# Rajendra Singh Jayas v. Sri Vishal Khurana

- **Citation:** (2023) 12 ILRA 133
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-11-29
- **Case number:** Matters Under Article 227 No. 2940 of 2017
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajendra-singh-jayas-v-sri-vishal-khurana-49463
- **Pages:** 13

## Headnote

134 INDIAN LAW REPORTS ALLAHABAD SERIES
Sri Randhir Jain, Sri Mayank, Sri Rajesh
Gupta, Sri Atul Dayal (Sr. Advocate)

A. Civil Law - Constitution of India,1950Article 227-Rent Control Act,1972-Section
12/16-the
respondent
made
an
application for release on the ground of
bona
fide
need-the
Rent
Control
&
Eviction officer release the application,
directing release of the property in dispute
in favour of the respondent-both the
orders of vacancy and release challenged
by the petitioner in revision which was
dismissed-both parties claimed title to the
property
in
dispute-no
limitation
prescribed
for
initiation
of
release
proceedings
relating
to
a
deemed
vacancy-the Revisional court held that
inorder to give rise to the fiction of
deemed vacancy a mere occupation by a
person who is not a member of the
landlord's or the tenant's family as the
case may be, is enough-In the instant
case, it would arise because the said
owner (died) allowed it during his lifetime
to be occupied by the petitioner, who is
not a member of his family as defined
under the Act-Therefore, the conclusions
drawn by the authorities below that a
deemed vacancy came into existence
cannot
be
faulted-More
so,
the
communication to the Nagar Palika about
the construction being completed has not
been considered reliable by the authorities
below-Thus, no interference requires by
this Court.(Para 1 to 36)

The writ petition is dismissed. (E-6)

List of Cases cited:

## Text

_Characters 0–39,832 of 45,272. This is a partial read: ask again with offset=39832 for what follows._

12 All. Rajendra Singh Jayas Vs. Sri Vishal Khurana
133
custody of the minor who is just 3 years
and 7 months of age vests with the mother
as observed by the Supreme Court in the
case of Roxann Sharma vs. Arun Sharma
reported in [AIR 2015 (SC) 2232].

15. A coordinate Bench of this Court
in Reshu alias Nitya and others versus
State of U.P. and others (2021)6 ALJ 632
while considering the similar allegations
and also considering the judgment in Nil
Ratan Kuundu's case (supra) in detail has
held as under in para 58 :

"58. The aforementioned facts do
not indicate that the custody of the minor
with the respondent no. 4 can in any
manner be said to amount to an illegal and
improper detention. The child from her
infancy, when she was of a tender age,
appears to be living with her maternal
grand-father. This together with the fact
that the father who is claiming custody is
named as an accused in a criminal case
relating to the death of the mother of the
corpus, would also be a relevant factor.
The other considerations which would have
a material bearing would be the necessity
of the child being provided loving and
understanding care, guidance and a warm
and compassionate relationship in a
pleasant home, which are essential for the
development to the child's character and
personality."

16. Thus, keeping in view the law
laid down by the Supreme Court in the case
of Nil Ratan Kundu (supra) the fact that
deponent is facing trial for the heinous
offence committed upon the minor and
considering the tender age of the detenue,
in peculiar facts of this case, this Court is
of the view that custody of the detenue
should be given to the deponent-Rehana.

17. Accordingly, the writ of habeas
corpus is issued directing the opposite party
No.4 to hand over the custody of the
detenue to the deponent of the petition
namely, Rehana forthwith. The respondent
Nos.2 and 3 shall ensure the compliance of
this order.

18. Before parting with, it is made
clear that this Court has passed this order
considering the emergent need to intervene
and
looking
to
the
welfare
and
safeguarding in the interest of detenue. This
Court has not adjudicated the rights of the
parties to have the custody of the detenue.
All pleas are left open to the parties to get
their rights decided regarding the custody
of the detenue before the competent court.
This order shall be subject to any order
passed by the said court in the appropriate
proceedings.

