Krishna Chandra Srivastava vs District Judge,Allahabad & Ors.

Sudhir Narain, J.—This writ petition is directed against the order dated 2421997, releasing the disputed accommodation in favour of the landlordrespondents 3 and 4 and the order dated 1651997, passed by respondent No.l, dismissing the appeal against the aforesaid order.

The fact in brief are that Har Narain Lal was owner of the house in dispute No. 542 Neta Nagar, Nai Basti, Kydganj, Allahabad. The petitioner''s father was tenant on the ground floor portion of the said house. Har Narain was residing on the first floor of this house. He had no issue and his wife predeceased. He executed a registered will thereby creating the trust know as Har Narain Lal Kishori Devi Trust by which he bequeathed the house in dispute as well as house No. 16/135, Sohbatia Bagh, Allahabad, to the trust. Ramji Lal nephew of Har Narain claimed that the previous will was cancelled by his uncle Har Narain Lal and he executed another will on 15th July 1984 thereby bequething house No.542 Neta Nagar, Nai Basti, Kydganj, Allahabad to him, Har Narain Lal died on 8th August, 1984. After his death Ramji Lal filed an application for obtaining succession certificate in the Court. The Court granted succession certificate under the provision of Indian Succession Act, 1925. On 2881985, Ramji Lal sold the disputed house to Shri Laxmi Pati Tripathi and Ram Chandra Tripathi respondents 3 and 4. After obtaining the sale deed they got their names mutated in the Municipal record. Respondents 3 and 4 filed application for release of the disputed accommodation against the petitioners under Section 21 (1) (a) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the Act ) on 12th July 1994 stating that they had purchased the property from Ramji Lal on 28th August, 1985 who was then owner of the disputed property. It was alleged that their family was large and they required the disputed accommodation for residential purpose. The application was contested by the petitioners. They filed objections. They, inter alia raised the plea that the applicantrespondents were not the landlords. Har Narain Lal Srivastava had executed a will on 3rd July, 1982 and thereby created a trust. The will set up by Ramji Lal dated 15th July 1984 was fictitious. The petitioners have filed suit No. 20 of 1988 under Section 92 of the Code of Civil Procedure for declaration that the disputed property is a trust property and for appointing the trustees. The Prescribed Authority recorded finding that Har Narain had executed a Will dated 15th July, 1984 with the result that the previous Will was cancelled. His nephew had validly executed saledeed in favour of the respondents and the need of landlord was bona fide and genuine. On a comparative hardship it was found that in case the application is rejected the landlord shall suffer greater hardship. The petitioners filed appeal against the said order under Section 22 of the Act. Respondent No.1 dismissed the appeal by the impugned order dated 1651997.

Learned Counsel for the petitioner has assailed the findings recorded by respondents 1 and 2 that the saledeed executed by Ramji Lal was valid and there was relationship of landlord and tenant between the petitioner and the respondents. The basic question was whether Har Narain Lal had executed the Will dated 15th July, 1984 in favour of his nephew Ramji Lal, There was no dispute that Har Narain Lal had executed a registered Will on 3rd July, 1982 thereby creating a trust in the name of Har Narain lal Krishna Devi "Crust and bequeathing his two properties in the trust namely, house No. 542 Neta Nagar, Nai Basti Kydganj, Allahabad, which is subject matter in the present writ petition and house No. 16/135, Sohbatia Bagh, Allahabad. He named three trustee namely, (1) Lalji Sahai Srivastava as Managing Trustee (2) Vindhyabasini Prasad and (3) Ramji Lal his nephew. Ramji Lal claimed that Har Narain Lal had executed a Will on 15th July 1984 revoking his previous will and bequeathing the property in dispute in favour of his nephew Ramji Lal. In this will the attesting witnesses were Lalji Sahai Srivastava, Bindhyabasini Prasad (sic). These persons were trustees in the Will dated 3rd July, 1982. Lalji Sahai Srivastava filed an affidavit before the Prescribed Authority stating that he attested the Will dated 15th July, 1984, and it was duly executed by Har Narain Lal. The Prescribed Authority as well as Appellate Authority placed reliance upon the affidavit of Lalji Sahai Srivastava and held that the execution of the Will dated 15th July, 1984 was true. Ramji Lal, after death of Har Narain Lal, applied for obtaining succession certificate before the Court which was granted in his favour. Ramji Lal sold the disputed property to respondents 3 and 4.

