MATTERS UNDER ARTICLE 227 No. - 181 of 2023
Petitioner :- Smt. Sharda Devi And Another
Respondent :- District Judge Hardoi And 8 Others
Counsel for Petitioner :- A.Z. Siddiqui, Sunny Singh
Counsel for Respondent :- Sanjay Kumar Srivastava
Hon'ble Manish Mathur,J.
1. Heard Mr. A.Z. Siddiqui, learned counsel for petitioners and Mr. Sanjay Kumar Srivastava, learned counsel for opposite party no.3.
2. Vide order date 17.01.2023, notices to opposite parties 1, 2 & 4 to 9 being merely proforma in nature was dispensed with.
3. By consent of learned counsel for parties and since pleadings are already complete, petition is being decided at the admission stage itself.
4. Petition under Article 227 of the Constitution of India has been filed assailing judgment and order dated 26.05.2022 passed in P.A. Suit No.01 of 2015 instituted by opposite party no.3 against petitioners for ejectment and arrears of rent and damages. The appellate judgment dated 15.12.2022 passed in Misc. Civil Appeal (Rent) No.13 of 2022 whereby the judgement of Prescribed Authority has been upheld is also under challenge.
5. Learned counsel for petitioner submits that the property in question which was residential in nature was earlier in the coparcenership of one Bhola Nath, Smt. Raj Rani and Prahlad Prasad. It is submitted that during the life time of Bhola Nath, the parties were settled in their own portion of the aforesaid property and the predecessor in interest of petitioners, Jai Narain Singh Kushwaha was inducted into the property. It is submitted that there never existed any Landlord-Tenant relationship between Bhola Nath and Jai Narain Singh Kushwaha. It is further submitted that subsequently in 1958, predecessor in interest of petitioners, Jai Narain Singh Kushwaha purchased the property in question from Bhola Nath by means of an oral sale and ever since, the predecessor-ininterest of the petitioners is in possession of the property in question as owner.
6. It is submitted that subsequently, the petitioners were surprised to receive notice under Section 106 of the Transfer of Property Act sent by opposite party no.3 indicating therein that he is the owner in possession of the property concerned requiring ejectment and arrears of rent and damages from the petitioner. It is also submitted that subsequently application under Section 21 (1) (a) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as U.P. Act No.13 of 1972) was filed by opposite party no.3 against petitioners seeking release of the property on the ground of bonafide need. It is submitted that petitioners put in appearance in the aforesaid proceedings and filed their written statement specifically denying any Landlord-Tenant relationship between the petitioners and opposite party no.3. Attention has been drawn to additional plea taken in written statement to the effect that the property in question was in possession of Late Mr. Jai Narain Singh Kushwaha and after his demise, petitioners being his heirs are in possession over the property concerned in succession. Plea with regard to oral sale of the property between Bhola Nath and Jai Narain Singh Kushwaha has also been adverted to. Learned counsel has also drawn attention to the pleadings taken in written statement to the effect hat an alternative plea of adverse possession has also been taken by petitioners in the written statement.
7. Learned counsel for petitioner as such submits that once a specific plea has been taken by petitioner-defendants that they were not tenants in the property in question and were in fact owners of the property, the appropriate action required to be taken by Prescribed Authority was to have returned the plaint for presentation in appropriate proceedings before competent court. It is also submitted that the Prescribed Authority as well as appellate authority were required to have addressed the issue of title as claimed by petitioner-defendants as incidental to the main issue but issue regarding Landlord-Tenant relationship has been decided in a cursory manner by the courts only basing their decision on the alleged sale deed dated 01.10.1986 said to have been executed in favour of opposite party no.3-plaintiff without any adjudication with regard to Landlord-Tenant relationship between the two. It is also submitted that in terms of Section 3(j) of U.P. Act No.13 of 1972, the concept of ‘landlord’ is entirely different from the concept of owner of the property and as such the authorities while delivering the judgments were required to address the said issue raised by petitioner-defendants. It has also been submitted that the alternative plea of adverse possession has also been decided in a cursory manner.