With the aforesaid observations,
the petition stands disposed of.
----------
(2023) 12 ILRA 133
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.11.2023

BEFORE

THE HON'BLE J.J. MUNIR, J.

Matters Under Article 227 No. 2940 of 2017
(Civil)

Rajendra Singh Jayas ...Petitioner
Versus
Sri Vishal Khurana ...Respondent

Counsel for the Petitioner:
Sri Pankaj Agarwal, Sri Shivam Agrawal, Sri
Pramod Kumar Jain (Sr. Advocate)

Counsel for the Respondent:
134 INDIAN LAW REPORTS ALLAHABAD SERIES
Sri Randhir Jain, Sri Mayank, Sri Rajesh
Gupta, Sri Atul Dayal (Sr. Advocate)

A. Civil Law - Constitution of India,1950Article 227-Rent Control Act,1972-Section
12/16-the
respondent
made
an
application for release on the ground of
bona
fide
need-the
Rent
Control
&
Eviction officer release the application,
directing release of the property in dispute
in favour of the respondent-both the
orders of vacancy and release challenged
by the petitioner in revision which was
dismissed-both parties claimed title to the
property
in
dispute-no
limitation
prescribed
for
initiation
of
release
proceedings
relating
to
a
deemed
vacancy-the Revisional court held that
inorder to give rise to the fiction of
deemed vacancy a mere occupation by a
person who is not a member of the
landlord's or the tenant's family as the
case may be, is enough-In the instant
case, it would arise because the said
owner (died) allowed it during his lifetime
to be occupied by the petitioner, who is
not a member of his family as defined
under the Act-Therefore, the conclusions
drawn by the authorities below that a
deemed vacancy came into existence
cannot
be
faulted-More
so,
the
communication to the Nagar Palika about
the construction being completed has not
been considered reliable by the authorities
below-Thus, no interference requires by
this Court.(Para 1 to 36)

The writ petition is dismissed. (E-6)

List of Cases cited:
1. Kanaklata Das & ors. Vs Naba Kumar Das &
ors. (2018) 2 ARC 491

2. Mansaram Vs S.P Pathak & ors. (1984) ARC
17

3. Arun Kumar Joseph Vs Victor Sameul
Mathews & anr. (2013) 2 ARC 884

4. Navneet Prakash Gupta & anr.. Vs Bishan
Chand & ors. (2003) 1 ARC 187
5. S. Thangappan Vs P. Padmavathy (1999) 7
SCC 474

6. Krishna Chandra Srivastava & anr.. Vs Distt
Judge, Alld & ors. (1997) 2 ARC 374

7. Dr. Ranbir Singh Vs Asharfi Lal (1995) 6 SCC
580

8. Shamim Akhtar Vs Iqbal Ahmad & anr..
(2000) 8 SCC 123

(Delivered by Hon'ble J.J. Munir, J.)

1. This petition under Article 227 of
the Constitution is directed against an order
of vacancy followed by release passed by
the Rent Control and Eviction Officer,
Mathura in exercise of powers under
Section 12/16 of UP Act No.13 of 1972
(for short, 'the Act'), which has been
affirmed in revision under Section 18 of the
Act by the learned Additional District
Judge.

