Allahabad High Court
Sudhangshu Kumar Banerjee S/O Late ... vs Radhey Charan Shan S/O Late Hanuman Das ... on 11 May, 2007
Equivalent citations: 2007 (5) ALL LJ 64, 2007 A I H C 2851, (2007) 68 ALL LR 355, (2007) 2 ALL RENTCAS 265
Author: Prakash Krishna
Bench: Prakash Krishna
JUDGMENT Prakash Krishna, J.
1. The present writ petition arises out of proceedings under Section 21(1)(a) of U.P. Act No. 13 of 1972 for release of residential premises No. B-19/77 and B-19/77-A of which the petitioner is the tenant and the respondent No. 1 is the landlord.
2. The release application was filed on the pleas inter alia that the premises in question consisting of five rooms, verandah, lavatory, bathroom, kitchen etc. is bonafide required by the respondent landlord; the family of landlord consists of himself, his wife, three sons and one daughter and are residing in three rooms situate on trie ground floor. It was further alleged that the elder son Alok has done graduation and the other son is doing B.Sc. and the daughter is a school going student. It was also alleged that the petitioner tenant is a harden litigant and is not vacating the disputed premises although he has got his own residential house in Mohalla Kabir Nagar Colony, Durgapur, Varanasi, simply to harass the landlord. It was registered as P.A. Case No. 24 of 2001.
3. The defence set up by the petitioner tenant was that the need of the landlord is malafide. There had been an earlier litigation in between the pa ties being S.C.C. Suit No. 154 of 1983 : Racthey Charan Shah v. Prabodh Charan Banerjee and Anr. which was decreed on May 9, 1994. A SCC revision No. 123 of 1994 was filed by the petitioner against the said decree in which the parties entered into compromise on March 7, 1995 and under the said compromise, the pet lie tier tenant vacated the two rooms on the ground floor and it was agreed upon that the tenant shall be entitled to live in the remaining tenated portion of the first floor and the second floor till death. In view of the above compromise entered into between the parties, the release application under Section 21(1)(a) of the U.P. Act No. 13 of 1972 is not maintainable.
4. The parties led evidence in support of their respective cases. The Prescribed Authority by its Judgment and order dated May 2nd, 2003 dismissed the release application on the ground that the need of the landlord respondent is not bonafide and genuine in as much as in the SCC revision No. 123 of 1994 he entered into a compromise in the year 995 and under the said compromise he got the possession of the ground floor and the tenant is entitled to live as such on the first floor and the second floor along with his wife and daughter, during his life time. The Prescribed Authority was of the view that the landlord respondent was aware of the fact that in due course of time his sons and daughter will be of grown up age and even then he agreed to permit the petitioner tenant to live during his life time, shows that the need is not bonafide and genuine. Feeling aggrieved against the aforesaid Judgment and order, Rent Control Appeal No. 87 of 2003 was filed by the landlord respondent, under Section 22 of the U.P. Act No. 13 of 1972. The said appeal has been allowed by the impugned order dated February 9th, 2004 by the court below and the tenanted portion has been released in favour of the landlord respondent.
5. Shri A.C. Tripathi, the learned Counsel for the petitioner in support of the writ petition submits one and only one point : The release application was not maintainable in view of the permanent lease created in favour of the petitioner under the aforesaid compromise decree dated 7th of March, 1995.
6. To recapitulate the facts, it may be stated here that SCC suit No. 154 of 1983 for ejectment of the tenant petitioner was filed by the landlord respondent under Section 20 of the U.P. Act No. 13 of 1972. The said suit was decreed on 5th of May, 1994 against which the aforestated revision No. 123 of 1994 was filed by the petitioner tenant. During the pendency of the revision a compromise was entered into and a was agreed that the tenant will reside on a first floor and the second floor of the premises in question till his life long with his family on monthly rent of Rs.500/-. The relevant terms and conditions of the compromise are reproduced below:
A. That the revisionist No. 2 will reside in first floor and second floor of the premises in question till his life a long with his family at he monthly rent of Rs. 500/- only from 15th April 1995 and monthly real receipts duly stamped and signed, will be given by the O.P. No. 1, the landlord, to the Revisionist No. 2 w.e.f the same date.