8. Learned counsel for petitioner has also laid emphasis to the fact that issues numbered 2 and 3 framed by the Prescribed Authority pertaining to bonafide need of the landlord and comparative hardship have also not addressed the pleadings and grounds raised by petitioner-defendants. Learned counsel has adverted to a decision of Hon'ble the Supreme Court in Mahabir Prasad and others v. Ram Phal, reported in (1988) 4 SCC 194 and a Division Bench judgment of Delhi High Court in Naeem Ahmed v. Yash Pal Malhotra (Deceased) through LR's and another, reported in (2012) 9 AD (Delhi) 138 to buttress his submissions.
9. Learned counsel appearing on behalf of the answering opposite party has refuted the submissions advanced by learned counsel for petitioner with submission that in the application filed under section 21(1)(a) of U.P. Act No. 13 of 1972, a specific plea has been taken that petitioner-defendants were tenants of the property in question since the time of Bhola Nath whereafter a suit for partition numbering Regular Suit 6 of 1960 was filed between the co-parceners of the property in which preliminary decree was also issued on 24.04.1961 with final decree being passed on 27.04.1974. It is submitted that at the time of passing of the preliminary decree, the said Bhola Nath was very much alive and was a party to the proceedings and has never mentioned the fact that he has ever executed any oral sale of property in question in favour of Jain Narain Singh Kushwaha. It is further submitted that in pursuance of the final decree dated 27.04.1974, the portion of property in question was partitioned and fell in share of Smt. Raj Rani who by means of a registered sale deed dated 01.10.1986 transferred the aforesaid property in favour of answering opposite party plaintiff. It is also submitted that neither final decree dated 27.04.1974 nor the registered sale deed dated 01.10.1986 has ever been challenged by anyone and the same has therefore attained finality.
10. Learned counsel as such submits that it is in terms of Section 109 of the Transfer of Property Act that answering opposite party-plaintiff has derived not only ownership but also rights of lessor over the property in question and would therefore be deemed to be a ‘landlord’ in terms of Section 3(j) of U.P. Act No.13 of 1972. It is also submitted that in terms of the Transfer of Property Act, there cannot be any sale of immovable property by an oral sale and as such also the courts below have correctly held that the petitioner-defendants have failed to prove any oral sale said to have been executed in favour of their predecessor-in-interest in year 1958. In the alternative, it is submitted that even otherwise a sale deed of immovable property is compulsorily required to be registered under Section 17 of Registration Act, failing which no such deed can be taken into evidence. Learned counsel has further submitted that the petitioner-defendants have also failed to prove their alternative plea of adverse possession and in such circumstances, the courts below were right in holding a Landlord-Tenant relationship between the two as well as finding recorded on bonafide need and comparative hardship since the petitioner-defendants were already in possession of an alternative accommodation in the same city. Learned counsel has adverted to the judgment of Hon'ble Supreme Court in Gopi @ Goverdhannath (d) by LRs & ors v. Sri Ballabh Vyas, [SLP No.27679 of 2018, decided on 22.09.2022] decisions of this Court in Om Prakash Yadav v. Bal Deo Dass Yadav, reported in MANU/UP/3190/2011; Dharam Das Gupta v. VIIIth Additional District Judge, Varanasi and others reported in 1992 S.C.D. 381; and Ram Swaroop v. District Judge, Hardoi and others, reported in 1985 AWC 434 to buttress his submissions.
11. Upon consideration of submissions advanced by learned counsel for petitioner and upon perusal of material on record, it appears that the aforesaid Application under Section 21(1)(b) of U.P. Act No. 13 of 1972 has been filed by opposite party no.3 claiming to be landlord of the property in question and describing petitioner-defendants as tenants in the property. As indicated herein above, the answering opposite party-plaintiff has claimed that the property in question was in coparcenership and suit for partition was filed in year 1960 whereafter a final decree was passed on 27.04.1974 whereafter the property in question fell in the share of Smt. Raj Rani who subsequently executed a registered sale deed in favour of answering opposite party-plaintiff on 01.10.1986.
12. The Prescribed Authority framed three issues for determination with issue no.1 pertaining to question of Landlord-Tenant relationship between the two; issue no.2 pertaining to bona fide need of applicant and issue no.3 pertaining to comparative hardship. All three issues have been decided in favour of plaintiff.
