Allahabad High Court
Ashraf Ali And Others vs State Of U.P. And Another on 13 August, 2010
Author: Devendra Pratap Singh
Bench: Devendra Pratap Singh
Court No. 1 Case : WRIT A No. 52774 of 2003 Petitioner : Ashraf Ali And Others Respondent : State Of U.P. And Another Petitioner Counsel : Sanjay Kr. Srivastava Respondent Counsel : C.S.C. Hon'ble Devendra Pratap Singh,J.
Heard learned counsel for the parties.
This petition by the tenant is directed against concurrent orders dated 27.2.2002 and 7.11.2003 by which a suit for arrears of rent and eviction filed by the respondent landlord has been decreed by both the courts below.
The respondent landlord instituted a Small Causes Suit No. 25 of 1995 against the petitioner's father, Abdul Sattar for arrears of rent and eviction inter alia with the allegations that he was a tenant of the disputed shop situated in Mirch Mandi on behalf of the landlord at Rs.100/ per month but he defaulted in payment of rent from 1.6.1990 and inspite of several demands, he did not pay forcing him to send a registered notice dated 28.9.1995 demanding arrears of rent within the notice period and for vacating the disputed shop. Despite service of notice neither the rent was paid nor the premises vacated.
Abdul Sattar filed his written statement alleging that his wife had a share in the disputed shop and with her consent, he was paying Rs.100/ per month as rent, but after her death, he alongwith his children became coowners and could not be evicted. It was further asserted that a partition suit was pending and as it involved genuine dispute of title, the matter should be relegated to the regular courts under Section 23 of the Act. During pendency of the suit, Abdul Sattar died whereupon the present petitioners were substituted and they filed another written statement that partition suit no.165 of 1990 had been decreed and therefore they are not liable for eviction.
2The trial court after going through the evidence of the parties, held that Abdul Sattar and thereafter the petitioners were the tenants of the disputed premises and no genuine question of title was involved and since they had defaulted in payment of rent, it decreed the suit.
During pendency of the revision, it was brought on record that against the partition decree, appeal preferred by other coowners had been dismissed and therefore now the matter should be relegated to the regular courts. The revisional court, relying upon the evidence on record, held that the possession of the petitioners is that of a tenant and until and unless it is proved that the petitioners became sole owners of the disputed property, their possession would remain as that of a tenant.
Learned counsel for the petitioner has urged that his father did not remain a tenant and after the death of his mother, as he became cosharer and the findings otherwise recorded by the courts below are vitiated.
No doubt, in a partition Suit No. 165 of 1990, Saira, petitioner's mother, daughter from the second out of the three wives of Mohd. Ibrahim was held to be a fringe cosharer but the issue is still sub judice and no final decree has yet been drawn. However, assuming it to be correct, it has to be examined in these factual background, whether the doctrine of merger will apply and the tenancy would stand determined cloathing him with the rights and obligation of the lessor. The petitioners have heavily relied upon the decision of the Apex Court in Abdul Alim vs. Sheikh Jamal Uddin Ansari & others [1998 (9) SCC 683] and Imambi vs. Azeeza Bee [2000 (9) JT 562] to contend that the suit was not maintainable while the respondents have relied upon a later decision of the Supreme Court in T.Lakshmipathi & others vs. P.Nithyananda Reddy & others [AIR 2003 SC 2427]. All the decisions are of two learned Judges, therefore, in view of the Full Bench decision of our 3 Court in the case of UPSRTC vs. State Transport Authority [AIR 1977 Alld 1) and the decision of this Court in the case of State of U.P. vs. Santosh Kumar [2003 (96) FLR 637, it would be appropriate to examine the latest decision which is also exhaustive and gives more than one reason for its conclusions.
The Apex Court in the case of T. Lakshmipath (supra) was considering a question whether a suit for eviction under a rent control legislation would be maintainable against a tenant who has in the mean time acquired coownership of the disputed premises. After considering large number of its earlier decisions, including of the Privy Council and also after considering the doctrine of merger and frustration, it went on to hold that until the interests of the lessee and lessor do not converge the whole of the property at the same time and in the same right, the suit would be maintainable and went on to uphold the decree of eviction. It is evident from the record that there are dozens of cosharers and whatever the extent of the interest of the respondent, that still survives and therefore there is no coalescence of the two interests in the petitioner.
Even on facts, the tenancy stood proved. Abdul Sattar, father of the petitioner has admitted in the written statement that he was the respondent's tenant at Rs.100/ per month with a rider that his wife was a cosharer. He had filed an injunction Suit No.616 of 1990 (Abdul Sattar vs. Ismail) where in the plaint and then in his testimony he admitted himself to be a tenant at Rs.100/ per month of the respondent. These categorical assertions have neither been explained nor denied in substance and they will bind the petitioners. Both the courts, after careful shifting of evidence have recorded categorical findings of fact that petitioners are tenants of the disputed accommodation. The petitioners themselves filed application under Section 30 of the Act for deposit of rent in favour of the respondent and have continued to do so. Therefore, it cannot, but be said, that earlier their father and now they are tenants of the 4 disputed accommodation. The courts below have rightly applied the law and decreed the suit.
No other point has been urged.
For the reasons above, this is not a fit case for interference under Article 226 of the Constitution of India. Rejected.
Order Date : 13.8.2010 PKG