Shyam Narain Pandey (Dead) through LRs. vs Sukhoo & Ors.

S.U. Khan, J.—Sukhoo the landlord filed suit for eviction (SCC suit No. 3 of 1985) as well as release application under Section 21 of U.P. Act No. 13 of 1972 (Rent case No. 25 of 1987). In both the cases Sheo Moorat Pandey (S.M. Pandey) and Shyam Narain Pandey (S.N. Pandey) were impleaded as defendants/opposite parties No. 1 and 2. Suit for eviction was decreed on 1771989 by JSCC/.X A.D.J., Varanasi giving rise to the above revision by Shyam Narain Pandey. Release application was rejected giving rise to the above writ petition by landlord Sukhoo. During pendency of cases Shyam Narain Pandey had died and was substituted by his legal representatives. Building in dispute containing one room, latrine and courtyard on the ground floor and one room on the first floor was admittedly allotted to Sheo Moorat Pandey. Another room en the first floor was also later on taken on rent by the tenant from the previous land lord/owner. Sukhoo purchase the building in dispute on 191981 (saledeed dated 1 91981 was registered on 21 91981). According to Sukhoo the allotment was made in 1963 in favour of Sheo Moorat Pandey on the rent of Rs. 78 per month, however, after giving another room to Sheo Moorat Pandey by the previous owner rent was enhanced to Rs. 100 per month and that Rs. 10 were also payable by Sheo Moorat Pandey as water tax hence total liability was of Rs. 110 per month. Sukhoo in the plaint of the suit also pleaded that Sheo Moorat Pandey paid rent for the months of September, October and November, 1981, however, thereafter no rent was paid. It was also pleaded in the plaint that S.M. Pandey had sublet the accommodation in dispute to S.N. Pandey. Suit was filed after serving notice of termination of tenancy and demand of rent upon Sheo Moorat Pandey.

S.M. Pandey allottee filed written statement completely admitting the case of the landlord. He admitted that he had paid the rent at the rate of Rs. 110 per month of the plaintiff till November, 1981 and thereafter he had sublet the accommodation in dispute to S.N. Pandey.

S.N. Pandey, applicant in the revision, pleaded that he was maternal uncle of S.M. Pandey and he himself got the house in dispute allotted in the name of his nephew (Bhanja) S.M. Pandey and that since the start of tenancy he was residing with S.M. Pandey (Bhanja). S.N. Pandey also pleaded that he had brought up S.M. Pandey his Bhanja and kept him in the house in dispute. He also pleaded that rate of rent was only Rs. 7.50 per month and after taking another room on rent, rent was enhanced to Rs. 10 per month, which was paid to the previous landlord but without any receipt. It was also pleaded that the previous landlord had also initiated eviction proceedings, which failed. He further pleaded that in the year 1969 his relations with his Bhanja S.M. Pandey became strained and S.M. Pandey left the house in dispute and since then he alone was residing therein and S.M. Pandey was having no concern since then with the house in dispute. He also pleaded in the alternative that in case it was not found that since start of tenancy he was the actual tenant then his tenancy stood regularized under Section 14 of the Act as since 1969 he was residing in the house in dispute and paying rent to the previous landlord @ Rs. 10 per month. He also pleaded that he sent reply to the notice of the landlord, which was refused by the landlord. He also sought benefit of Section 20 (4) of U.P. Act No. 13 of 1972 by depositing some amount in the suit.

Court below/JSCC held that allotment was in favour of S.M. Pandey who admitted that he had paid rent until November, 1981 and had obtained receipts. The said receipts were filled before the Court below. S.M. Pandey also admitted that with effect from 2121981 he had sublet the house in dispute to S.N. Pandey. Trial Court also observed that S.N. Pandey did not take up the case that he was the subtenant and that he had actually claimed independent tenancy on the basis of long possession. Trial Court also observed that allotment in favour of S.M. Pandey had never been cancelled and tirnation of vacancy was given to H.C. and E.O. The version of S.N. Pandey that he himself had got the house in dispute allotted in the name of S.M. Pandey was thoroughly disbelieved by the Court below. S.N. Pandey pleaded that he hac1 brought up his nephew S.M. Pandey; if it was so then there was absolutely no reason for getting the house in dispute allotted in the name of his Bhanja S.M. Pandey.

Trial Court also found that it was not proved that S.N. Pandey had paid rent to the previous owner or to the plaintiff.

The Court below therefore concluded that S.N. Pandey was subtenant. In my opinion the finding is quite correct. S.N. Pandey is maternal uncle of allottee tenant S.M. Pandey hence he was fully authorized to reside alongwith S.M. Pandey in the house in dispute however he is not entitled to reside in the house in dispute independently. A relation of a tenant even though not falling within the definition of family member may very well reside alongwith tenant however he cannot reside independently. It is admitted to all the parties that at least since 1981 the allottee tenant S.M. Pandey has completely removed his possession. In view of this the finding of the Court below that S.N. Pandey was subtenant/unauthorized occupant was quite correct. In this regard reference may be made to the authority of Supreme Court in Ganesh Trivedi v. Sunder Devi, 2002 (47) ALR 276 (SC). Even if the admission of S.M. Pandey is ignored, there was sufficient evidence on record to substantiate the finding of the Court below that S.N. Pandey was sub tenant/unauthorized occupant. The Court below also recorded independent finding in that regard.