13. From a perusal of judgment and order dated 26.05.2022, it is evident that the Prescribed Authority has held the answering opposite party-plaintiff to be owner in possession of the property in question in pursuance to the registered sale deed dated 01.10.1986 and on that basis it has derived a conclusion that the answering opposite party-plaintiffs would be deemed to be landlord of the property. Issue of the petitioner defendants being tenants in the property in question has been dealt with in the manner that first there could not have been any oral sale deed as claimed in 1958 particularly since petitioner defendants has failed to prove any such alleged sale; and secondly, on the ground that admittedly the predecessor in interest of the petitioner-defendants was inducted into property in question by Bhola Nath and the petitioner-defendants have failed to indicate the capacity in which they were inducted in the property in question and has therefore drawn an inference that the predecessor in interest of petitioner-defendants could have been inducted in the property in question only as tenant and therefore tenancy as such would devolve upon the petitioners. The Prescribed Authority has also recorded a finding that the petitioner-defendants have been unable to prove their case of adverse possession.
14. With regard to bonafide need, the Prescribed Authority has recorded a finding that as defendants in their written statements have clearly admitted the fact that defendant no.2 has already purchased a residential house in the same city, therefore they would be precluded from challenging the bonafide need of plaintiff-opposite party. Once the bonafide need was found to be in favour of plaintiff-opposite party, the aspect of comparative hardship has also been decided in his favour.
15. The appellate court in in its judgment and order also framed the same points of determination as the Prescribed Authority with additional point as to whether the judgment and decree passed by the court below required any modification or change. A reading of the judgment indicates that the reasoning given by the Prescribed Authority in its judgment and order has been virtually followed by the appellate court.
16. From a perusal of aforesaid factors, the following questions which arise for determination are as follows:- (a) Whether there existed any Landlord-Tenant relationship between the answering opposite party-plaintiff and petitioner defendants or the plaintiff-defendants had an independent right of ownership over the property in question as also the issue pertaining to adverse possession? (b) Whether the courts below have decided the issue pertaining to bonafide need and comparative hardship in the correct perspective and as per U.P. Act No.13 of 1972? Question (a) Whether there existed any Landlord-Tenant relationship between the answering opposite party-plaintiff and petitioner-defendants or the plaintiff-defendants had an independent right of ownership over the property in question as also the issue pertaining to adverse possession?
17. With regard to aforesaid question, it is noticed that in the plaint, it has been specifically averred that the predecessor in interest of petitioners, i.e. Raj Narain Singh Kushwaha was a tenant in the property in question and paying a rent of Rs.33/- per month to Smt. Raj Rani and upon his demise petitioner defendants succeeded to the tenancy and continued in possession over the property in question in the same capacity. It has also been stated that plaintiff-answering opposite party attained ownership over the property in question by means of registered sale deed dated 01.10.1986 executed by Smt. Raj Rani in their favour. In written statement, while it has been admitted that the predecessor in interest of petitioner-defendants Jai Narain Singh Kushwaha was in possession of the property in question and after his demise, the petitioner-defendants succeeded to possession over the property in question but the aspect of their being tenants in the property has been denied and in fact it has been stated that erstwhile owner of the property Bhola Nath had inducted Jai Narain Singh Kushwaha over the property in question since they were great friends and subsequently an oral sale deed was executed between Bhola Nath and Jai Narain Singh Kushwaha whereby predecessor in interest of petitioners obtained ownership rights over the property in question. The aspect of execution of registered sale deed dated 01.10.1986 has been denied and in the alternative a plea has been taken with regard to adverse possession over the property in question vis-a-vis plaintiff-opposite parties.
18. With regard to aspect of determination of ownership over the property in question, Hon'ble the Supreme Court in Appolo Zipper India Ltd. v. W. Newman & Company Limited, reported in (2018) 6 SCC 744 has held that in proceedings under Rent Control, the aspect of title over the property cannot be decided as a main issue although the same may be seen as incidental for determination of the question of landlord of the property. It is in keeping with this aspect that the courts below have adverted to submissions of petitioner-defendants claiming ownership rights over the property in question.
19. Section 54 of the Transfer of Property Act, 1882 clearly defines 'sale' as well as the aspect as to how a sale is required to be made and clearly indicates that a sale as contemplated under Section 54 of the Act of 1882 can be only by means of a registered instrument in case of a immovable property. The concept has also been defined as a transfer of ownership in exchange for a price paid or promised or part-paid and partpromised. As such, it is evident that for a sale to have taken place in terms of Section 54 of the Act, there should not only be a registered instrument but there should be adequate consideration also paid for transfer of ownership in terms thereof.