B. That revisionist No. 2 Sri Shudhangshu Kumar Banerjee will leave his tenancy right over the ground floor from the premises in question and will handover peacefully possession of the same to Sri Radhey Charan the O.P. No. 1, the Landlord, and the revisionist No. 2 will not create any hindrance in using ground floor by the landlord in any way.
C. That after the death of revisionist No. 2 his said wife and his said daughter will also live in the remaining accommodation of first floor and second floor till death.
XX XX XX XX XX XX XX XX XX XX XX XX XX XX XX XX XX XX
M. That on breach of any terms and conditions of this omprormise the O.P. No. 1 will have right to execute the decree dt.9.5.1994.
7. The question of maintainability of release application in the face of the earlier compromise between the parties in the civil revision falls for consideration in the present case.
8. A bare perusal of the relevant terms and conditions of the compromise, quoted above, would show that the petitioner was permitted to reside in the first floor and second floor of the premises in question along with his family members on a monthly rent of Rs. 500/- during his life time and after his death his widow and daughter will live in the remaining accommodation of first floor and second floor till death. Further clause (M) of the aforesaid compromise provides that in case of breach of any its terms and conditions, the landlord (opposite party No. 1) will have the right to execute the decree for eviction. To put it differently, to me it appears that by way of the aforesaid compromise, the right accrued in favour of the respondent-landlord to get possession of the disputed premises was deferred during the life time of the petitioner on fulfillment of the conditions specified therein.
9. The question is whether the right to the petitioner under the said compromise is akin to the right to remain in possession on payment of Rs. 500/- per month as rent during his life time and after his death his wife and daughter will have the same right subject to the terms of the contract. On true and correct interpretation of the aforesaid compromise in the light of Clauses (A), (B), (C) and (M). it is difficult to draw an inference that a lease was created in favour of the petitioner-tenant for a period till his death. There is an inbuilt provision in. the shape of Clause (M) which protects the right of the respondent-landlord to seek eviction of the petitioner in case of breach of any of the terms and; conditions of the compromise and put the decree dated 9-5-1994 in execution. The factum of passing of the decree for eviction and postponement of the execution for a duration, which is not uncertain, will not create relationship of landlord and tenant between the parties specially in the background of fact that relationship of landlord and tenant was already terminated by means of a notice under Section 106 of the Transfer of Property Act which was also culminated into a decree for eviction. The argument of the petitioner is that a life term lease came into existence under the aforesaid compromise decree is not correct and clause M of the said compromise is the complete answer to this submission. The sheet anchor of the argument of the petitioner is a decision of this Court in B.P. Sinha v. Som Nath .
10. It is necessary to notice the controversy involved therein with some detail. The tenant therein was offered by the landlord another accommodation and in the said offer it was mentioned that he can live as long as he desires and will receive same facility which he had in the old house. This Court on the interpretation, of the letter of the landlord, which contained the above version, deduced that it was really an agreement to lease. It created a lease for an indefinite period and as such for the life time of lessee. The contention that it was permanent lease was rejected following the judgment of Bombay High Court in Bava Saheb v. West Paten Press Co. . This Court took the view that if the lease provides that lessee would continue in possession of the property so long as he pays rent it is usually regarded as lease for an indefinite period. Answering the question as to whether said lease required registration or not in view of Section 107 of Transfer of Property Act, it was further held that such lease deed does not require, registration because (i) merely it is an agreement to lease and no lease as such and (ii) said lease cannot be treated as confined to a specific limit of time so as to exceed one year. The right incorporated in a lease permitting the lessee to live as long as he desires and also to vacate whenever he desires cannot be circumscribed within any space of time falling short of his whole life, which is an uncertain span. It cannot, therefore, be said to be for any term exceeding one year and is not hit by Section 107 of the Transfer of Property Act. Final conclusions are recorded in para-15 of the judgment which is reproduced below:
15. Thus after taking into consideration the material facts of the case I am constrained to hold that the lease created in favour of the appellant was a lease for-lifetime, that the document Exhibit A-3 being the letter addressed by the lessor to the lessee was merely an agreement to lease, that the appellant was entitled to the protection of the, proviso to Section 49 of the Indian Registration Act and also that the plea of part performance embodied in Section 53A of the Transfer of Property Act was available to him. I am not impressed by the respondent's argument that it was a lease either in the nature of tenancy at will or for any term exceeding one year and was, therefore, hit by Section 107 of the Transfer of Property Act and Section 49 of the Indian Registration Act. The lease for lifetime in my opinion is a species of lease which eludes the clutches of the inhibitions imposed by the provisions of Section 107 of the Transfer of Property Act or Section 49 of the Indian Registration Act.
