Ram Prasad vs A.D.J., Court No.3 and Others

Sudhir Agarwal, J.—Heard Sri Gautam Chaudhary, learned counsel for the petitioner and Sri P.K. Rajput, Advocate holding brief on behalf of Sri P.P. Singh, learned counsel for respondents.

This writ petition is directed against the judgment and order dated 20.09.2012 passed by Additional District Judge, Court No. 5, Bulandshahar in Rent Control Appeal No. 9 of 2004. The Appellate Court has set aside the judgment and order dated 15.07.2004 passed by Prescribed Authority/S.C.C. Court, Bulandshahar in Rent Control Case No. 27 of 1999 filed by respondentlandlord under Section 21(1)(a) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the "Act, 1972"). The Appellate Court has allowed landlord''s application and has released the accommodation in favour of landlord directing the petitionertenant to vacate the premises in dispute.

It appears that before Trial Court the tenant took a plea that the accommodation in question, which is a shop, in partition proceedings has gone to the share of some other person in the family of landlord than respondentlandlord who filed application under Section 21 (1)(a). The Trial Court relying on those partition proceedings rejected landlord''s application observing that shop in question not being proposed to be given in his share, the application for release of application on the ground of personal need on behalf of such landlord is not permissible in law. This finding, however, has been reversed by Appellate Court vide impugned judgement dated 20.09.2012.

Before this Court also learned counsel for the petitioner could not dispute that partition proceedings though are undergoing between respondentlandlord and other family members but he also simultaneously admitted that same are still in the process of adjudication and have not attained finality. No final decree has been passed in respect to property subject to partition between various family members and respondentlandlord. That being so, it cannot be doubted that every joint owner/coowner is owner of entire property unless it is divided by metes and bounds as a result of partition between members of family becoming final. So long as partition proceedings are going on and have not attained finality, it cannot be said that proposed shares between members can be treated to be the actual division by metes and bound of the share as proposed and can be given effect to. The Trial Court, therefore, in absence of any finality attained in partition proceedings between respondentlandlord and his family members, clearly misread and misdirected itself to proceed by treating the proposed sharing as to be a final share liable to be acted upon by it and this finding being wholly illegal and perverse has rightly been set aside the Appellate Court.

Learned counsel for the petitioner has relied on the decisions of Apex Court as well as this Court in M.M. Quasim Vs. Manohar lal Sharma, 1981 (3) SCC 36; S.K. Sattar SK. Mohd. Vs. Gundappa Amabadas, 1996(6) SCC 373; Sheel Vs. Firm Prahlad Rai Prem Prakash, 2002(3) SCC 375; Smt. Sughra Begum Vs. Sri Ram and others, 1983(2) ARC 143; and, Om Prakash Vs. Prescribed Authority, Saharanpur and others, 1998(2) ARC 335 but when pointed out, he could not dispute that in none of the aforesaid authorities it was said that even if there is no final partition/division of share between various members of family yet a tentative or proposed share in anticipation of its finality can be given effect to. Therefore, none of the authorities cited above help the petitioner.

In the writ petition also there is no averment that division/partition between family members of respondentlandlord and himself has become final. In these circumstances, the impugned appellate judgment cannot be faulted either in law or otherwise in any manner. In absence of point out any apparent error or manifest illegality in the impugned judgment, no interference can be made by this Court in exercise of its power under Article 226 of the Constitution of India.

The scope of judicial review in these matter under Article 226/227 is very limited and narrow as discussed in detail by this court in Writ Petition No. 11365 of 1998 (Jalil Ahmad Vs. 16th Additional District Judge, Kanpur Nagar and others), decided on 30.07.2012. There is nothing which may justify judicial review of orders impugned in this writ petition in the light of exposition of law, as discussed in the above judgment.

I, therefore, find no merit in the writ petition. Dismissed with costs of Rs. 10,0007.