20. Section 17 of the Registration Act,1908 particularly provides the manner in which an instrument of transfer of immovable property is required to be made. The said provision also contemplates that an instrument not duly stamped and registered in terms thereof would be inadmissible as evidence.
21. In contemplation of the aforesaid aspect, it is evident that a sale of immovable property can take place only by means of a registered instrument duly executed between the parties for a valid consideration. In the present case, the aspect of ownership has been taken as a plea by petitioner-defendants on the ground of verbal sale having been executed between Bhola Nath and Jai Narain Singh Kushwaha. Such a concept of transfer of property by sale is alien to Section 54 of the Transfer of Property Act and as such in the considered opinion of this Court, prescribed as well as appellate authority cannot be said to have erred in recording a finding that petitioner-defendants have failed to prove their prima facie title or ownership over the property in question while plaintiffs were able to do so. Until and unless the petitioner-defendants could have prima facie substantiated their pleading of title as per law, there was no occasion for the prescribed Authority to have returned the plaint for declaration of title.
22. The only provision which permits oral transfer of property is indicated in Section 9 of the Transfer of Property Act but the same states that the transfer of property may be made without writing in every case in which a writing is not expressly required by law. In the present case, it is evident that by virtue of Section 54 of the Transfer of Property Act, a specific transfer of property by means of a registered instrument is mandatory and therefore the provisions of oral transfer as envisaged under Section 9 of the Transfer of Property Act would be inapplicable.
23. Learned counsel for petitioner has laid much emphasis on the fact that title or ownership of the property in question would not automatically result in the aspect of plaintiff becoming a landlord of the property since the two concepts are different in nature and has particularly submitted that since the plaintiffs failed to provide any rent receipt executed between plaintiffs and defendants or predecessor in interest of defendants, there cannot be any Landlord-Tenant relationship between them. It has also been submitted that the aspect of Landlord-Tenant relationship as envisaged under Section 3(j) of U.P. Act No.13 of 1972 has not been considered by the courts concerned.
24. With regard to aforesaid submissions, it does not appear that any rent receipts were produced during course of proceedings by plaintiffs. Nonetheless, the aspect of plaintiffs being landlord over the property in question is required to be considered in terms of Section 3(j) of U.P. Act No.13 of 1972, which is as follows: "S.3(j) "landlord", 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, of such person"
25. A perusal of the aforesaid definition clearly indicates that landlord in relation to a building would be a person to whom rent is or would be payable and includes the agent or attorney of such person. The concept of landlord as such is quite distinct from that of owner of the property in question. Upon applicability of definition of landlord in the present case, would indicate that it is admitted between the parties that Bhola Nath was a coparcener of the property in question. It is also evident from record that a partition suit had been instituted in 1960 between coparceners of the property in question including Bhola Nath which resulted in final decree dated 24.04.1974 having been passed whereunder, property in question is said to have come into share of Smt. Raj Rani. The petitioner defendants have not denied the aspect of aforesaid suit having been instituted and resulting in final decree so passed. It is also admitted that there was no challenge raised to the registered sale deed dated 01.10.1986 executed by said Smt. Raj Rani in favour of plaintiffs.
