Allahabad High Court
Smt. Qamar Ashraf & 2 Ors. (At: 04:00 P.M. ... vs Addl. District Judge Court-1 Lucknow & ... on 18 April, 2013
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 12 A.F.R. Reserved Case :- RENT CONTROL No. - 18 of 2013 Petitioner :- Smt. Qamar Ashraf & 2 Ors. Respondent :- Addl. District Judge Court-1 Lucknow & Ors. Petitioner Counsel :- Durga Charan Mukherjee,B.K. Saxena Respondent Counsel :- Manish Kumar,Anurag Srivastava,Kabir Ahmad Khan Hon'ble Arvind Kumar Tripathi (II),J.
(1) Heard Sri D.C. Mukherjee, learned Senior Counsel assisted by Sri J.P. Mathur, learned counsel for the petitioners and Sri Mohd. Arif Khan, learned counsel for respondent nos. 3 and 4.
(2) Present writ petition under Article 226 of the Constitution of India has been filed against the judgment and order passed by Additional District Judge, Court No.1, Lucknow and prescribed authority/Second Additional JSCC, Lucknow dated 24.1.2013 and 9.8.2012 respectively by which P.A.Case No. 28/2008 Mohd. Faisal Shamshi and ors. Vs. Ishtiyaq Azeem and ors. was allowed and Rent Appeal No. 48/2012 Smt. Qamar Ashraf and ors. Vs. Mohd. Faisal Shamshi and ors. Was dismissed and order and judgment passed by Second Additional JSCC, Lucknow was confirmed.
(3) Admittedly the matter pertains to release of a portion of House No. 143/90Ga situated at Niyamatullah Compound, Niyamatullah Road, P.S. Aminabad, Lucknow (referred as disputed house). The disputed house along with other eastern portion belonged to Smt. Kaneez Fatima Bibi D/o- Ch. Niyamatullah. The controversy starts from here as per petitioner Smt. Kaneez Fatima Bibi has made an oral Hiba in favour of her cousin sister's husband Syed Mohd. Haleem on 4.8.1945 in lieu of love and affection in presence of respective witnesses i.e. Smt. Alia Khatoon (now deceased) and Basheeruddin. The said Hiba was accepted by Syed Mohd. Haleem and since then he was enjoying the disputed house as owner/landlord. The possession was also handed over to Syed Mohd. Haleem by Smt. Kaneez Fatima Bibi on the same date. In the year 1948 Smt. Kaneez Fatima Bibi had migrated to Pakistan where she had acquired Pakistani nationality and later on she died there. In October 1977 Syed Mohd. Haleem died leaving behind him two sons and three daughters as his legal heirs and successors i.e. Ehsaan Azeem(now deceased), Ishtiyaq Azeem, Smt. Qaiser Sultana, Smt. Sarwar Sultana and Smt. Afsar Sultana, they all became the owners and landlords of the disputed house along with other heirs and successors of late Syed Mohd. Haleem.
(4) As per respondents Smt. Kaneez Fatima Bibi made an oral gift in favour of her real sister Smt. Hameeda Bibi and Smt. Kishwar Fatima Ansari became owner of the disputed house after oral gift by Smt. Hameeda Bibi. Smt. Kishwar Fatima Bibi sold the entire house to Mohd. Faisal Shamshi and Mohd. Faiz Shamshi vide sale deed dated 26.5.2005.
(5) On the basis of sale deed dated 26.5.2005 Mohd. Faisal Shamshi and Mohd. Faiz Shamshi started release proceedings under Section 21(1)(a) of U.P.Act No. 13/1972 (later on called as the Act) showing themselves as landlords and treating Smt. Qamar Ashraf, Imtiyaz Azeem and Ishtiyaq Azeem as tenants. The said P.A. Case was registered as P.A.Case No. 28/2008 Mohd. Faisal Shamshi Vs. Ishtiyaq Azeem and ors. The alleged tenants filed their written statement denying all the allegations and denied the relationship of landlord and tenant claiming themselves to the owners of the disputed house. P.A.Case No. 28/2008 was allowed and vide judgment and order dated 9.8.2012 the prescribed authority had released the disputed house in favour of Mohd. Faisal Shamshi and Mohd. Faiz Shamshi. Feeling aggrieved, a rent appeal under Section 22 of the Act was filed before the District Judge, Lucknow bearing Rent Appeal No.48/2012 Smt. Qamar Ashraf and ors. Vs. Mohd. Faisal Shamshi and ors. This appeal was also dismissed on 24.1.2013 by Additional District Judge, Court No.1, Lucknow. Hence, this writ petition.