11. The aforesaid judgment came up for consideration in Dr. Nawal Kishore Dubey v. Sardar Khajan Singh and Ors 1984 (1) ARC 461 wherein learned Single Judge held that in view of Division Bench judgment in Zarif Ahmad and Anr. v. Satish Kumar and Anr. 1983 (1) ARC a lease for mure than a year made in writing has to be registered under Section 107 of the Transfer of Property Act.
12. The Division Bench proceeded to answer the question referred to it with reference to para-1 and 2 of Section 107 of the Transfer of Property Act. It held that reading of Section 107 of the Transfer of Property Act with the provisions of Indian Registration Act, it is clear that a lease for a period less than a year made in writing must be registered under Section 107 of the Transfer of Property Act, though it is not compulsorily registrable under Section 17(1)(d) of the Registration Act. It appears that the attention of the Division Bench was not invited towards the amendment made in second para of Section 107 of the Transfer of Property Act by U.P. Civil Laws (Reforms and Amendment) Act, 1976 which substituted para-2 of Section 107 of the Transfer of Property Act with the following:
All other leases of immovable property may be made either by a registered instrument or, by an agreement oral or written, after by delivery of possession.
13. A bare perusal of the aforesaid provision as substituted by the aforesaid Amending Act it is clear that leases of immovable property other than those covered by para-1 of Section 107 of Transfer of Property Act may be made, at the option of the party by a registered instrument or by an agreement oral or written, after by delivery of possession. Consequently it follows that lease for a period of less than one year which is not covered under para 1 of Section 107 of Transfer of Property Act even if it is made in writing, is made in compulsorily registrable.
14. The said judgment has been reversed by the Apex Court in Satish Kumar v. Zafar Ahmad and Ors. , but on a different point. It was held that an unregistered lease deed executed for month to month for a period of not exceeding 11 months, though reduced to writing and possesson is delivered thereunder to a tenant, is not compulsorily registrable instrument and therefore, the prohibition contained in Section 49 of the Registration Act is not applicable.
15. Upshot of the aforesaid discussion is that the view taken in the case, of B.P. Sinha (supra) that a lease for a period of less than one year even if made in writing does not require registration still holds field in view of the U.P. Amendment, referred above. This negatives the contention of the learned Counsel for the respondent-landlord that since the decree incorporating the compromise in question was for a period of more than one year and was compulsurily registrable under Section 107 of the Transfer of Property Act is difficult to be accepted. His argument proceeded on the footing that the compromise referred to above was for a period of more than one year and was compulsorily registrable. He could not give any satisfactory reply to the law laid down in the case of B.P. Sinha (supra) and in absence of any other material it is not possible for me to take a different view of the matter. I hold, therefore, that the document in question did not require registration on under Section 107 of the Transfer of Property Act. But that is no the end of the matter.
16. Another aspect of the case, which is a vexed question to be consider is the effect of such compromise on release application filed by a landlord under Section 21 of U.P. Act No. 13 of 1972.