26. Section 109 of the Transfer of Property Act, 1882 pertains to rights of lessor-transferee in the following terms :- "Section 109 - Rights of lessor’s transferee. If the lessor transfers the property leased, or any part thereof, or any part of his interest therein, the transferee, in the absence of a contract to the contrary, shall possess all the rights, and if the lessee so elects, be subject to all the liabilities of the lessor as to the property or part transferred so long as he is the owner of it; but the lessor shall not, by reason only of such transfer cease to be subject to any of the liabilities imposed upon him by the lease, unless the lessee elects to treat the transferee as the person liable to him: Provided that the transferee is not entitled to arrears of rent due before the transfer, and that, if the lessee, not having reason to believe that such transfer has been made, pays rent to the lessor, the lessee shall not be liable to pay such rent over again to the transferee. The lessor, the transferee and the lessee may determine what proportion of the premium or rent reserved by the lease is payable in respect of the part so transferred, and, in case they disagree, such determination may be made by any court having jurisdiction to entertain a suit for the possession of the property leased." 27. The provisions of Section 109 of Transfer of Property Act particularly with regard to rights of transferee as a landlord has been dealt with by Hon'ble the Supreme Court in Gopi @ Goverdhannath (d) by LRs & ors(Supra) in the following manner:- "
27. ............................A bare perusal of Section 109 of the Transfer of Property Act would reveal that if a landlord transfers the property leased out or any part of it, the transferee, in the absence of any contract to the contrary, shall possess all the rights of the landlord. Hence, the impact of Ext.P3, in the absence of any contract to the contrary, is that the respondent herein has stepped into the shoes of Smt. Phool Kumari. In terms of Section 109 of the Transfer of Property Act it is clear that attornment by the lessee is not necessary for the transfer of the property leased out to him. Thus, the inevitable consequence of transfer of a leased-out property by the landlord in accordance with law to a third party, in the absence of a contract to the contrary, is that the third party concerned would not only become its owner having title but also would step into the shoes of the vendor as the landlord in relation to the lease holder at the relevant point of time. In such circumstances, the findings of the courts below that there exists jural relationship of landlord and tenant between the respondent and the appellants can only be held as the correct and lawful conclusion in the light of the evidence on record based on the legal position."
28. It is the admitted case of petitioner-defendants that they are claiming through late Jai Narayan Singh Kushwaha who in turn is said to have been inducted into property by Bhola Nath. There is no averment by petitioner-defendants as to the capacity in which they were inducted into the property in question.
29. Since there is no denial that U.P. Act No.13 of 1972 would be applicable in the present case, the status of petitioner with regard to his occupation of the premises in dispute is required to be seen in terms of such statutory provisions. Section 3(a) defines tenant in relation to a building, as meaning a person by whom its rent is payable.
30. The relevant aspect of definition of tenant as such is a person from whom rent is payable whether or not it is actually paid. Petitioner has not been able to indicate capacity in which his predecessor in interest is said to have been inducted but his status would thereafter be covered by virtue of Section 14 of the Act of 1972 which reads as follows:- S.14 "Regularisation or occupation of existing tenants - Notwithstanding anything contained in this Act or any other law for the time being in force, any licensee (within the meaning of Section 2-A) or a tenant in occupation of a building with the consent of the landlord immediately before the commencement of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) (Amendment) Act, 1976, not being a person against whom any suit or proceeding for eviction is pending before any Court or authority on the date of such commencement shall be deemed to be an authorised licensee or tenant of such building."
31. A reading of aforesaid Section makes it evident that any licensee or a tenant in occupation of a building with the consent of landlord immediately before commencement of the Act would be deemed to be an authorized licensee or tenant of such building. It is evident that with the advent of Section 14 of the Act of 1972, the status of petitioner would be that of an authorized licensee or tenant of the building.
32. Once petitioner would be deemed to be a statutory tenant in terms of Section 14 of the Act of 1972, necessarily proceedings for release of building under occupation of tenant in terms of Section 21 of the Act would be maintainable.
33. Considering aforesaid aspects, it is evident that opposite party-landlord was clearly able to make out a prima facie case of being owner-landlord of the premises in question in which petitioner was in occupation as a tenant. Therefore, once opposite party-landlord had been able to prima facie satisfy his status as landlord of the building, there was no question of returning the plaint for declaration of title. Submissions advanced by learned counsel for petitioner contrary thereto are therefore rejected.
34. Even with regard to aspect of adverse possession, Hon'ble the Supreme Court in T. Anjanappa and others v. Somalingappa and another, reported in (2006) 7 SCC 570 has indicated conditions for applicability of such a proposition in the following terms:- "20. It is well-recognised proposition in law that mere possession however long does not necessarily mean that it is adverse to the true owner. Adverse possession really means the hostile possession which is expressly or impliedly in denial of title of the true owner and in order to constitute adverse possession the possession proved must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner's title must be peaceful, open and continuous. The possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the former's hostile action."
35. Upon applicability of aforesaid proposition of law, it would be evident that there is no pleading by petitioner as to when he claimed title adverse to that of answering opposite party and which was brought to notice of landlord. As such, it cannot be said that stand of petitioner of acquisition of title by adverse possession was in any way in denial of the title of landlord and more so that such adverse title was peaceful, open and continuous or that the hostile possession was in the knowledge of the landlord.
Order Date :- 1.2.2023
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