(6) It was argued by learned counsel for the petitioners is that a title suit was filed by the petitioners in competent civil court for securing their rights through declaration and permanent injunction with the releif that sale deed dated 26.5.2005 is void and has no binding effect on the petitioners. It is still pending and during pendency of this title suit, prescribed authority should not have passed the impugned order. Elaborating the argument it was argued that sole controversy of oral Hiba between the contesting parties is to be adjudicated in accordance with law in this title suit. It was also argued that in release proceedings for proving relationship of landlord and tenant, O.P. No. 3 and 4 had taken shelter of assessment list of the year 1970 in which name of Smt. Hameeda Bibi is shown as owner and the name of Muniruddin Kidwai, Mohd. Haleem and Mohd. Ehsaan Azeem has been shown as occupants. Name of Smt. Hameeda Bibi was first entered in the assessment list for the first time by order dated 9.2.1970 except that there is no documentary or oral evidence to show that there is a relationship between landlord and tenant and between the parties. Smt. Kishwar Fatima Ansari never appeared either in the pending title suit or filed any evidence by way of affidavit to prove the same deed as well as relationship of landlord and tenant. The order dated 18.3.2010 passed by Custodian Journal Enemy Property for India does reveal that on the relevant date, Smt. Kaneez Fatima Bibi was not in possession over the disputed house. Custodian Journal has also not given any finding to the effect that at the relevant time, the disputed house was possessed by Smt. Hameeda Bibi or Smt. Kaneez Fatima Bibi as owner/land lady. It was admitted before the proceedings of Cutodian Journal that Smt. Kaneez Fatima Bibi had migrated to Pakistan.
(7) It was also further argued that both the courts below were fully aware that contesting parties are claiming right and title from common ancestor Smt. Kaneez Fatima Bibi but they willfully ignored and established relationship of landlord and tenant on the basis of municipal entries. By the judgment, both the courts have decided intricate question of title which is not within their jurisdiction.
(8) Learned counsel for petitioner has relied upon the decision of Apex Court in 1997 ACJ 126 (Supreme Court), Smt. Sawarni Vs. Smt. Inder Kaur and Ors., 2004 (56) ALR 695 Vijay Lata Sharma Vs. Raj Pal, and another decision of this Court in 2010 (78) ALR 638 Rajendra Kishore and Others Vs. Additional District Judge Court No.2 and Others.
(9) It was argued from the side of Mohd. Faisal Shamshi and Mohd. Faiz Shamshi that name of Smt. Hameeda Bibi was entered in assessment register which shows that the oral gift in favour of Smt. Hameeda Bibi by Smt. Kaneez Fatima Bibi was act upon. There is no evidence on record to show that Smt. Kaneez Fatima Bibi made an oral gift in favour of Mohd Haleem and he has taken any step to get his name mutated in relevant records. It was also argued that in the proceedings before Custodian Journal, there is a report that the name of Smt. Hameeda Bibi was entered in the assessment register of Nagar Nigam, Lucknow in the year 1970-76 and 1986 and Mohd. Asif Kidwai, Mohd. Tariq Kidwai, Mohd. Salman Kidwai, Mohf. Anwar Jamal all sons of Mohd. Muniruddin, Ehsan Azeem and Iliyaq Azeem both sons of Mohd. Haleem are living as tenant. It was also argued that the Custodian Journal has given a specific finding that from the evidence, it is clear that the whole property was distributed by the owner Justice Choudhary Niyamatullah between his four daughters and son and wife. House No. 143/90 Ga fell in the share of Smt. Kaneez Fatima Bibi and she has transferred the disputed property to her real sister Smt. Hameeda Bibi through an oral gift. It was also held by the Custodian Journal that Smt. Hameeda Bibi has transferred the disputed property to her daughter Smt. Kaneez Fatima Bibi through oral gift.
(10) It was also argued that in view of the clear cut finding given by Custodian Journal, the contention of the petitioners that they are the owners of disputed property has no force.
(11) It was also argued that while deciding the claim of owner landlord, if the tenant pleads himself to be the owner or pleads that a third person is the owner then the prescribed authority has right to determine as to whether the claim made by the tenant is bonafide and based on evidence or has just been taken as a defence of the eviction proceeding. If it is malafide and has just been taken as a defence then the Court will have to give its finding.
(12) Considered the rival submissions made by parties.