17. Before examining the respective contentions of the learned Counsel for the parties, it is desirable to have an idea of the scheme of the Act. For this purpose Sections 12, 20 and 21 of the act require consideration. Under these provisions, right has been given to a landlord to seek eviction of a tenant under different circumstances. The grounds on which a landlord may seek his remedy under, the e provisions may some time be overlapping. Under Section 12 read with Section 16 of the Act, a landlord may apply for release of the disputed accommodation though not actually vacant but on the ground that it is deemed vacant under Section 12 where the tenant has substantially removed his effects from the tenanted accommodation or he has allowed it to be occupied by any person who is not a member of his family or in the case of a residential building, he as well as members of his family have taken up residence, not being temporary residence, elsewhere. In the case of a non-residential building, where a tenant carrying on business in the building admits a person who is not a member of his family as a new partner, the tenant shall be deemed to have ceased to occupy the building. There are other similar provision where a building, though not actually vacant, may be deemed vacant by operation of law under Section 12 of the Act. It is open to a landlord to seek release of such building under Section 16(1)(b) of the Act. The District Magistrate shall, after ascertaining existence of facts relevant to Section 12, will proceed to decide the release application of the landlord for release under Section 16(1)(b) of the Act.
18. Section 20 of the Act enumerates various grounds which are available to a landlord to institute a suit for eviction of a tenant from a building after determination of his tenancy before a competent civil court. Some grounds which are usually found in other similar Rent Control Legislations, are default in payment of rent for a specified period of time, causing substantial damages to the building, making such construction or structural alteration in the building as to likely to diminish the value of its utility, inconsistent use of the building, sub-letting, denying the title of the landlord, etc. Such proceedings can be initiated before a Judge, Small Cause Court by institution of a plaint and if ultimately the landlord succeeds and possession is delivered, he would not be entitled to use the building in question unless the building in question is released by an order of the District Magistrate under Section 16(1)(b) of the Act, otherwise it will be open for an allotment.
19. Section 21 of the Act confers a right on a landlord to get the building released under occupation of a tenant on the grounds specified therein, namely, the building is bonafide required in its existing form or after demolition by the landlord or it is in a dilapidated condition and is required for the purpose of demolition and new construction.
20. The controversy involved in the case on hand centers round the ambit and scope of Section 21 of the Act vis a vis the nature of right available to a landlord against a tenant and, therefore, it is desirable to reproduce the relevant portion of the said Section.
21. Proceedings for release of building under occupation of tenant- (1) The Prescribed Authority may, on an application of the landlord in mat behalf order the eviction of a tenant from the building under tenancy or any specified part thereof it is satisfied that any of the following grounds exists, namely-
(a) that the building is bonafide required either in its existing form or after demolition and new construction by the landlord for occupation n himself r any member of his family, or any person for whose benefit it is held by him, either for residential purposes or for purposes of any profession, trade, or calling, or where the landlord is the trustee of a public charitable trust, for the objects of the trust:
(b) that the building is in a dilapidated condition and is required for purposes of demolition and new construction. (2) ...
(3) ...
(4) An orded under Sub-section (1) or Sub-section (1-A) or Sub-section (2) may be made notwithstanding that the tenancy has not been determined:
provided that no such order shall be made in the case of a tenancy created or a fixed term by a registered lease before the expiry of such term.
(5) On an order being made under Sub-section (1) or Sub-section (1-A) or Sub-section (2), the building or part or appurtenant land, as the case may be, shall stand released in favour of the landlord:
provided that on the occurrence of any of the circumstances mention, in Section 24, any building or part thereof (but not appurtenant laid alone) released as above, shall without prejudice to the provisions of Section 24, be deemed to become again subject to allotment in accordance with Chapter III. (6) On the expiration of a period of thirty days from an order under Sub-section (1), or Sub-section (1-A) or Sub-section (2), the tenancy of the tenant hall stand determined in its entirely or as the case may be in respect of any part or appurtenant land released in favour of the landlord, and in the latter case, the rent payable for the reminder of the building under tenancy shall be such as may be agreed upon between the parties and in the absence of such agreement as may be determined under Section 8. (7) ...
(8) ...
