Allahabad High Court
Champi Alias Sundar Lal vs Addl. District Judge 9Court. Room No.13 ... on 30 August, 2023
Author: Alok Mathur
Bench: Alok Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Neutral Citation No. - 2023:AHC-LKO:58188 RESERVED JUDGMENT Reserved on: 09.08.2013 Delivered on: 30.08.2023 Court No. - 17 Case :- WRIT - A No. - 1000017 of 2012 Petitioner :- Champi Alias Sundar Lal Respondent :- Addl. District Judge 9court. Room No.13 Lko. & Ors Counsel for Petitioner :- Brijesh Kumar Saxena,Ankit Srivastava,Shafiq Mirza Counsel for Respondent :- Sujata Srivastava,Appoli Srivastava,Deepika Srivastava,Mamta Singh,Prashant Jaiswal,Sujata Srivastava Hon'ble Alok Mathur,J.
1. Heard Sri Brijesh Kumar Saxena, learned counsel for the petitioner; Sri Prashant Jaiswal, learned Advocate for the opposite party nos. 2 and 3, and perused the record.
2. By means of the present writ petition the petitioner has assailed the order dated 05.05.2011 passed by the IInd Addl. Judge, Small Causes Court, Lucknow, thereby decreeing the suit of ejectment filed by the respondents.
3. The facts in brief are that the petitioner was a tenant in respect of premises situated at 253/103 Nadan Mahal Road, Yahiaganj, Lucknow at the rent of Rs. 45.00 per month. The said premises are owned by Sriman Thakurji Maharaj Virajman Thakurdwara Lal Shanker Lala Dosar Vaish Trust. The petitioner did not pay rent from July 1999 to October 2001 amounting to Rs. 1260.00 and consequently notice in this regard was also given by the respondents on 24.09.2001, but despite the notice the rent was not paid and, hence, the said suit for ejectment was filed.
4. The petitioner put in appearance before the Trial Court. It was submitted that he had in fact deposited an amount of Rs. 1500.00 towards House Tax on the aforesaid property for the benefit of the landlord in pursuance to recovery notice issued by the Lucknow Nagar Nigam. It was further stated that as per Section 108(g) of the Transfer of Property Act the said amount, which was paid towards the House-Tax, could have been appropriated by the tenant towards the outstanding amount of rent and accordingly the entire rent was paid and, hence, he was not a defaulter.
5. Learned counsel for the petitioner has further submitted that the said suit itself was not maintainable before the Judge, Small Causes, in as much as the plaintiff/respondent is a Private Trust and according to the provisions of Uttar Pradesh Urban Building (Regulation of Letting Rent and Eviction) Act 1972 (hereinafter referred as 'Act no.13 of 1972'), Section 2(bb), the operation of the said Act does not bar any dispute pertaining to any building belonging to/vested in a Private Charitable Trust. The findings of both the courts below holding that the respondent is a of 'Public Charitable Trust' is perverse and contrary to record and therefore requires interference. It has been accordingly submitted that the proper remedy for the respondent was by filing an application for eviction under the Act no. 13 of 1972 before the prescribed authority, and the proceedings not having been initiated under the Act no. 13 of 1972 were without jurisdiction.
6. The Trial Court while deciding the said suit had framed seven issues. Amongst others, Issue Nos. 3 and 4 related to the nature of Trust and as to whether the provisions of the Act of 13 of 1972 would be applicable in the present case. It was considered that the said Trust was involved in working for the benefit of poor children, providing education and scholarships to such students, providing for wedding of poor persons and other welfare related activities and it also does not take any donations from the State Government. It was further stated that the said Trust is running a Homeopathic Hospital and no money is charged from the patients, except Rs. 1/-, that is charged towards registration and accordingly the Court was of the considered view that the respondent was a Public Charitable Trust. Issue No. 5 was in relation to the amount paid by the petitioner towards House Tax, which was due on the respondents and the Trial Court was of the considered view that the payment of the said amount could not be appropriated towards the outstanding amount of rent and decided the issue in favour of the respondents.
7. The petitioner has confined his arguments to Issue Nos. 3, 4 and 5, which have been dealt with by the Trial Court.
8. Sri B.K. Saxena, Learned Advocate, has vehemently submitted that a perusal of the Trust Deed would indicate that the nature of the said Trust is a Private Trust, rather than a Public Trust.