(13) Before proceeding with the case it has to be kept in mind that the present proceeding is a petition under Article 226 of the Constitution of India and this Court is not sitting in appeal over the judgment of appellate authority or prescribed authority. The role of this Court while deciding a writ petition is a supervisory jurisdiction and this supervisory jurisdiction extends to keeping all subordinate courts and inferior tribunals within the limits of their authority and to ensure that they obey the law. In other words the jurisdiction is limited to securing that judicial or quasi judicial tribunals or administrative bodies exercising quasi judicial powers do not exercise their powers in excess of their statutory jurisdiction and correctly administered the law within the ambit of the law creating them or entrusting functions to them.
(14) In the cases of Mani Nariman Vs. Firoz AIR 1981 SC. 1994 , Satya Narayan Vs. mallikarjun AIR 1960 SC. 137, State of West Bengal Vs. Atul Krishna Shah (1991) Supp. (1) SCC 414, Prakash Vs. Municipal Corporation to Greater Bombay 1981(2) SCC 304, it has been held that it should not, however, had to be forgotten that in exercising supervisory power, the High Court does not act as a Court of appeal or a Court of error. It will not review, reappreciate or reweigh the evidence upon which the determination of the inferior tribunals purports to be based or to correct errors of fact or even of law and to substitue its own decision for that of the inferior court or tribunal. In the case of Waryam Singh Vs. Amarnath, the Constitution Bench of the Supreme Court and in India Pipes Fitting Company Vs. Fakhruddin Baker AIR 1978 SC. 45, the Apex Court has held that the power under Article 227 is one of the judicial superintendance and cannot be exercised to opposite conclusions of facts, however, erroneous those may be.
(15) In the case of Chandrawarkar Vs. Asha Lata AIR 1987 SC. 117, the Apex Court has observed that " unless there was any grave miscarriage of justice or fragrant violation of law calling for intervention it was not for the High Court under Article 226 and 227 of the Constitution to interfere. If there is evidence on record on which a finding can be arrived at and if the Court has not extracted itself, either on law or own fact, then in the exercise of the power under Article 226 or 227 of the Constitution, the High Court should refrain from interfering with such finding made by appropriate authorities."
(16) In the case of Vijay Lata Sharma Vs. Raj Pal (supra) it has been held that an application for impleadment was made by Thakur Radha Krishna Ji Maharaj Virajman Mandir through its Secretary alleging that the owner has executed a will on February 7, 1978 in favour of Thakur Radha Krishna Ji Maharaj Virajman Mandir bequeathing the property to the temple and hence, it ought to be joined as party respondent. The appellant contested the application containing that no such will was executed by the deceased in favour of the temple and documents were false and fabricated. The prescribed authority allowed the prayer for impleadment against which miscellaneous writ petition was filed which also came to be dismissed by the High Court. Against which Civil Appeal No. 5229 of 2004 was filed before the Apex Court and in that context, the Apex Court has held that the application of title cannot be decided by the prescribed authority under the Act. In the instant case, admittedly, the disputed property was owned by Smt. Kaneez Fatima Bibi and both the parties claimed on the basis of oral will in favour of their ancestors. First oral will is alleged to be executed in favour of Syed Mohd. Haleem by Smt. Kaneez Fatima Bibi on 4.8.1945 and the second will is alleged to be executed in favour of Smt. Hameeda Bibi by Smt. Kaneez Fatima Bibi. A perusal of the record reveals that name of Smt. Hameeda Bibi was entered in municipal records but the petitioner has before the prescribed authority, appellate authority and before this Court, failed to show that whether the oral gift was ever acted upon in his favour. It is no where been stated that on the basis of that oral gift Syed Mohd. Haleem ever tried to get his name mutated over the disputed property. In absence of this, adverse inference can be drawn against the petitioner who claimed to be heirs of Mohd. Haleem.
(17) In the case of Rajendra Kishore and Ors. Vs. Additional District Judge Court No.2 and Ors. (supra) this Court after finding that admittedly Suit No. 319/1982 is still pending for consideration between the parties whether the petitioners are the owners of respondent and the person who is holding a better title, held that Unless and until that is decided, releasing a shop or declaring a vacancy, in my opinion will not be appropriate in the interest of justice to give possession to one of the parties, which still has not yet been decided that who is the owner and landlord of the property in question.
(18) The facts of the case are different from the facts of the instant case. In the instant case title suit was filed during the pendency of the eviction proceeding under section 21 (1),(a) of the Act. So the decision of the case Raj Kumar Gupta Vs. Smt. Sairabano is not applicable or a guiding factor in this case.