2. The facts giving rise to this petition
are these:

An application for allotment of house
bearing No. C-55 (new No.212/ 55-C),
Radha Nagar, Mathura, was moved before
the Rent Control and Eviction Officer,
Mathura by Omveer Saraswat son of B.D.
Saraswat. The premises last mentioned,
shall hereinafter be called, 'the property in
dispute'.
Upon
registration
of
the
application for allotment on the file of the
Rent Control and Eviction Officer, an
inspection was carried out by the Rent
Control Inspector. The Rent Control
Inspector
submitted
his
report
dated
08.08.2014, which says, in substance, that
at the time of inspection, the Rent Control
Inspector found Rajendra Singh Jayas at
the site. According to the Inspector,
Rajendra
Singh
Jayas
facilitated
his
inspection and informed him that he (Jayas)
12 All. Rajendra Singh Jayas Vs. Sri Vishal Khurana
135
is the owner and landlord of the property in
dispute. He said that he runs a security
agency in the property in dispute under the
name and style of Jayas Security Agency.
The agency aforesaid is engaged in the
provision of security services. Jayas told
the Inspector that he had one room in his
possession admeasuring 20x13 feet and
another room admeasuring 14x20 feet,
besides a lavatory, bathroom and kitchen.
On the first floor, he had constructed a
single room during the years 1990, 1991
and 1992 through the agency of one Nand
Ram, a Civil Contractor and a native of
Jaisinghpura, Mathura. The report further
on says that Smt. Archana wife of Rajendra
Singh Jayas had her name entered in the
house tax and water tax records, which she
regularly deposits, and Jayas asserted that
he was the unquestioned owner of the
property in dispute since the past 24 years.

3. It appears that some documents
were produced before the Rent Control
Inspector by Jayas during the inspection.
After the Rent Control Inspector's report
had been received by the Rent Control and
Eviction Officer (for short, 'the RC & EO'),
notice in the case registered under Section
12 of the Act was issued to both sides.
Rajendra Singh Jayas, who will hereinafter
be referred to as 'the petitioner', filed his
objections to the allotment application on
16.09.2018 before the RC & EO, wherein
he said that the applicant for allotment had
no need for the property in dispute,
inasmuch as he already had available with
him a house in the Civil Lines of Mathura.
It was also said in the objections that the
applicant for allotment had wrongly said
that the petitioner was in unauthorized
occupation of the property in dispute.
Rather, he was the owner thereof where his
family lived. Also that, the petitioner had
his business in the same premises under the
name and style of Jayas Security Agency.
The former owner of the property in
dispute was one Balraj Khurana son of
Raghunath Rai, who had received the
property in dispute from his father. Balraj
Khurana lived in the said property
occupying it as its owner. Balraj Khurana
was
not
financially
well
off.
The
petitioner's family had helped Balraj
Khurana, extending substantial financial
aid to him, besides help needed in social
matters and dealings. This gesture by the
petitioner had led to a strong bonding
between him and Balraj Khurana.

4. In the year 1989, Balraj Khurana
migrated to Canada and settled there.
Since, the petitioner had helped Balraj
Khurana financially when migrating to
Canada, he gave the property in dispute to
the petitioner through a will. Balraj
Khurana is now dead and the petitioner is
the owner of the property under reference.
The property in dispute is a house built on a
plot of 100 square yards. This house had
been transferred to Raghunath Rai by the
Government of India in settlement of a
refugee claim. It comprised a room, a
verandah and a lavatory, when transferred
to the petitioner in the year 1989. It was in
a dilapidated state. The further case set up
by the petitioner in his objections to the
allotment application was that his ration
card, gas connection and the voters list
showed him to be a resident of the property
in dispute. The petitioner took objection,
particularly, to the effect that he was never
a tenant in the property in dispute nor an
unauthorized occupant. The application for
allotment deserves to be rejected in the
absence of vacancy.

5. Another written statement was filed
before the RC & EO by Vishal Khurana on
30.09.2018. He said that the property in
136 INDIAN LAW REPORTS ALLAHABAD SERIES
dispute was owned by his grandfather, the
late Raghunath Rai, who had been assigned
the said property on 28.01.1960 by the
Government. Raghunath Rai had executed
a will dated 08.12.1973 in favour of
Virendra Khurana, a son of Raghunath Rai.
Vishal Khurana had taken it from Virendra
Khurana through a registered sale deed
dated 07.05.2012 for a valuable sale
consideration
of
Rs.30
lakhs.
Balraj
Khurana had unlawfully let out the
property in dispute to Rajendra Singh, from
whom he realized rent. He had no right,
title or interest to or in the property in
dispute.
The
house,
comprising
the
property in dispute, has been assessed to
house tax by the Nagar Palika, Mathura
since the year 1963. It is incorrect that
Jayas
ever
helped
Balraj
Khurana
financially. Whatever money was paid by
Jayas to Balraj Khurana was towards rent.
The property in dispute is an old
construction and the assertion regarding
Jayas's possession continuing over a period
of 25 years, is incorrect. The property in
dispute is vacant in the eye of law. Once,
vacancy is declared, according to Vishal
Khurana, he would make a release
application. There was no consent given to
allotment of the property in dispute by
Vishal Khurana. Vishal Khurana shall
hereinafter
be
referred
to
as
'the
respondent'. The RC & EO permitted
parties to adduce evidence on affidavit and
also file documents.