9. A perusal of the Trust-Deed, which has been annexed alongwith the Short Counter Affidavit, and a Hindi Translation of the original Urdu Version, indicates that the creator of the Trust was one Shankar Lal S/o Narayan Das, who had created the said Trust, with the following objects-
(1) Shankar Lal would continue to be absolute owner and in control of the entire Trust and its properties.
(2) After his death, the entire properties of Trust would vest in his wife, who will own the same on the same terms and conditions, as the original Trustee.
(3) Instructions were given to the wife that whatever amount is received, she should spend first on herself. Whatever money is left, the Thakurdwara will be maintained, and if anything is left thereafter, the same would be deposited in the name of Thakurdwara;
(4) It was indicated that after his death, it will be duty of his wife to maintain Thakurdwara for its development,;
(5) His wife would be entitled to run the trust according to her wishes. She can use a part of the rental income for daan-punya, i.e. charity, and nobody will have any objection;
(6) After his death, his cremation shall be carried out from the income earned from Thakurdwara;
(7) After the death of his wife, the entire property shall be owned and possessed by Thakur Ji Maharaj and he gave instructions to the Trustees from No. 3 to 7 to look after the properties in the manner he wished and keep the account of income and expenditure; and (8) It was also provided that in case his wife, after his death, does not implement the terms of this Trust-Deed, then in that condition the Trustees No. 3 to 7 shall be entitled to keep possession, use income for purposes indicated by him, i.e., in case his wife do not implement the terms of this Trust Deed, which he has provided and does not agree with his wishes, then Trustees No. 3 to 7 shall be entitled to take-over the control.
10. It was submitted that a bare perusal of the Trust-Deed would indicate that the intention of Creator of the Trust was to create the same for benefit of Thakur Ji Maharaj Virajman and during his lifetime he was to retain the entire control of the said Trust. After his death, his wife would have the similar control and after her death he had nominated certain persons, who were to have full control over the said Trust. In case any of the Trustees dies, then the other Trustees would have a right to nominate a Trustee in his place. It was urged that in the aforesaid circumstances the Trust-Deed would be determinative of the fact that the said Trust was a Private Trust, rather than a Public Trust. In support of his contentions, he relied upon a judgment of the Supreme Court in the case of Radhakant Deb & anr. v. The Commissioner of Hindu Religious Endowments, Orissa, (1981) 2 SCC 226. He submitted that guidelines have been framed by the Supreme Court in para-14 of the said judgment, from which it would be determined as to whether any Trust would be classified as a Public Trust or a Private Trust.
11. It was further submitted that Clauses 2 & 3 of paragraph-14 of the aforesaid judgment are applicable in the facts of the present case. It was stated that neither the Management vests with a large body of persons and the Founder and Trustees retained control over the Management and, therefore, as held by the Supreme Court, the aforesaid facts would be conclusive proof to show that the endowment was of a private nature. He further argued that to answer the question as to whether the said Trust would be a Public Trust or a Private Trust, it has to be demonstrated that the Founder has totally ceased control over the said Trust, and only then such a Trust can be called a Public Trust. He further relied upon the judgment of the Supreme Court in the case of Kuldip Chand & anr. v. Advocate General to Govt. of H.P. & ors., (2003) 5 SCC 46, relevant paragraphs 37 and 38 of which read as under-
"37. From the materials brought on record by the parties, as noticed hereinbefore, the following facts emerge: (1) That the shops were let out to other people. (2) People could come and stay in the Dharamshala but for stay of more than three days, only upon seeking permission therefor. (3) Rent received from the shops was being used by the owners for their own purpose. (4) The Dharamshala was being managed/maintained from the personal funds of the owner. (5) The management and control of the Dharamshala was all along with the owners. (6) A school was opened in the Dharamshala. (7) A chowkidar was appointed by Ranzor Singh to look after the Dharamshala and his salary used to be paid by the owner from his own pocket. (8) The Dharamshala could be used for marriage purpose but only with the permission of the owners. (9) The first-floor rooms could be used only by the officers or by others with the permission of the owner. (10) The Dharamshala was ordinarily being used by the pilgrims only during fair. (11) The public never contributed anything for maintenance of the Dharamshala. (12) No member of the public had any say as regards management of the Dharamshala and had no legal right to use the same. (13) No member of public the ever participated in the management of the Dharamshala. (14) No manager had ever been appointed to look after and manage the property. (15) The Dharamshala was not registered under the Sarais Act. (16) There is no evidence to show that the owners acted as shebaits or trustees.