21. Having set out the statutory scheme, in brief, it is axiomatic that there is a marked difference in between the proceedings under Section 20 and 21 of the Act. The first and foremost distinction is that under Section 20, before a proceeding c in be initiated, termination of tenancy is sine qua non. But it is not so for getting an accommodation which is in possession of a tenant released under Section 21 of the Act. On the contrary, there is an inbuilt intention of the Legislature which is manifested under Sub-section (4) of Section 21 that an order of release under Sub-section (1) or Sub-section (1-A) or Sub-section (2) which provide that an order under Sub-section (1) or (1-A) or Sub-section (2) may be made notwithstanding that a tenancy has not been determined. Section 21 of the Act provides that an application for release under aforesaid Sub-sections (a) and (b) can be filed on the availability of any of the grounds specified therein which is relevant to seek a release order against a tenant. To put it differently, the right conferred by Section 21 of the Act does not depend upon any overt act of the landlord such as determination of tenancy before filing of a release application. It follows that as soon as a statutory ground on a particular set of circumstance is available to a landlord, if he so wishes, may file release application before the Prescribed Authority and the filing of such release application is not in any way of fettered by any act of the landlord. Sub-section (6) of Section 21 which provides for automatic determination of lease by operation of law also supports the above view point.
22. A some what similar controversy was referred to a Division Bench to answer the question, whether an agreement between the parties that the landlord will have no right to evict the tenant from the premises in dispute so long as he continues to pay rent provides a complete immunity to a tenant from being evicted from the premises under any condition and precludes the landlord from pressing his application for release of the accommodation under Section 21(1)(a) of the Act even though the need of the landlord may be found to be very pressing, bonafide and genuine. The said question has been answered in favour of the landlord on the footing that a compromise does not take away the right of a landlord to bring the other side for ejectment, if other grounds exist or where he files an application for release under Sub-section (1) or (2) of Section 21 of the Act. It is Haji Mohd. Amin v. VIIth Additional District Judge and Ors. 1988 Alld. Civil Journal 627. In the said case, a compromise which has been reproduced in the report, reads as follows:
Yah Ki Agar Muddalay Kiraya Ada Karata Rehega To Muddai Ko Dukan Kirayedari Se Muddalay Ko Bedakhal Karane Ka Hak Hasil Na Hoga.
23. In this Division Bench decision, an earlier Division Bench decision in Raj Narain Jain v. Firm Sukhnand Ram Narain and Ors. was distingushed with the following observation:
5... As Section 21(1)(a) is a provision entitling a landlord to apply for release on the ground of his or his family members personal need. Clause (b) of Sub-section (1) of Section 21 gives another ground of the landlord for release, that is, when the house is in dilapidated condition and is required re-construction after demolition. 1 the right of the petitioner-tenant, as claimed before us, is so absolute that neither Section 21(1)(a) or (1)(b) would apply that will create a situation which is abhorrent to law. A tenant cannot insist on living in a house although the accommodation is in a dilapidated condition. If that is conceded to, his property would come to ruins and in that even he would just watch standing by and doing nothing.
6. In fact there is a difference between Sections 20 and 21. Section 20 enumerates the various grounds on which a suit for ejectment can be brought by a landlord against the tenant whereas Section 21 takes care of the two situations mentioned therein for release of the pa irises on the ground specified therein. Before filing the application under Section 20, the tenancy would have to be terminated whereas such is not required by Section 21 of the Act. In Sheikh Bundu v. State of U.P. and Ors. 1977 Alld. Rent cases 454(a) Division Bench of this Court held that both the proceedings are independent of each other being based on separate causes of action. What is debarred by the compromise arrived at in between the parties is that on the basis of the default already committed, which was the subject matter of Suit No. 123 of 1975, the tenant was not liable to be ejected. The compromise does not take away the right of a landlord to either bring a suit for ejectment if other grounds exist or where he files an application for release under Sub-sections (1) and (2) of Section 21 of the Act. By the compromise the parties intended only to settle the subject-matter, which was in dispute, in that case.
24. It has also taken note of a Judgment of the Apex Court in the case of lndramohan Lal v. Ramesh Khanna wherein the Supreme Court with reference to the provisions of Delhi Rent Control Act which are para materia with Section 21 of the U.P. Act No. 13 of 1972 has held that section is complete code itself. The Division Bench has clearly opined that the compromise entered into in a suit under Section 20 does not debar the landlord from moving an application for release under Section 21 of the Act. The said decision fully clinches the issue.