For subletting being permissible under law written permission of landlord is necessary under Section 25 of U.P. Act No. 13 of 1972. Same was the position under old Rent Control Act i.e. U.P. Act No. 3 of 1947. There being no written permission for the subletting by the landlord, suit for eviction was liable to be decreed on the ground of subletting. Oral permission (even if it is assumed to be there) or inaction of landlord to initiate eviction proceedings for a long time are meaningless. Vide G. Singh v. R.K. Aneja, 2002 (48) ALR 635 (SC) and P.J. Chandy & Ors. v. J.P. Thomas, 2002 (47) ALR 694 (SC).

Trial Court also found that even if it was assumed that since 1969 S.N. Pandey was residing in the house in dispute, he would not become a valid tenant and he would not be entitled for regularization of tenancy under Section 14 of U.P. Act No. 13 of 1972 as he was never recognized as tenant either by the previous landlord or by the plaintiff and he never paid rent. Court below also found that since December, 1981 rent had not been paid.

Learned Counsel for S.N. Pandey the applicant in revision has very vehemently argued that plaintiff executed a document on 21 91981 in which he admitted that he would not evict S.N. Pandey and Shiv Nath Prasad tenant of adjoining property which was also purchased by the plaintiff on 191981 without due process of law. Earlier the said document had been held to be inadmissible in evidence for want of registration by the Court below while decreeing the suit earlier through judgment and decree dated 28 81987. Against the said judgment and decree Civil Revision No. 846 of 1987 was filed in this Court, which was allowed on 2011988. In the said judgment it was held that the documentdated 2191981 did not require registration. In view of the said finding the matter was remanded to the Court below for reconsideration of the whole matter. In the subsequent judgment, which is challenged in this revision the said document was thoroughly considered the JSCC, in para 9 of its judgment. The said document dated 2191981 was numbered as paper No. 35Ka. In the said document it was mentioned that plaintiff had purchased the property through saledeed which was registered or, that date and that he agreed that he would not sell the said property to a nonHindu and he will not evict in illegal manner the previous tenant S.M. Pandey and Shiv Nath Prasad. In the saledeed through which plaintiff purchased the property in dispute it was mentioned that S.M. Pandey was tenant therein. Plaintiff Sukkhoo lodged a report with the Police Station, copy of which was filed as paper No. 78Ga. In the said report, it was stated that by showing revolver and knife he had been made to sign on two blank papers. Court below also held that it was not explained by the defendant S.N. Pandey that what was the reason for Sukkhoo to write the said document on the same date on which he purchased the property and how S.N. Pandey got the same. Court below held that voluntary execution of the said document by plaintiff Sukkhoo was highly doubtful and it was not executed by him of his own free will.

In any case the said document will have to be read alongwith other evidence. On ; the basis of other evidence Court below came to the conclusion that S.N. Pandey was never recognized as tenant by the previous landlord and he never paid any rent to the previous landlord. S.N. Pandey did not take any such plea that by virtue of said document he became the tenant of plaintiff since then. There does not appear to be any possible reason for the plaintiff Sukkhoo to execute the said document on the date of sale. It is not the case of S.N. Pandey that previous owner asked the plaintiff to execute such document. Plaintiff was under no obligation to S.N. Pandey or Shiv Nath Prasad to execute the said document. No reliance can therefore be placed upon the said document. Finding of the Court below in mat regard is, therefore, quite correct.

Accordingly, there is no merit in the revision hence it is dismissed.

Applicant S.N. Pandey is granted six months time to vacate provided that:

(1) Within one month from today he files an undertaking before the prescribed authority to the effect that on or before the expiry of period of six months he will willingly vacate arid handover possession of the property in dispute to the landlords.

(2) For this period of six months, which has been granted to S.N. Pandey to vacate he is required to pay Rs. 6, 000 (at the rate of Rs. 1, 000 per month) as damages for use" and occupation. This amount shall also be deposited within one month before the prescribed authority and shall immediately be paid to the landlord.

(3) Entire decreetal amount due till date shall also be deposited by the tenant within one month from today after adjusting the amount already deposited for immediate payment to the landlord.

It is further directed that in case undertaking is not filed or amount of Rs. 6, 000 and entire decreetal amount due till date is not deposited within one month then tenant shall be liable to be pay damages at the rate of Rs. 2, 000 per month since after one month till the date of actual vacation,

.Similarly, if after filing the aforesaid undertaking and depositing Rs. 6, 000 and entire decreetal amount due till date, the property in dispute is not vacated on the expiry of six months then damages for use and occupation shall be payable at the rate of Is. 2, 000 per month since after six months till actual vacation.

As far as writ petition is concerned, release application was dismissed by prescribed authority on 2891988 and appeal filed against the said judgment and order being R.C. Appeal No. 229 of 88 was also dismissed by II A.D. J. Varanasi on 26101989. The said writ petition has to be allowed on the ground that admittedly S.M. Pandey the tenant did not oppose the release application and be has also not possession. S.N. Pandey has been held in the earlier part of this judgment to be subtenant/unauthorized occupant. He cannot oppose the release application.

Accordingly, writ petition is allowed. Judgment and orders passed the Courts below are setaside arid release application of the landlord is allowed. However, as directed in the earlier part or this judgment for a period of six" months S.N. Pandey shall not titevicted on the conditions mentioned.