(19) Annexure No.9 to the writ petition is an order passed by office of the Custodian of Enemy Property for India dated 18.3.2010. A perusal of that order reveals that one Sri Sufiyan Ahmad of Lucknow has moved an application before office of the Custodian of Enemy Property for India that Smt. Kaneez Fatima Bibi w/o- Justice Choudhary Niyamatullah has gone to Pakistan in the year 1948. So the property be declared as enemy of property. This application was moved on 8.3.2006. Previously vide order dated 7.8.2008, an order was issued from the office of the Custodian of Enemy Property for India that the disputed property be declared as enemy property and the occupants were directed to pay the rent since 10.9.1965. Admittedly, Mohd. Haleem and his family members were residing in the disputed house. But they have nowhere stated themselves to be the owner of the property through oral gift executed by Smt. Kaneez Fatima Bibi, despite notice issued and served upon them.
(20) A further perusal of this order reveals that Mohd. Faisal Shamshi and Mohd. Faiz Shamshi, the purchasers of the property moved a recall application dated 2.12.2008 alleging that no notice was issued and the order was passed only after hearing the occupants of that house. In compliance of this notice it was pointed out by U.P.Nagar Ayukta before the Custodian of Enemy Property for India that the name of Smt. Hameeda Bibi has been entered in the owner list and Mohd. Asif Kidwai, Mohd. Tariq Kidwai, Mohd. Salman Kidwai, Mohf. Anwar Jamal all sons of Mohd. Muniruddin, Ehsan Azeem and Iliyaq Azeem both sons of Mohd. Haleem is entered in that register as occupant on rent. Still the heirs of Mohd. Haleem did not claim themselves to be the owners of the disputed property. The Custodian of Enemy Property for India has in his order dated 18.3.2010 held that the disputed property belonged to justice Chaudhry Niyamatullah and House No. 143/90 Ga fell in the portion of heir of Smt. Kaneez Fatima Bibi and she had gifted the property to Smt. Hameeda Bibi through oral gift.
(21) This conduct of the petitioner goes to show that the plea of their being owner of the house has only been made to wriggle out of the clutches of law and this has no basis and this claim is not bonafide.
(22) In the case of Ram Bhajan Nigam Vs. Hemant Kumar Nigam 2008(1) AWC 867 this Court has held that :
" In my opinion the courts below have incidentally delved upon the question of title in this case for deciding the main issue and have not not decided the question of title as a suit for title for the obvious reasons that the petitioner had failed to establish any case pertaining any case regarding his title."
(23) In the case of D.S. Victor Vs. District Judge, Bareilly and Ors. 1978 ARC 413, this Court has held that:
" As I may not be misunderstood as saying that in no case the question of title can be decided by an authority dealing with an application under Section 21 of the Act, I wish to make it clear that this is a question the decision of which has to differ from case to case. It is not possible to lay down any criterion exhaustively which has to be taken into consideration, while deciding this question. It may however be mentioned that if the authority finds that the question of title of the landlord has been disputed by a tenant with an ulterior motive for the purpose of delaying the disposal, the prescribed authority would certainly be entitled to investigate into title a decide it. In such a case the question of title could be said to have coincidentally arisen for decision. Similarly where a dispute of title raised by a tenant appears to be frivolous, the prescribed authority would be fully competent to decide the same. A plea is said to be frivolous where it appears from bare inspection to lacking is legal sufficiency, and where in view of the facts pleaded it does not present plausible defence."
(24) In view of the above, it is clear that the question of title in the instant case is not a intricate and serious question of title but it is an incidental one and the prescribed authority can while deciding the relationship of landlord and tenant can go into the incidental question of ownership.
(25) In the case of Smt. Sawarni Vs. Smt. Inder Kaur and Ors. (supra) it has been held by the Apex Court that mutation of property in the revenue record does not create or extinguish title nor has it any presumptive value on title. It only enables the person in whose favour mutation is ordered to pay the land revenue in question.
(26) No doubt the mutation in revenue record are not indicative of title but certainly it shows the possession of the person whose name is entered in Nagar Nigam records and also who is liable to pay the taxes etc. This fact will also support the fact of oral gift executed by Smt. Kaneez Fatima Bibi in favour of Mst. Hameeda Bivi as it will show that the oral gift was acted upon.
(27) The effect of mutation has been dealt with in Section 152(2)(3) of Mulla's Principles of Mahomedan Law 19th Edition Bombay, N.M.Tripathi Private Ltd., 1990 is reproduced below :
" (2) Where property is in the occupation of tenants.- A gift of immovable property which is in the occupation of tenants may be completed by a request by the donor to the tenants to attorn to the donee or by delivery of the title deed or by mutation in the Revenue Register or the landlord's sherista. But if the husband reserves to himself the right to receive rents during his lifetime and also undertakes to pay Municipal dues, a mere recital in the deed that delivery of possession has been given to the donee will not make the gift complete.