38. A dedication for public purposes and for the benefit of the general public would involve complete cessation of ownership on the part of the founder and vesting of the property for the religious object. In absence of a formal and express endowment, the character of the dedication may have to be determined on the basis of the history of the institution and the conduct of the founder and his heirs. Such dedication may either be complete or partial. A right of easement in favour of a community or a part of the community would not constitute such dedication where the owner retained the property for himself. It may be that right of the owner of the property is qualified by public right of user but such right in the instant case, as noticed hereinbefore, is not wholly unrestricted. Apart from the fact that the public in general and/or any particular community did not have any right of participation in the management of the property nor for the maintenance thereof any contribution was made is a matter of much significance. A dedication, it may bear repetition to state, would mean complete relinquishment of his right of ownership and proprietary. A benevolent act on the part of a ruler of the State for the benefit of the general public may or may not amount to dedication for charitable purpose."
12. It is in the aforesaid circumstances that the learned counsel for the petitioner has vehemently submitted that a perusal of the Trust-Deed indicates that the said Trust was of a Private Nature as the Creator of the said Trust had retained control with themselves at all stages and subsequently, the trustees were mere successors of the Original Trustee and, hence, there is no doubt that the said Trust Deed pertain to a Private Trust.
13. The nature of the Trust being a Private Trust is also demonstrated by the fact that for the appointment of the Trustee Hori Lal, an application was made by the respondent-Trust invoking the provisions of Section 73 of the Indian Trust Act 1882. He stated that had the respondent been a Public Trust, they would have filed an application under Section 92 of the Code of Civil Procedure (C.P.C.) and the aforesaid application could have been filed by the Advocate General, or two or more persons having interest in the Trust, having obtained the leave of the Court. He submits that the Indian Trust Act applies only to private trust and an application for appointment of a trustee was moved under Section 73 of the Indian Trust Act which clearly shows that the respondent themselves have held themselves to be a private trust and cannot be permitted to resile from the said stand. The said application was filed by the Trustees seeking to fillup the vacancy arising amongst themselves and the present application was filed by one Gaya Prasad Gupta, one of the Trustees of the Trust. He submits that the respondents have all along considered themselves to be a Private Trust and, accordingly, had invoked the provisions of Section 73 of the Trust Act for appointment of a Trustees.
14. It was further submitted that though a perusal of the said Trust-Deed may indicate to be a Private Trust, but now the Trust is being run by the Trustees, who are involved in Public related activities and, hence, now the said Trust can be said to be a Public Trust rather than a Private Trust.
15. The writ petition has been opposed by Mr. Jaiswal, learned Counsel appearing for the respondents. He has submitted that the respondent Trust is a Public Trust and is working for the welfare of the Public at large. He has submitted that the Trust is running a Hospital and no money is charged from the patients and the Trial Court has adequately considered the material before it and correctly come to the conclusion that the Trust is a Public Trust. He further submitted that the nature of the respondent cannot be considered in such proceedings. Lastly with regard to the question as to whether the petitioner had paid rent, when they deposited outstanding amount of dues towards the house-tax recovery by Lucknow Nagar Nigam, he submitted that the payment of the said amount cannot be appropriated towards the rent. He submitted that it was the duty of the landlord to pay the House Tax and if the tenant has voluntarily paid the said amount, the same cannot be adjusted towards his rent, and prayed for dismissal of writ petition.
16. In this writ petition, the first important question that falls for consideration is whether the respondent is a private charitable trust as alleged by the petitioner or a Public Trust as alleged by the respondents.
17. In pith and substance, the argument of the learned counsel for the respondent is that the Trust in question is maintained by the trust money which put therein "Thakur ji Maharaj Virajman" and that money is used to maintain "Hospital" which is meant for public. Only Rs.1/- is charged from the patients towards registration and it is actively working for the welfare of general public and, hence, the said trust would qualify as "Public Charitable Trust".
18. Needless to mention that concept of a private endowment or a private trust is unknown to English law where all trusts are public trusts of a purely charitable and religious nature but in India, the Trusts are divided into private Trust or Public Trust, as observed by Dr. Mukherjee in his Tagore Law Lectures on the Hindu Law of Religious and Charitable Trusts (1952 Edition) p.12 that-
"The question as to whether the religious endowment is of a private nature or of a public nature has to be decided with reference to the facts proved in each case and it is difficult to lay down any test or tests which may be of universal application. It is manifest that where the endowment is lost in antiquity or shrouded in mystery, there being no document or revenue entry to prove its origin, the task of the court becomes difficult and it has to rely merely on circumstantial evidence regarding the nature of the user of the temple.