25. While preparing the judgment, I could lay my hand on a judgment of the Apex Court in Laxmi Das Bapu Das Darbar and Anr. v. Rudravva (Smt) and Ors. which is also on the subject, involved herein. The said decision, though was not relied by the either side, but needs to be noted. It was a case under Karnatak Rent Control Act. The tenant was holding fixed term lease of 99 years. Before expiry of lease of the said term an application for eviction of tenant was filed by the landlord on the ground of reasonable and bonafide requirement. A controversy arose as to what would be the effect of the lease deed for fixed term, the term of which has not expired vis-a-vis the release application filed by the landlord on the ground of bonafide need. The Apex Court considered Section 21 of the Karnatak Rent Control Act, 1961 which is reproduced in para-16 of the judgment and decided the controversy by holding that Rent Control Act is a beneficial piece of legislation and non-obstinate clause therein will not in any way prejudice the right of a tenant under a fixed term lease and till the expiry of lease period, the application for eviction is not maintainable.
26. On first reading of the judgment of the Apex Court, one gets an impression that the law, as laid down therein, impliedly dis-approves the judgment of the Division Bench of this Court in the case of Haji Mohd. Amin (supra), but on a close reading of the said judgment it is not so. The central theme of the judgment of the Apex Court is on the word 'only' as used in Section 21 of that Act. The Apex Court has laid emphasis on the word 'only' with reference to ground of eviction and held that eviction of a tenant can be sought for only on the grounds mentioned therein and not on any other plea. To my, it appears that the observation made by the Apex Court should be read in the statutory set up as contained in Section 21 of the Karnatak Rent Control Act, 1961 and the same principle cannot be imported herein. The reason is that Section 21 of Karnatak Rent Control Act is pari materia to Section 20 of U.P. Act No. 13 of 1972 and not to Section 21 of U.P. Act No. 13 of 1972 which provides grounds of release in addition to the ground to filing suit for eviction, as provided under Section 20(2) of the Act.
27. Time and again it has been laid down by the Apex Court that each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect In deciding such cases, one should avoid the temptation to decide cases as said by Cordozo) by matching the colour of one case against the colour of another. To decide, therefore, on which side of the line a case falls, the bro; d resemblance to another case is not all decisive. It has been so held in Ashwani Kumar v. U.P. Public Service Commission . It has been followed and quoted in Vemareddy K. Reddy and Anr. v. State of Andhra Pradesh .
28. Nilesh Nand Kumar Shah v. Sikandar Aziz Patel (2002) 6 SCC 67 is an authority for the proposition that even in absence of non-obstinate clause a Rent Control Legislation being a special beneficial provision shall over ride the provisions of any General Legislation in case of a conflict.
29. In Joginder Pal v. Naval Kishore Behal the Apex Court has held that although the purpose of Rent Control Legislation is to restrict increase of rent and eviction of a tenant in urban areas, special legislation has taken care of the grounds provided for eviction, one of them being the requirement of the landlord. The Court has to keep a balance between the need of protecting the tenant from unjustified eviction and need for eviction when ground for eviction is one such as the requirement of the landlord.
30. In Balwant Singh and Ors. v. Anand Kumar Sharma and Ors. . The Apex Court has quoted an observation from its earlier judgment in E. Palanisany v. Palanisamy which reads as follows:
5. Recently, in E. Palanisamy v. Palanisamy a Division Bench of this Court observed:
The rent legislation is normally intended for the benefit of the tenants. At the same time, it is well settled that the benefits conferred on the tenants through the relevant statutes can be enjoyed only on the basis of strict compliance with the statutory provisions. Equitable consideration has no place in such matters.
6. It is also pertinent to note that the Rent Control Act is not only a beneficial enactment for the tenant but also for the benefit of the landlord (See Shri Lakshmi Venkateshwara Enterprises (P) Ltd. v. Syeda Vajhiunnissa Begum.
