Civil Misc. Writ Petition Nos. 12809 of 2003, 34723 and 1355 of 2010. Case: Mishri Lal Karak Vs Dinesh Chandra Agarwal and Others. High Court of Allahabad (India)
| Case Number | Civil Misc. Writ Petition Nos. 12809 of 2003, 34723 and 1355 of 2010 |
| Counsel | For Appellant: Kshitij Shailendra, Shailendra Kumar Johri and Arvind Srivastava, Advs. And For Respondents: A. K. Gupta, Ravi Kant, Swapnil Kumar, M. K. Gupta and S.C. |
| Judges | Sudhir Agarwal, J. |
| Issue | Constitution of India - Articles 22, 226, 227; Registration Act, 1908 - Sections 17, 17(1), 34, 49; Transfer of Property Act, 1882 - Sections 53A, 54; Uttar Pradesh Urban Buildings (Regulation of Letting, Rent & Eviction) Act, 1972 - Sections 20(2)(a), 21(1)(b), 3(j) |
| Citation | 2012 (11) ADJ 700, 2013 (1) ALJ 779 |
| Judgement Date | October 01, 2012 |
| Court | High Court of Allahabad (India) |
Judgment:
Sudhir Agarwal, J.
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These two writ petitions and the second appeal relate to the same property. The parties are also common. The second appeal has been nominated to this Court by Hon'ble Chief Justice's order dated 31.8.2012 passed in Writ Petition No. 12809 of 2003.
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Since pleadings are complete, as agreed and requested by learned counsel for the parties, I have heard all these cases together and proceed to decide the same by this common judgment.
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Sri Kshitij Shailendra, Advocate has appeared on behalf of petitioner as well as appellant, the same person, namely Mishri Lal Karak, Son of Shri Sito Karak (hereinafter referred to as "petitioner"). Sri Ravi Kant, Senior Advocate assisted by Sri Swapnil Kumar has put in appearance on behalf of Sri Dinesh Chandra Agrawal, respondent No. 3 in the second appeal and respondent No. 1 in both the writ petitions (hereinafter referred to as "respondent-landlord").
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The dispute relates to a house measuring about 200 sq. yards situated at Mohalla Azad Road, Chandausi. It was owned by Sri Kunj Bihari Lal and his wife Smt. Angoori Devi. The petitioner came to be inducted as tenant sometimes in 1991 and started paying rent to the then owners/landlords namely Kunj Bihari Lal and Angoori Devi. The petitioner claimed that an agreement to sell the disputed house was executed by the above co-owners with the petitioner on 29th March, 1992. A copy of the aforesaid agreement is on record as Annexure 1 to the writ petition No. 34723 of 2010. The petitioner claimed that sale of the house was agreed on a consideration of Rs. 1,10,000/- out of which Rs. 35,000/- (Rs. 10,000/- and Rs. 25,000/-) was paid on or before the date of execution of the agreement dated 29.3.1992. Further, the petitioner was to pay Rs. 25,000/- by 15th June, 1992 and Rs. 50,000/- at the time of execution of sale-deed i.e. by 30th August, 1992. The agreement admittedly was not registered though so required under the provisions of Registration Act, 1908 (hereinafter referred to as "Act, 1908").
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The erstwhile owners, however, executed a sale-deed, duly registered, on 6th August, 1993 in favour of Dinesh Chandra Agarwal son of Sri Ram Prasad Agarwal (the respondent-landlord) for a portion of disputed building i.e. about 48 sq. yards and for rest of the area, another sale-deed with the aforesaid respondent-landlord was executed on 26th August, 1994.
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After execution of first sale-deed, the respondent-landlord filed an application dated 10th January, 1994 under Section 21(1)(b) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as "Act, 1972") for eviction of petitioner so as to demolish the building for its reconstruction. The aforesaid application was registered as Case No. 1 of 1994 before Prescribed Authority, Chandausi. Simultaneously, a notice was also given by respondent-landlord terminating his tenancy.
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The petitioner contested the same by filing written statement dated 23rd January, 1995. He also filed an original suit No. 17 of 1995 (subsequently renumbered as O.S. No. 719 of 2000) against Sri Kunj Bihari Lal and his wife Smt. Angoori Devi for specific performance.
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It is an admitted case of the parties that Kunj Bihari Lal and his wife Angoori Devi did not contest the suit at all. On the contrary respondent-landlord filed a Small Cause Suit No. 7 of 1995 in the Small Cause Court seeking ejectment of petitioner from the disputed building, on the ground of Section 20(2)(a) of Act, 1972 i.e. default in payment of rent, having already received notice dated 10.1.1994 determining tenancy of the petitioner.
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It is said that during pendency of the proceedings, an application was filed by petitioner before Prescribed Authority and vide order dated 14th August, 1996 he was permitted to carry out certain repairs in the disputed building. The said order of repair was challenged by respondent-landlord in Writ Petition No. 27692 of 1996 but the writ petition was dismissed on 21st September 2010 as infructuous.