19. Accordingly, the essential distinction between a private and a public endowment is that whereas in the former, the beneficiaries are specified individuals, in the latter, they are the general public or class of unascertained people. This being the essential distinction between the nature of a public or a private endowment, it follows that one of the crucial tests to determine the nature of the endowment would be to find out if the management of the property dedicated is in the hands of the strangers or members of the public or in the hands of the founders or their decendants.
20. After all, an idol is a juristic person capable of holding property and the property dedicated to the temple vests in the deity. If the main worshippers are the members of the public who worship as a matter of right then the real purpose is to confer benefit on God. Some of the circumstances from which a public endowment can be inferred may be whether an endowment is made by a person who has no issue and who after installing the deity entrusts the management to members of the public or strangers which is a clear proof of the intention to dedicate the temple to public and not to the members of the family. Where, however, it is proved that the intention of the testator or the founder was to dedicate the temple merely for the benefit of the members of the family or their descendants, the endowment would be of a private nature.
21. The mere fact that members of the public are allowed to worship by itself would not make an endowment public unless it is proved that the members of the public had a right to worship in the temple. In Deoki Nandan vs. Murlidhar, AIR 1957 SC 133, Hon'ble Apex Court observed as follow:
"The distinction between a private and a public trust is that whereas in the former the beneficiaries are specific individuals, in the latter they are the general public or a class thereof. While in the former the beneficiaries are persons who are ascertained or capable of being ascertained, in the latter they constitute a body which is incapable of ascertainment."
22. The counsel for petitioner relied on the judgment of the Hon'ble Supreme Court in the case of Radhakant Deb & anr (Supra) where the test has been laid down as providing sufficient guidelines to determine on the facts of case whether an endowment is of a private or of a public nature. The test can be summarized in the context of present case.
The guidelines framed in the said judgment in para-14 are quoted hereunder:
"(1) Where the origin of endowment cannot be ascertained, the question whether the user of the temple by members of the public is as of right.
(2) The fact that the control and management vests either in a large body of persons or in the members of the public and the founder does not retain any control over the management. Allied to this may be a circumstance where the evidence shows that there is provision for scheme to be framed by associating the members of the public at large.
(3) Where, however, a document is available to prove the nature and origin of the endowment and the recitals of the document show that the control and management of the temple is retained with the founder or his descendants, and that extensive properties are dedicated for the purpose of the maintenance of the temple belonging to the founder himself, this will be a conclusive proof to show that the endowment was of a private nature.
(4) Where the evidence shows that the founder of the endowment did not make any stipulation for offerings or contributions to be made by members of the public to the temple, this would be an important intrinsic circumstance to indicate the private nature of the endowment."
23. In the first test in order to determine the nature of the trust, it is to be ascertained as to whether the user of the temple by members of public is as of rights. The Trust deed by which the trust in question came into existence nowhere provides that user of temple by the members of the public will be as of right. Even otherwise the public has no say in the user of temple in question as of right.
24. In the second test, it has to be ascertained as to whether the control and management vests in large body of persons are members of the public or the founder did not retain any control over the management. A perusal of the Trust deed would show that the control and management was retained by the founder in himself and his own family and subsequently the named trustees. Thus in view of the second test the trust in question is only a private trust.
25. The third test as laid down is to see from the document, the nature and origin of the trust and if the control and management of the temple is retained with the founder and his descendants, and that extensive properties are dedicated for the maintenance of the temple belonging to the founder himself. It will be a conclusive proof to determine that the trust is a private trust. In the present case, a perusal of the Trust deed shows that the control and management of the temple was retained by the founder in himself and after his death his wife and subsequently with the named trustees.
26. The fourth test is where the founder of the trust did not make any stipulation for contribution to be made by members of the public. It will be an important circumstance to indicate the private nature of the trust. A perusal of the trust deed by means of which the trust in question came into existence reflects that no stipulation for offering or contributions to be made by the members of the public was made by the founder in the deed.