31. The learned Counsel for the respondent placed reliance upon Bhoop Singh v. Ram Singh Major and Ors. and S. Noordeen v. V.S. Thiru Venkita Reddiar and Ors. wherein it has been held that under Explanation to Clause (vi) of Section 17(2) of Registration Act a decree or order including compromise decree creating new right, title or interest in presenti in immovable property of value of Rs. 100/- or above is compulsory registrable. Indisputably, the petitioner prior to the filing of SCC suit for his eviction wherein compromise was entered into was month to month tenant. According to him under the compromise a right of tenancy has been created in his favour to hold the tenanted property during his life time. Such a right is sought to be created in immovable property of more than Rs. 100/- and can be created only by a registered document even if it is a compromise decree. It is not at all required to deal with this matter any further us this Court is of the view that in the present case it was for less than one year and no registration is required.
32. The finding recorded by the court below on the question of bonafide need and the comparative hardship was not challenged by the learned Counsel for the petitioner. It was pointed out by the learned Counsel for the respondent that the landlord with his family which consists of five adult members including newly married son and daughter-in-laws is residing only in two room accommodation. On the other hand, the tenant had got a residential accommodation being house on Mohalla Kabir Nagar Colony, Durgapur, Varanasi in the name of his wife Smt. Geeta. It is interesting to note that the petitioner tenant or earlier occasion, antecedent to the compromise, represented that the-house registered in the name of Smt. Geeta Banerjee is not his wife. I; his deposition dated 6th of April, 1994 recorded in suit No. 24 of 2001 it has been clearly deposed that Smt. Geeta Banerjee is not his wife The landlord entered into a compromise believing the said statement t be correct. The said statement of the petitioner tenant ultimate proved to be false. It has come on the record that during the pendent, of the release proceedings the landlord sold away the said house for sum of Rs 3.60,000/-. The petitioner tenant came out with explanation that the said house was sold by him under compelling circumstances., it was in occupation of a third party. Ultimately, the said averment too is belied by own admission of the petitioner made in the sale deed which is reproduced below:
The vendor is in actual possession over the said flat as absolute owner.
Where as the vendor has decided to settle at other place, hence the aforesaid house is of no use for the vendor and it would be better to sell the said flat and the consideration amount may be utilized for acquisition of other residential accommodation at other place, and with his intention the vendor decided to sell the said flat.
33. It is axiomatic that the petitioner tenant is taking shifting stand and he does not deserve any sympathy from the court.
34. The extent of the accommodation which is available under the tenancy of the petitioner has been described as follows in the supplementary counter affidavit:
First Floor Accommodation.
(i). Two rooms of 8 x 10' size.
(ii). Two rooms of 8 x 12' size.
(iii). One room of 4 x 6'size.
(iv). Toilet - 1
(v). Lobby - 1
(vi). Balcony.
Second Floor accommodation.
(i). Two rooms of 8 x 12'
(ii). One toilet.
35. While the accommodation available with the landlord is as follows:
i). One room of 8x12' size.
ii). One room of 8x10' size.
iii). One kitchen, lobby and toilet.
36. The family members of the landlord including six adult members who are confined in just two rooms whereas the petitioner along with his wife and an adult daughter is in occupation of seven rooms, two toilets and one lobby.
37. In this fact situations, the finding of the appellate court that the need of the landlord is bonafide genuine and he will suffer greater hardship in case the release application is rejected, is perfectly justified and calls for no interference.
38. In the nut shell the conclusion of the above discussions is that the decree of the civil court was not required to be registered under Section 107 of the Transfer of Property Act. Firstly, no lease was created in favour of the petitioner and the execution of the decree for possession was postponed o the fulfillment of the conditions mentioned therein during the life time of the petitioner. Secondly, in view of the judgment of this Court in case of B.I Sinha (supra), the lease was for uncertain period and was not for more that one year and its registration under the Registration Act was not compulsorly required. The other conclusion is that the terms and conditions contained the compromise decree will not in any way affect or impair or inhibit right o, the landlord statutorily conferred on him by virtue of Section 21 of U.P. Ac: No. 13 of 1972. It follows that the judgment of the court below is on tern, firma and cannot be faulted. No other point was pressed by the learned counsel for the petitioner.
39. In view of the above discussion, there is no merit in the writ petition. The writ petition is dismissed summarily.