Learned Counsel for the petitioner contended that the execution of the Will dated 15th July, 1984 was not proved. Lalji Sahai Srivastava had lodged an FIR on 3181984 with the police that he has lost the Will. His conduct indicates that the alleged Will dated 15th July, 1984 was not executed. This aspect has been considered by respondents 1 and 2. It was held that a photostat copy of the FIR dated 2181984 has beer; filed and no reliance can be placed on it. The petitioners also filed a copy of the entry made in the register of the police indicating that an FIR was lodged on 2811984 but this could have been manipulated otherwise by any person. Lalji Sahai Srivastava filed affidavit before the Prescribed Authority stating that he was attesting witness of the Will dated 15th July, 1984 and it was executed by Har Narain Lal. Lalji Sahai Srivastava was one of the trustees in the trustdeed dated 3rd July, 1982 and no reason was stated as to why he acted against his own interest. Bindhyabasini Prasad was another trustee but he also never raised any dispute that the trust was not in existence and the Will dated 15th July, 1984 was fictitious. In fact, he has been shown as one of the attesting witnesses of the Will dated 15th July, 1984.

Learned Counsel for the petitioner urged that Appellate Controller of Estate Duty passed an order on 14111985 in an appeal which was filed by Har Narain wherein a mention has been made that Har Narain had created a trust on 3rd July, 1982. A copy of the order has been annexed as annexure2A to the writ petition. This shows that Har Narain Lal after death of his wife on 1241981 challenged thedemand of the Estate Officer, demanding estate duty of theproperty of his wife Smt. Krishna Devi. The Estate Officer passed an order on 4111985 levying estate duty of Rs. 1700/. Har Narain Lal filed an appeal against the said order. There was no dispute before the Appellate Controller of Estate Duty as to whether Har Narain Lal had executed the Will on 3rd July, 1982. The Appellate Controller had not decided the said controversy. It is not disputed that Har Narain Lal had not executed the Will dated 3rd July 1982. The subsequent Will dated 15th July 1984 itself mentions that the earlier Will dated 3rd July 1982 is being cancelled. The executant had given the reasons for cancellation of the Will dated 3rd July 1982 in the Will dated 15th July 1984. Considering the entire facts and evidence on record the Prescribed Authority recorded a finding that Har Narain had executed a Will in favour of his nephew on 15th July 1984. This finding has been affirmed by respondent No. 1 and I do not find any manifest illegality in the findings recorded by the respondents 1 and 2. It is also relevant to note the conduct of the petitioner. Har Narain Lal was residing on the first floor of the house in dispute. The petitioner was residing on the ground floor. On the death of Har Narain Lal the petitioners occupied the first floor portion in which Har Narain Lal was residing. An application for release of the first floor portion was filed by respondent No. 3 on the allegation that he had purchased the property and after his death he was entitled to occupy the said house. The Rent Control and Eviction Officer declared the first floor portion as vacant. The petitioner filed writ petition No. 19924 of 1989 challenging the order of the Rent Control and Eviction Officer dated 2951989. In the writ petition he claimed that after death of Har Narain Lal he succeeded to his interest and is owner of that portion of the property. Paragraph 5 of the writ petition reads as under:

That the petitioner and his brother are the sole surviving heirs of the deceased owner of the house in dispute and after his death having become entitled to its possession are in possession and no unauthorised occupant alleged such as Luxmi Pati "IHpathi has ever been in possession."

Learned Counsel for the petitioner contended that the averments were incorrectly made under some misapprehension by the Counsel for the petitioner. The petitioner in the said writ petition had obtained the stay order and subsequently the writ petition was dismissed in default.

The second submission of learned Counsel for the petitioner is that there was dispute as to whether Har Narain Lal had executed a Will on 15th July, 1984 and it involved the determination on the question of title to the disputed property. The Prescribed Authority had no jurisdiction to decide the question of title. He has placed reliance upon the decision �15. Victor v. District Judge, Bareilfy and others, 1978 ALR 769, wherein the tenant not only denied the relationship of landlord and tenant but claimed the ownership of the property in himself. There was serious dispute about the title between the parties. The Court made the following observations:

"There is nothing in the Act which deprives a Court, dealing with an application under Section 21, to decide a question of title when raised. However, it appears to me that the Court dealing with an application under Section 21 of U.P. Act No. 13 of 1972 being a Court of limited jurisdiction did not have the jurisdiction or authority to decide a complicated and intricate question of title if the same arises for decision before him. If a question of title is decided incidently for the purpose of deciding the chief point involved, there can be no objection to such a decision but where as here, the substantial object of respondent No. 2 was to get the decision of her title through the application filed under Section 21 of U.P. Act [No. 13 of 1972 the same has to be objected to and cannot be permitted."