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The Prescribed Authority vide order dated 1st February, 1997 allowed release application filed under Section 21(1)(b) of Act, 1972 whereagainst petitioner filed Rent Control Appeal No. 2 of 1997 which was dismissed vide Appellate Court's judgment dated 10th March, 2003. The writ petition No. 12809 of 2003 (hereinafter referred to as "first petition") has been filed by the petitioner assailing these two orders dated 1.2.1997 of Prescribed Authority and 10th March, 2003 of Appellant Authority.
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In the aforesaid writ petition, respondent-landlord has been impleaded as respondent No. 1 and respondent Nos. 2 and 3 are formal parties i.e. Prescribed Authority and Appellant Court.
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S.C.C. Suit No. 7 of 1995 filed by respondent-landlord was dismissed by Small Cause Court, Chandausi vide judgment and order dated 31st July, 2008 on the ground that on 10th January, 1994, the respondent-landlord did not own the entire property in dispute and therefore, notice terminating tenancy given on 10th January, 1994 was illegal. There was no relationship of landlord and tenant on that date and hence eviction under Section 20(2)(a) of Act, 1994 could not have been sought by him. The matter was taken in revision i.e. S.C.C. Revision No. 32 of 2008 and learned Revisional Court i.e. Additional District Judge, Chandausi vide judgment dated 3rd March, 2010 allowed the revision, set aside Trial Court's judgment dated 31st July, 2008 and decreed the suit. He directed the petitioner to hand over vacant possession of the property in dispute to respondent-landlord. He has also decreed recovery of arrears of rent/damage for the period of 6th August, 1993 to 13th March, 1995 and the mesne profit. The Writ Petition No. 34723 of 2010 (hereinafter referred to as "second petition") has been filed by petitioner challenging revisional judgment dated 3.3.2010.
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Now comes petitioner's own suit i.e. Original Suit No. 17 of 1995 (renumbered as 719 of 2000). The suit was dismissed by Trial Court, i.e. Civil Judge, Senior Division, Chandausi vide judgment dated 30th August, 2007, whereagainst petitioner preferred Civil Appeal No. 110 of 2007 which was dismissed by Appellate Court vide judgment dated 16th September, 2010. The second appeal No. 1355 of 2010 has been filed aggrieved by the aforesaid two judgments. The appeal was presented in the Registry on 15th December, 2010 and it could not be listed for admission. On 16th August, 2011 Sri Mishri Lal Karak (plaintiff-appellant) died. vide order dated 7th September, 2012, legal heirs/representatives of deceased petitioner have been brought on record.
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Now, only one more fact may be mentioned, which will have some relevance for considering these matters on merits. In the original suit filed by petitioner, besides the two erstwhile owners namely Sri Kunj Bihari Lal (now died) and Smt. Angoori Devi, widow of late Kunj Bihari Lal, the respondent-landlord was also a party, as defendant No. 3. The defendant Nos. 1 and 2 i.e. the erstwhile owners did not contest the matter at all. It has been contested by defendant No. 3 namely the respondent-landlord. Therefore, for all practical purpose, entire dispute, in all these matters, is between the petitioner and the respondent-landlord.
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First of all I take up petitioner's second appeal. Seven substantial questions of law have been framed in the memo of appeal which in substance are, whether agreement dated 29th March, 1992 was compulsorily registrable or not so as to confer benefit upon the petitioner/appellant; whether in absence of any contest by executants of agreement dated 29th March, 1992, subsequent transferee i.e. contesting respondent could maintain his defence in a suit for specific performance of the agreement; whether the respondent-landlord could have validly determine tenancy of the petitioner on 10th January, 1994 though the sale-deed executed by that time in his favour covered a smaller area of the total property in dispute and/or whether respondent-landlord can be said to be authorized and entitled to determine tenancy of the petitioner by issuing notice on 10th January, 1994; whether proceedings under Section 21(1)(b) at the instance of subsequent transferee were maintainable having been initiated on the date he had not become owner of the entire property; whether relationship of petitioner with erstwhile owner ceased to be that of landlord and tenant after execution of agreement dated 29th March, 1992.
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I find that Trial Court had framed nine issues including whether alleged agreement dated 29th March, 1992 was actually executed by defendant Nos. 1 and 2 or not. The issue was decided in favour of petitioner holding that agreement was executed by defendant Nos. 1 and 2 though it is also admitted that it was not registered. This issue has not been contested before me.
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However, issue No. 2, whether pursuant to agreement dated 29th March, 1992, petitioner was given possession/authority over the property in dispute has been decided against the petitioner holding, that, since he was already in possession of disputed property and continued in possession, in order to show "something has been done" as provided in Section 53A of Transfer of Property Act, 1882 (hereinafter referred to as "Act, 1882") pursuant to agreement dated 29th March, 1992, he failed to show some further action on his part. It is in this context issues No. 3 and 8, which were framed with reference to Section 53A of Act, 1882 read with Section 17 of Act, 1908 were considered and decided against the petitioner. The Appellate Court has completely concurred with the decision of Trial Court on these issues. Since the above substantial issues stood decided against petitioner, his suit was dismissed.
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I propose to consider first the question, whether agreement dated 29.3.1992 ought to have been registered compulsorily and if not so registered, its consequences, legal or otherwise, if any...
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