6. After hearing the learned Counsel
appearing for parties, the RC & EO vide
order dated 28.02.2015 declared vacancy.
The
respondent
thereupon
made
an
application for release on the ground of
bona fide need under Section 16 of the Act.
The application for release was opposed by
the petitioner. The RC & EO vide an order
dated 08.05.2015 allowed the release
application,
directing
release
of
the
property in dispute in favour of the
respondent.

7. Both the orders of vacancy and
release made by the RC & EO were
challenged by the petitioner through a
revision under Section 18 of the Act before
the District Judge of Mathura, where it was
registered as Rent Control Revision No.1 of
2015. The learned Additional District
Judge, Court No.6, Mathura, before whom
the revision came up for hearing upon
assignment, dismissed it by a judgment and
order dated 27.04.2017, affirming the
orders of vacancy and release.

8. Aggrieved, the petitioner, who is in
occupation of the property in dispute, has
preferred this petition under Article 227 of
the Constitution.

9. Heard Mr. Shivam Agrawal
holding brief of Mr. Pankaj Agarwal,
learned Counsel for the petitioner and Mr.
Randhir Jain, learned Counsel appearing on
behalf of the respondents.

10. It is submitted by the learned
Counsel for the petitioner that the orders of
vacancy and release passed in this case are
without jurisdiction, as the rights of parties
are beyond the scope of proceedings under
Section 12/16 of the Act. It is emphasized
that the petitioner is not a tenant in the
property in dispute on the landlord's behalf.
Rather, he is in occupation thereof in his
own right. He holds title to the said
property that he has acquired under Balraj
Khurana's will dated 11.05.1989. He does
not pay rent to anyone, and, therefore, is
not a tenant. The respondent, on the other
hand, claims title to the property in dispute
from Virendra Khurana, the other son of
Raghunath Rai and Balraj Khurana's
12 All. Rajendra Singh Jayas Vs. Sri Vishal Khurana
137
younger brother, who is said to have
received the property in dispute through a
will
made
by
Raghunath
Rai
on
08.12.1973. The submission is that both
parties claim title to the property in dispute
from the family of Raghunath Rai and what
this
case,
therefore,
presents
is
a
complicated question of title to be decided
between the petitioner and the respondent.
It is beyond the scope, according to the
petitioner, of proceedings for vacancy and
release under the Act. Learned Counsel
submits that it ought to be decided by a
court of competent jurisdiction in a duly
constituted title suit.

11. It is next submitted by the learned
Counsel for the petitioner that this is not a
case of initiation of proceedings for release
at the instance of the landlord. It is a case
where vacancy has been declared on the
application of a prospective allottee. The
petitioner is admittedly in occupation of the
property in dispute to the knowledge of
everyone. He has remained in possession
without objection from anyone, including the
respondent, from the year 1989 to the year
2014. It is emphasized that when the Rent
Control Inspector visited the property in
dispute
on
08.08.2014,
the
petitioner
indicated his stance that it was a title dispute
and the Inspector's report mentions it. The
petitioner's objections show clearly that he
occupies the property in dispute on the basis
of Balraj Khurana's will dated 11.05.1989.
He has never paid rent to anyone and
occupies the property under reference in his
own right. It is also urged that O.S. No.219 of
2015 is pending in the Court of the learned
Civil Judge (Sr. Div.), Mathura, seeking a
declaration
of
his
right
against
the
respondent, who is the sole defendant there.

