Nandu Lal and others vs Puspa Devi

Rakesh Tiwari,J.

Heard counsel for the parties and perused the record.

The petitioners have challenged the orders dated 2542009 passed by the Additional District Judge Court No.2 Varanasi in Rent Appeal No. 19 of 2009 Nandu Lal and others vs. Smt. Puspa Devi appended as Annexure No.7 to the writ petition as well as the order dated 422009 passed by the Civil Judge (Jr. Divn.), Hawali, Varanasi in P.A. case No. 58 of 2004 Smt. Duija Devi vs. Chhote Lal and others, appended as Annexure no.3 to the writ petition. The petitioners have also prayed for a writ of mandamus for direction to the respondents not to evict the petitioners from house no. 20/25, Pishach Mochan, Nai Pokhari Ward Chetganj District Varanasi.

The facts of the case are that the petitioners claim to be tenant of the house no. 20/25, Pishach Mochan, Nai Pokhari Ward Chetganj District Varanasi since before 1976. The landlady Duija Devi filed a release application under section 21(1)(a) of the U.P. Act No. 13 of 1972 on the ground that the father of the present petitioners namely Chhote Lal was tenant of two rooms at the rate of Rs.200/ p.m. in the aforesaid house. In the year 1976, the family of the landlady was small as she has no issue as such she had adopted one Sanjai who is indulged with anti social activities and now she has become a drug addicted; that is being looked after by one Sagar Pandey and his wife Smt. Puspa Devi who is looking after her as adopted son having four sons and four daughters. The landlady Smt. Duija Devi was ''Buwa'' or sister of the father of Sagar Pandey.

The house in dispute consists of 7 rooms in which there are five rooms in ground floor, a dining hall, two latrine bathrooms. In two of these seven rooms, the petitioners and their family resides. Whereas the landlord alongwith Sagar Pandey and his family are having 4 rooms and a dining room along with two latrine and bathrooms. A room has also given by the landlord to the guard. It was stated in the release application that the family of the landlord is living like animal as there is paucity of space. One of the room has been given by her to the married grand son Gyanu Pandey and in remaining three rooms, unmarried grand daughters, grand sons of the landlady and her adopted son Sagar Pandey along with his wife are residing. When she had requested to the tenant to vacate the house, and to assure her that they will be vacating the house within some time, but they did not do so. Though the petitioners have sufficient source of income for taking another accommodation on rent and as such if the tenant shifts to another tenanted house, he will suffer comparative hardship than the landlady and her family.

During the pendency of the release application, the landlady Duija Devi died on 462006. A substitution application was moved by Smt. Puspa Devi for substituting her name in place of Smt. Duija Devi as she had bequeathed all her property in her name by registered will. The substitution was allowed on 922007 pursuant to the order dated 1722007. After substitution application was allowed, Smt. Puspa Devi filed affidavit setting up need of her family in paragraph nos. 3 to 11 of her affidavit thus :

It may be noted that Smt. Puspa Devi was living with Duija Devi, the erstwhile landlady since 1990 and was looking after her in her old age. Counsel for the petitioners has drawn the attention of the court to Annexure No.4, which is the will executed by Smt. Duija Devi wife of Chinganl Pandey in which it is stated that she had adopted a boy namely Sanjay aged 16 years and brought him up but he has become wayward, a drug addicted and drunkard. Since he is not looking after her and is being looked after by Sagar Pandey,son of her brother Vibhuti Pandey and his wife therefore she has willed the house/property to Puspa Devi wife of Sagar Pandey. The contents of the will relied upon by the petitioners are as under :

The contention of the counsel for the petitioners is that neither Duija Devi nor her substituted heir and legal representative Smt. Puspa Devi has any bona fide need of the accommodation over the tenancy of the petitioners and her family will not suffer any comparative hardship.