27. Thus on examining the nature of the trust by applying the aforementioned tests it would be crystal clear that the trust in question is a private trust. As per the trust deed the control of the trust at all times vested initially with the creator / founder of the trust, and subsequent to his death his wife and thereafter the trustees. The management of the trust accordingly vested with the founder and subsequently with the trustees. No member of the public could be associated or appointed as a trustee, and coupled with the fact that the members of the trust have all along been running the same is a private trust, due to which for appointment of the trustees they had approached the court of District Judge under Section 73 of the Indian Trust Act and of themselves treated to be a private trust and accordingly this Court is of the considered view that due to the aforesaid reasons the trust would fulfill all the qualifications to be recognized as a private trust. Both the courts below have failed to examine the nature of the trust in light of the law propounded by Hon'ble Supreme Court and, therefore, have not dealt with the said issue correctly and merely on the basis that the said trust was running a charitable hospital, have held the trust to be a public trust. As discussed above elaborately, the said finding is perverse and is accordingly set aside.
28. The other question with which we are concerned in this writ petition is whether the defendant appellant was entitled to claim deduction of the amounts paid by him to the Municipal Board in pursuance of the demands made by the Municipal Board upon the defendant for taxes. The Courts below took the view that the defendant appellant was not entitled to deduct those amounts with the result that the plaintiffs' suit for possession by ejectment of the defendant stands decreed on the finding that the defendant appellant had failed to comply with the notice of demand served upon-him by the plaintiff.
29. Learned counsel for the appellant has urged that according to the findings recorded by the ourt below, the defendant-appellant's claim that he was entitled to deduct the amounts paid by him to the Municipal Board was not liable to be adjusted towards the outstanding amount of rent, but the court below erred in taking the contrary view.
30. There is no controversy that the defendant-appellant is a tenant of a portion only of a large building. The finding of the court below is that a total, sum of Rs. 1500/- was paid by the defendant-appellant to the Municipal Board and that the receipt as proof of payment made by the appellant to the Municipal Board pursuant to the notices of demand. It is also clear from the findings that the Municipal Board had served upon the appellant demands for payment of taxes in relation to the portion of which the appellant was a tenant.
31. Learned counsel has founded his contention in trial the appellant/defendant was entitled to deduct the amounts covered by the receipts from the rent due from him to the plaintiff-respondents as per provisions of clause (g) of Section 108 of the Transfer of Property Act, read with the provision contained in Section 177 of the U.P. Municipalities Act. Section 108 of the transfer of Property Act is in two parts viz. rights and liabilities of the lessor, and rights and liabilities of the lessee. Clause (g) falls within the latter portion embodying the rights and liabilities of the lessee, and runs as follows:--
"If the lessor neglects to make any payment which he is bound to make, and which, if not made by him, is recoverable from the lessee or against the property, the lessee may make such payment himself, and deduct it with interest from the rent, or otherwise recover it from the lessor."
Section 177 of the U.P. Municipalities Act runs as follows:--
"All sums due on account of a tax imposed on the annual value of building or lands or of both shall, subject to the prior payment of the land revenue (if any) due to Government thereupon be a first charge upon such building or lands."
32. Learned counsel for the petitioner has urged that, under the provision contained in Section 177 of the U. P. Municipalities Act, the Municipal Board has been invested with the authority to treat arrears of taxes as constituting a charge upon the entire property, including the portion which was in the possession of the defendant-appellant as a tenant, with the result that those arrears of taxes were recoverable against the property in the possession of the defendant-appellant as a lessee, as contemplated by Clause (g) of Section 108 of the Transfer of Property Act. His contention is, that in these circumstances, the defendant-appellant having made the payment himself, was entitled to deduct the same from the rent.
33. Learned counsel for the petitioner has also relied upon the provision contained in Section 149 of the U.P. Municipalities Act whereunder an occupier who makes payment of tax for which the lessor is primarily liable, is entitled, in the absence of any contract to the contrary, to be reimbursed by the lessor who, according to the provisions contained in Section 149 aforesaid, is the person primarily liable to pay the taxes. I have heard learned counsel for the parties. In my opinion the contention of the learned counsel for the appellant is sustainable on both the grounds.
34. The provisions contained in Section 177 of the U. P. Municipalities Act make it clear that the powers with which the Municipal Board is invested for the purpose of recovering Municipal dues includes the power to sell the property in respect of which taxes may be due, and for that purpose the tax due constitutes a first charge upon the building. It is, therefore, clear that the Municipal Board could, if it so liked, recover the tax due by sale of the property which included the property in the possession of the defendant-appellant. That being so, and there being no controversy that the lessor had neglected to make payment of the total amount of Rs. 1500/- paid by the petitioner to the Municipal Board, that amount was recoverable against the property in the possession of the defendant-appellant. The defendant-appellant was, therefore, entitled to make the payments himself and deduct the same from the rent, in exercise-of his rights under Clause (g) of Section 108 of the Transfer of Property Act.
