will, but the trial Court found the evidence insufficient and held that the Will dated 15.4.1975 was held to be not legally proved, the fact remained that Smt. Anar Devi had set up that Will as the last Will of Lala Murlidhar Agrawal and had placed reliance on it to substantiate her claim of succession of his movable and immovable properties. She or her heirs claiming through her, therefore, cannot be allowed to resile from the case, which Smt. Anar Devi had taken in suit No.26 of 1977. The copy of the said Will has been filed by the petitioners, a perusal of which shows that the executant Lala Murlidhar Agrawal, prior to the execution of this Will, has admitted his having executed six other Wills. If Lala Murlidhar had, after execution of Will in 1950 in favour of Smt. Anar Devi, had executed certain other Wills, how the Will of 1950 could have been held to be the last Will of Lala Murlidhar entitling Smt. Anar Devi to succeed the disputed properties of her father on its basis. The respondents, in order to claim succession of Smt. Anar Devi were, therefore, required to prove the Will allegedly executed by Lala Murlidhar Agrawal in her favour in the year 1975. In the event of the said Will being not proved, the other Will which immediately preceded the execution of that Will i.e. the Will allegedly executed by Lala Murlidhar Agrawal on 6.11.1973 should be treated to be his last Will. As already observed, the respondents No.1 Krishna Mohan Agrawal and the respondent No.2 Prahlad Kumar did never raise any dispute about the creation of trust by Lala Murlidhar Agrawal; rather in their written statements filed in the case initiated under Section 92 of the CPC by certain persons, they simply pleaded that the property had not come in the hands of the trustees and the same being occupied by the tenants, the Dharmshala as desired by Lala Murlidhar Agrawal in his Will executed in 1973 could not be constructed. The defence thus taken by the respondents 1 and 2 in the application under Section 92 CPC clearly shows that they admitted the execution of the Will dated 6.11.1973 by Lala Murlidhar Agrawal and thereby the creation of the trust. It is strange that they have now taken a somersault in the proceeding of release and claimed that it was Smt. Anar Devi who had succeeded the disputed premises of Lala Murlidhar as her natural heir as also on the basis of his last Will. If Lala Murlidhar Agrawal had at all executed any Will in favour of Smt. Anar Devi, there was no question of her succeeding the disputed premises as his natural heir. The setting up of the Will of 15.4.1975 by Smt. Anar Devi and the respondents, who claimed through her, is, therefore, not without any purpose. They knew that in the presence of certain Wills executed by Lala Murlidhar Agrawal in respect of his properties, it would be difficult to prove the succession of Smt. Anar Devi and this is probably to overcome the effects of other Wills that Smt. Anar Devi and the respondents for that purpose alleged that Lala Murlidhar Agrawal had executed a Will dated 15.4.1975 in favour of Smt. Anar Devi. Through this Will, Lala Murlidhar Agrawal appears to have cancelled all other Wills executed by him earlier. The Respondents, therefore, now cannot be allowed to base the succession of Smt. Anar Devi on the judgment in regular Suit No.26 of 1977 Badri Prasad v. Smt. Anar Devi, in which against the own version of Smt. Anar Devi, the Court held her entitled to succession on the basis of a Will executed in 1950, whereas Smt. Anar Devi herself alleged that her father did execute three Wills in her favour one in 1950, the other in 1958 and the third one on 1975. The question of Smt. Anar Devi succeeding the disputed premises being natural heir of Lala Murlidhar Agrawal, therefore, does not arise and she or for that matter, the respondents claiming through her were required to prove the Will, that they alleged, was executed by Lala Murlidhar Agrawal in favour of his daughter in 1975.

The Courts below in order to hold Smt. Anar Devi entitled to succession of the disputed premises of Lala Murlidhar Agrawal have also placed reliance on the deposits of housetax and watertax made by Smt. Anar Devi. Even if Smt. Anar Devi had deposited house tax and water tax and got herself mutated in municipal records, still she will not become owner or landlord of the house in question. She has nowhere pleaded her adverse possession over the disputed premises vis�vis Badri Prasad or the trustees. The learned Courts below have, therefore, committed manifest error in appreciating the evidence on the point of relationship of the parties. It is true that a landlord need not necessarily be the owner of tenanted accommodations as the expression �landlord� as defined in Clause (j) of Section 3 of the Act, in relation to a building, means a person to whom its rent is or if the building were let, would be, payable and includes, except in clause (g), the agent or attorney, or such person. In the instant case, it is on the basis of ownership that the respondents pleaded themselves to be the landlords, hence they were obliged to prove first that they had inherited the disputed premises, as is their case, from Smt. Anar Devi whom the Courts below held to have succeeded the properties of Lala Murlidhar Agrawal on the basis of his Will dated 27.11.1950 in regular Suit No.26 of 1977, whereas Smt. Anar Devi herself had set up a subsequent Will of 15.4.1975 in respect of which she had also led evidence in Suit No.26 of 1977 aforesaid but the Courts held it to be not legally proved. Thus when the case of Smt. Anar Devi herself was that Lala Murlidhar Agrawal, after execution of Wills in 1950 and 1958 in her favour had executed certain other Wills, I am afraid how Smt. Anar Devi could have been held entitled to succeed the disputed premises of her father when evidently certain other Wills were executed by Lala Murlidhar Agrawal, which fact was also expressly or impliedly admitted by Smt. Anar Devi. It is wellsettled that it is the last Will of a person before his death which prevails, as it supersedes all other earlier Wills, if any, executed by him. The Courts below thus do not appear to have examined this aspect of the case. Under Section 21 of the Act, it is only the landlord who can move the application for release of the building on the grounds mentioned under its subsection (1). It was, therefore, bounden duty of the courts below to have examined the parties'' evidence to find out whether or not the respondents, who moved the applications for release of the disputed premises, were the landlords of the petitioners. It was only then that they could have proceeded to examine their comparative hardships to find out whether or not the disputed premises could be released. The Courts below, to my mind, have not proceeded to decide the case in right perspective; and the findings recorded by them are perverse and based on irrelevant materials and considerations. The impugned judgments and orders in both the writ petitions, therefore, deserve to be quashed.

The writ petitions are, accordingly, allowed and the impugned judgment and orders of Prescribed Authority dated 1.4.2002, passed in Rent Case No.8 of 1999, of appellate Court dated 30.3.2005 passed in Rent Appeal No.4 of 2002, of Prescribed Authority dated 15.9.1999 passed in Rent Case No.7 of 1998 and of appellate Court dated 30.3.2005 passed in Rent Appeal No.8 of 1999 are quashed and both the cases are sent back to the Prescribed Authority concerned to decide afresh after considering all the material facts. The Prescribed Authority, first of all, shall decide whether the respondents making the applications for release come within the purview of the definition of ''landlord'' and if it answers the issue in favour of the respondents, then alone it shall proceed to examine whether the disputed premises can be released or not on the ground of bona fide requirement of the respondents. The Prescribed Authority may afford fresh opportunity to the parties to lead their evidence for and against their respective versions to enable it to determine the controversy finally and effectively.

In the circumstances of the case, I make no order as to costs.

(Petitions allowed)