Counsel for the petitioners have relied upon para 8 and 9 of the judgement rendered by the Apex Court in Vijay Lata Sharma v. Raj Pal and another reported in [2004(2) ARC 524 which are thus :

"Having considered the rival contentions of the parties, in our opinion, the appeal deserves to be allowed. It is not in dispute that Ramesh Chandra Tewari was the owner of the property. According to appellant, after the death of Ramesh Chand Tewari, the applicants Smt. Kamla (since deceased) and the appellants became the owners. Though the case of respondent no. 2 is that a will was executed by deceased Ramesh Chand Tewari in favour of Thakur Radha Krishnaji Maharaj in February, 1978, the application was made for the first time in 1993 i.e. after 15 years. In our opinion, the learned counsel for the appellant is also right in submitting that even in the written statement filed by the first respondent, the fact that the applicants were landlords was not dispute. In the written statement, it was stated by the respondent that it was not admitted that the property was let out to the first respondent in his individual capacity. According to him, the firm of M/s. Raj Pal and Brothers was the tenant of the property and payment of rent was made on behalf of the firm. It was thus not disputed that the rent was paid to Smt. Kamla Devi and the appellant. Now clause (j) of section 3 of the Act defines "landlord" as a person to whom rent is payable. When the rent was payable and was in fact paid to Smt. Kamla Devi and the appellant, nothing more was necessary. In our opinion, the learned counsel for the appellant is right in submitting that even the Prescribed Authority has not said that the rent was not payable to Smt. Kamla Devi and the appellant or was not paid to them. The Prescribed Authority also "fully" agreed with the argument of the advocate appearing for Smt. Kamla Devi and the appellant that the issue of ownership could not be decided in the proceedings under the Act and the only question was regarding relationship of landlord and tenant. Unfortunately, however, the Prescribed Authority went on to observe that it was the case of applicant (respondent no.2 herein) that the property was bequeathed by deceased Ramesh Chandra Tewari by executing a will in favour of Thakur Radha Krishanji Maharaj. The Prescribed Authority, therefore, stated; "The relation of landlord and Tenant is not proved only by accepting landlord or by paying the rent by tenant. It has to be seen who become landlord after the death of earlier landlord. If this property had been let out by Smt. Kamla Devi etc. to the present tenant, then the matter would have been different. When the earlier landlord has died then after his death who became the real landlord, if in dispute, this can be finally decided by the Court only. The tenant has no right to finally decide this question by accepting one party as landlord or by paying him rent."

In our view, in the facts and circumstances as mentioned in the release application and also the stand taken by the tenant in written statement and keeping in view the definition of "landlord" in section 3(i), respondent no. 2 can neither be said to be necessary nor proper party to the proceedings. The question of title cannot be decided by the Prescribed authority under the Act. The orders passed by the Prescribed Authority as well as the High Court, therefore, deserves to be quashed and set aside."

The petitioners have also relied upon para 12 of the judgement rendered by the Apex court in L.M. Trivedi v. IIIrd Addl. District Judge, Allahabad reported in ARC, 1991(1) which reads thus :

In regard to the third submission made by the learned counsel section 21(7) of the Act is relevant which reads as follows :

"Where during the pendency of an application under clause (a) of subsection (1), the landlord dies, his legal representatives shall be entitled to prosecute such application further on the basis of their own need in substitution of the need of the deceased."

It has also been submitted by the counsel for the petitioners that Sagar Pandey does not fall within the definition of the ''family'' as given in section 3(9) of the Act.

Per contra, contention of the counsel for the respondent is that Smt. Duija Devi had set up the need in the release application not only for herself but also for the family of Sagar Pandey. Duija Devi claimed that she is living in one room and room has been given to the married daughter of Sagar Pandey who is living with her in her possession. In the tenanted rooms Sanjai Pandey and his wife are living in which her unmarried grand sons and grand daughters of Duija Devi. Smt. Puspa Devi had also filed affidavit setting up her need for the accommodation in dispute in paragraph 2 to 11 quoted above, on the ground that her need was bona fide .