Similar view taken in Smt. Kailashwati v. IVth Addl. District Judge and others, 1980 ARC 388. A Division Bench of this Court in Ram Nath Mishra v. Prescribed Authority and others, 1984 (2) ARC 227 held that under Section 21 of U.P. Act No. 13 of 1972 the Prescribed Authority is under a legal duty to determine a question of title incidently to find out as to whether there is relationship of landlord and tenant between the applicant and opposite party in an application submitted before it under Section 21 of the Act. It is settled law that the Prescribed Authority has jurisdiction to decide a question of title incidently to find out as to whether there is relationship of landlord and tenant between the parties. The Prescribed Authority is not precluded from exercising its jurisdiction under Section 21 of the Act whenever the tenant raises an objection regarding the title of the applicant to the disputed property. The Prescribed Authority can examine the matter on merits and if it finds that there is evidence which justifies the claim of the applicant he can proceed to decide the matter regarding question of title incidently. In the present case, it has been found that respondents 3 and 4 formerly purchased the disputed property from RamjiLal, who had succeeded the interest of Har Narain Lal, The petitioners did not raise any dispute before the Prescribed Authority that they were not tenants of Late Har Narain Lal,

The last submission of learned Counsel for the petitioner is that the Prescribed Authority should have stayed the proceedings under Section 21 of the Act and referred to the various litigations between the parties arising out of the suit No. 20 of 1988 filed by the petitioners under Section 92 of the Code of Civil Procedure. The petitioners had filed suit No. 20 of 1988 under Section 92 of the Code of Civil Procedure on the allegation that Har Narain Lal had executed a Will dated 3rd July, 1982 whereby he created a trust bequeathing property No. 542, Neta Nagar, Kydganj, Allahabad, and house No. 16/135 Sohbatia Bagh, Allahabad. He prayed that the trustees be appointed. The suit was dismissed by the Trial Court on 14121995 on the ground that it was not maintainable. The petitioners filed first appeal No. 41 of 1986 and the appeal has been admitted and is still pending. Respondents 3 and 4 had filed suit No. 12 of 1989 for recovery of arrears of rent, ejectment and damages for use and occupation against the petitioner. The petitioner had filed application under Section 10, CPC for staying the proceedings. The Court, in suit No. 20 of 1988, stayed the proceedings. But after the suit was dismissed by the Court on 14121995, the stay order was also recalled. This Court while admitting first appeal No. 41 of 1986 made observation that the petitioner can file application for stay of the proceedings of suit No. 12 of 1989. On the application filed by the petitioner before the Judge, Small Causes Court, in suit No. 12 of 1989 further proceedings in suit were stayed. The petitioner had also filed an application for stay of the proceedings before the Prescribed Authority initiated before him under Section 21 of the Act. The Prescribed Authority rejected the application on 16121996. The petitioner filed revision against the said order before the District Judge. The Revising Authority dismissed the revision against the said order. The petitioner filed writ petition No. 4490 of 1997. This Court dismissed the writ petition. It is urged that this Court dismissed the writ petition on the basis that respondents 3 and 4 had filed writ petition No. 27195 of 1996 for expeditious disposal of the case pending before the Prescribed Authority under Section 21 of the Act. The High Court passed the order to decide the application within four months. In view of the said order the subsequent writ petition filed by the petitioner was dismissed. It is, however, not denied that the Court declined to stay the proceedings before the Prescribed Authority. The petitioner cannot now urge that the Prescribed Authority should have stayed the proceeding till the first appeal No. 41 of 1996 is decided. The question in the first appeal is limited one, namely, whether the suit filed by the petitioners under Section 92 of the Code of Civil Procedure was maintainable. The question of title is not to be decided, in the suit filed by the petitioner under Section 92 of the Code of Civil Procedure.

In view of the above discussions there is no merit in this writ petition and it is accordingly dismissed.