(3) Where donor and donee both reside in the Property.- No physical departure or formal entry is necessary in the case of a gift of immovable property in which the donor and the donee are both residing at the time of the gift. In such a case the gift may be completed by some overt act by the donor indicating a clear intention on his part to transfer possession and to divest himself of all control over the subject 9 of the gift."
(28) The above provision clearly goes to show that mutation or some overt act done by the donee is an important factor to be considered while making a presumption regarding acceptance of the gift.
(29) In the instant case, there is no mutation in favour of Mohd. Haleem, there is mutation in favour of Smt. Hameeda Bibi since 1970 and Mohd. Haleem or his heirs have nowhere challenged this mutation entry before the appropriate authority. Instead they had tried to get the disputed property declared to be enemy property and thus their conduct shows that they are not the owners through an oral gift by Smt. Kaneez Bibi in favour of Mohd. Haleem.
(30) The finding recorded by the prescribed authority and the appellate authority are based upon evidence and facts of the case. The appellate court has given cogent, convincing and satisfactory reasons in deciding the appeal and this Court cannot substitue its opinion unless it is found that conclusion drawn by appellate court is contrary to the mandatory provision of law or based on inadmissible evidence or arrived at a finding without evidence.
(31) Though, no averment has been made by the petitioner in their writ petition regarding bonafide need and comparative hardship but this factor is also being scrutinized.
(32) A perusal of order dated 7.8.2008 passed by the Office of Custodian of Enemy Property for India shows that before declaring the disputed property as an enemy property, notices were issued to heirs of Mohd. Haleem but they have nowhere objected before the Office of Custodian of Enemy Property for India that they are not owners of the disputed property and vide order dated 7.8.2008, Ehsaan Azeem and Ishtiyaq Azeem were found to be tenants.
(33) A perusal of the application moved before prescribed authority/ Civil Judge Mohan Lal Ganj reveals that it was overt in the question under Section 21(1) (a) that applicants have purchased the aforesaid building for their own use and occupation and at present they and their family members are residing with their parents in House No. 143/90 Ga situated at Niyamatullah Compound, Niyamatullah Road, P.S. Aminabad, Lucknow which is owned by applicants' mother and it consists of five rooms and other amenities on the ground floor and three rooms and other amenities on first floor and the family of the parents of the applicants is comprised of father, mother and two daughters. It has also been mentioned that family of applicant no.1 comprise of applicant Nno.1 himself, wife of applicant no.1 and son of applicant no.2 and family of applicant no.2 comprises of applicant no.2 and his wife. Applicant no.1 and 2 are separate in earning and messing, they also are separate with their parents. It was also submitted that relationship between wives of the applicants and mother of the applicants is not cordial and mother of the applicant is compelling the applicants to vacate the present recital accommodation as soon as possible. In their written statements it has simply been said that contents of para 12 to 17 are not admitted. In the additional pleas not a single word has been uttered regarding this. So an evasive denial is virtually an admission of the facts. Thus, both the courts below were correct in holding that the need for the disputed accommodation is genuine and comparative hardship is also in favour of the petitioners. The findings recorded by both the courts below are based on facts and evidence.
(34) Lastly it was argued that the prescribed authority has not fixed the points of determination while deciding the release application. Hence, the order of the prescribed authority is vitiated.
(35) A perusal of the order of the prescribed authority reveals that though no points of determination were framed yet the prescribed authority has categorically discussed the points to be decided and has given a categorical finding on Whether there exits relationship of landlord and tenant between Mohd. Faisal Shamshi and Mohd. Faiz Shamshi and Ishtiyaq Azeem and Imtiyaz Azeem and Qamar Ashraf. There is also a categorical finding that the need of the landlord is bonafide. The matter of comparative hardship has also been categorically dealt by the prescribed authority. In view of the above simply on the ground that point of determination has not been framed, the prescribed authority's judgment/order is not vitiated.
(36) The appellate court has framed the points of determination and given a categorical finding. In view of this the argument advanced by learned counsel for the petitioner has no force.
(37) From the above, there is no ground for interference in the impugned orders and the writ petition is liable to be dismissed.
(38) Writ petition is hereby dismissed.
[Justice Arvind Kumar Tripathi(II)] Order date : 18/4/2013 Ashish Pd.