It appears from record and after hearing counsel for the parties that Chhote Lal, father of the petitioners was declared to have met a civil death; that one of the son of Chhote Lal namely Hazari Lal has constructed his own house no. C20/81 Nai Basti, Pishach Mochan, Varanasi where he is residing. It also appears from record that the petitioners acknowledged Smt. Puspa Devi as his landlady. From contention of the counsel for the petitioners it is also apparent that the only ground for objection was that Smt. Duija Devi, original landlord on the one hand had filed release application on the basis of need for her family of her adopted son Sagar Pandey who willed her property by registered will dated 2441991 in favour of one Sagar Pandey without any assertion to the effect that Sagar Pandey is adopted son of Duija Devi. The prescribed authority after considering the evidence on record vide order dated 422009 allowed the release application. Aggrieved by order dated 422009, the petitioners filed v filed appeal no. 19 of 2009 Nandu Lal and others vs. Puspa Devi. The aforesaid appeal was also dismissed vide order dated 2542009 by the Addl. District Judge Court No.6, Varanasi.

It may be noted that adopted son Sanjay was not taking care of Smt. Duija Devi and become preposterous and drunkard hence she has declined by did not give any property to him but treating Sagar Pandey whose family was looking after her since 1991 as his adoption, bequeathed all her property to his wife Smt. Puspa Devi. The petitioners have already acknowledged Puspa Devi as landlady after the death of original landlady Smt. Duija Devi Hence they cannot deny that the need of Puspa Devi only on the ground that Sagar Pandey, her husband was not infact adopted by her. Any person can will his property of any person and it is not necessary to will it only in favour of real or adopted son/daughter. In the instant case, Smt. Pushpa Devi has been bequeathed her property by Smt. Duija Devi by means of registered will deed which is neither been disputed by any person nor Sanjay, the adopted son. The petitioners have also any locus to dispute the same and Infact they has acknowledged Smt. Puspa Devi as their landlady and hence there is no question of title in involved in the proceedings. Smt. Puspa Devi had also setup her claim of bona fide need and comparative hardship.

The case of Vijai Lata Sharma (Supra) for the reasons does not apply as in the instant case, Smt. Puspa Devi had not only filed affidavit showing the need of the deceased in substituting her need was also clear by the erstwhile landlady Smt. Duija Devi also and even after her death has filed affidavit setting her need by bringing on record her need. The other cases relied upon by the counsel for the petitioners wherein the court has held that the need has to be established by the heirs and also legal representatives do not apply. Similarly the case of L.M. Trivedi (supra) also does not apply in the present case as a perusal of paragraph 12 would show that where during the pendency of an application under sub clause (a) of subsection (1), the landlord dies, his legal representatives shall be entitled to prosecute such application further on the basis of their own need in substitution of the need of the deceased.

In the facts and circumstances of the case, it would have been suffice for her to be substituted as her need had already been pleaded by the erstwhile landlady Smt. Duija Devi. It may be stated that Smt. Puspa Devi was not member and would not come under the definition of ''family'' but can proceed with the release application as she had become landlady pursuant to the registered will deed executed by Smt. Duija Devi in her favour. She being legal representative of Duija Devi was fully competent to carry out the proceeding in the release application and bring it to a logical end by Smt. Duija Devi.

Both the courts below have recorded concurrent findings of facts regarding bona fide need and comparative hardship in favour of Smt. Puspa Devi, the landlady. It has already come on record that one of the family member of Chhote Lal, landlord has acquired the accommodation in his own right hence the explanation to the third proviso of section 21(1) (a) of the Act which provides that "the building is bona fide required either in its existing form or after demolition and new construction by the landlord for occupation by himself or any member of his family, or any person for whose benefit it is held by him, either for residential purposes or for purposes of any profession, trade or calling, or where the landlord is the trustee of a public charitable trust, for the objects of the trust" would come into play and the petitioners/tenants are estopped from taking a plea regarding bona fide need of the landlord in view of this statutory provision.

For all the reasons stated above, the writ petition is dismissed. Interim order, if any, stands vacated.