35. Section 149 of the U. P. Municipalities Act runs as follows :--
(1) Except when otherwise provided by rule, every tax other than a scavenging tax or tax for the cleansing of latrines and privies on the annual value of buildings or lands or of both shall be leviable primarily from the actual occupier of the property upon which the said taxes are assessed, if he is the owner of the buildings or lands or holds them on a building or other lease from the Government or from the board, or on a building lease from any person.
(2) In any other case the tax shall be primarily leviable as follows, namely:--
(a) if the property is let, from the lessor;
(b) if the property is sub-let, from the superior lessor
(c) if the property is unlet, from the person in whom the right to let the same vests.
(3) On failure to recover any sum due on account of such tax from the person primarily liable, the board may recover from the occupier of any part of the buildings or lands in respect of which it is due that portion thereof which bears to the whole amount due the same ratio as the rent annually payable by such occupier bears to the aggregate amount of rent payable in respect of the whole of the said buildings or lands, or to the aggregate amount of the letting value thereof in the authenticated assessment list (4) An occupier who makes any payment for which he is not primarily liable under the foregoing provisions shall in the absence of any contract to the contrary, be entities to be reimbursed by the person primarily liable."
36. There is no controversy that the taxes demanded did not include scavenging tax or tax for the cleansing of latrines and privies. From the above provision it is clear that, so far as the personal liability of the petitioner was concerned, it was confined, under Clause (3) of Section 149, to the proportionate amount of tax due in respect only of the portion which was in the occupation of the petitioner as a tenant. Under Clause (4), however, the right of reimbursement embodied therein is not confined to the extent of the personal liability of the occupier, but extends to any payment made by him so long as it is payment of an amount for which the plaintiff respondents were primarily liable. The substance of a right to be reimbursed a such of money implies, to my mind, a right to deduct that sum from monies which the person entitled to reimbursement may owe to the person liable to reimburse. The view that the expression 'any payment' in Clause (4) should be interpreted to include payment of any tax for which the lessor was primarily liable, even though under Clause (3) the Board may have been entitled to recover only part thereof from the occupier, seems also to be in accord with the rule of equitable construction, for, if it were held that the occupier is entitled to pay and be reimbursed only to the extent of the proportionate liability in respect of the portion in his occupation, it would lead to anomalies and hardship on the occupier. The Municipal Board may refuse to accept part payment and deprive the occupier of municipal amenities enjoyed by him in common with other occupiers.
37. Therefore, keeping in view the provisions of Section 149 of the Municipalities Act, the petitioner cannot be held to have defaulted in payment of any arrears of rent when the appellant has established that he had paid an amount of Rs.1500/- which exceeded Rs.1260/- in respect of which he was alleged to have defaulted had been paid by him to the Municipal Board under notices of demand served upon him in respect of taxes due against property including the portion of which the he was the tenant.
38. The Hon'ble Apex Court has already observed in the case of Deoki Nandan (supra) that the mere fact that members of the public are allowed to worship by itself would not make an endowment as public. Thus, it appears that the present Trust is a Private Trust and the concurrent finding recorded by the lower courts are erroneous and liable to be interfered. Consequently, the trust in question is not exempted from and the provisions of Sec 13 of Act,1972 and the same are applicable to it.
39. Moreover, the petitioner himself has admitted that there is relationship of tenant and landlord between him and the opposite-party no.3 The petitioner is regularly paying the rent. Thus, there is undisputed relationship of the landlord and tenant between them.
40. In view of the above the concurrent findings of the courts below are erroneous and the provisions Section 13 of the Act of 1972 are applicable in the instant case. Hence, in this regard, the orders of the lower courts are hereby set aside.
41. In these circumstances, the writ petition is allowed and the impugned order dated 9.2.2012 passed by Additional District Judge, Court Room No.13, Lucknow in SCC Revision No.39 of 2011 as well as the judgment dated 5.5.2011 passed by 2nd Additional Judge, Small Causes, Lucknow in SCC Suit No.222 of 2001 are set aside.
Order Date :- 30.8.2023 (Alok Mathur, J.)
A.Nigam/RKM