12. The respondent has filed a written
statement, where the learned Counsel for
the petitioner says that there are averments
to show that his predecessor-in-title Balraj
Khurana was the owner. It is emphasized
that Paragraph Nos. 3 and 5 of the written
statement show that Balraj Khurana was
residing in the property in dispute, which
he gave away to the petitioner. The learned
Counsel for the petitioner has taken the
Court through the various affidavits, which
include an affidavit by the respondent. The
petitioner's affidavit says that execution of
the will by Balraj Khurana in the
petitioner's favour is admitted to the
respondent and also Balraj Khurana's
possession, and that of the petitioner passed
on by Balraj. The point, therefore, made
out is that this is a case, as already said,
where there is a thick title dispute
necessitating adjudication by the Court of
competent civil jurisdiction. Reliance in
this connection is placed on Kanaklata
Das and others v. Naba Kumar Das and
others,
2018
(2)
ARC 491.
It
is
additionally urged as a facet of the same
submission that the proceedings here do not
arise out of a landlord-tenant relationship
and are, therefore, not maintainable under
Section 12/16 of the Act.

13. The second submission that has
been advanced by the learned Counsel for
the petitioner is that the petitioner has been
residing in the property in dispute since the
year 1989. The present vacancy declared at
the instance of a prospective allottee,
initiating proceedings 25 years after the
petitioner entered into possession of the
property last mentioned, makes it a case of
utter inaction. It is urged that inaction by
the prospective allottee coupled with the
respondent's inaction, estops both of them
from urging that the petitioner's possession
of the property in dispute is unauthorized
occupation, leading to vacancy. Learned
Counsel for the petitioner places reliance
138 INDIAN LAW REPORTS ALLAHABAD SERIES
on the decision of the Supreme Court in
Mansaram v. S.P. Pathak and others,
1984 ARC 17. Learned Counsel has next
called in aid the holding in Arun Kumar
Joseph v. Victor Sameul Mathews and
another, 2013 (2) ARC 884, where their
Lordships of the Division Bench answered
the questions referred to by a learned
Single Judge in the following terms:

"(i)Answer to Question No.(a):-
Release application by landlord cannot be
treated to be barred by limitation even if
the same is presented after more than 12
years from the date person has entered into
an unauthorised occupation of the premises
covered by the Act.

(ii)Answer to Question No.(b):- In
absence of any limitation being provided
under the Act for initiation of release
proceedings in respect of deemed vacancy,
no period of limitation can be read in the
statutory provisions only on the principle that
a power vested in an authority must be
exercised within a reasonable time."

14. The next submission urged by the
learned Counsel for the petitioner is that in
order to determine as to who, amongst the
parties, is the landlord, one has to look to the
definition under Section 3(j) of the Act.
Section 3(j) defines the landlord as a person
to whom rent is payable. It is urged that both
the Authorities below did not test the party's
case by this standard to determine if there
was anyone who stood in the relationship of a
landlord to the petitioner. In support of his
submission,
learned
Counsel
for
the
petitioner has placed reliance upon the
authority of the Supreme Court in Navneet
Prakash Gupta and another v. Bishan
Chand and others, 2003 (1) ARC 187.

15. It is also urged by the learned
Counsel for the petitioner that there is
evidence patent on record to show that the
property in dispute is a new construction, to
which the Act does not at all apply. On this
short ground alone, according to learned
Counsel, all proceedings taken before the
Authorities below are ultra vires. In
support of this contention, learned Counsel
for the petitioner has drawn this Court's
attention to Paragraph Nos.7, 8, 9, 11 and
14 of the petitioner's affidavit filed before
the RC & EO, which he says shows the
construction to be new. He emphasizes that
there are documents on Pages Nos.100
onwards of the paper-book to show that
new constructions were raised by the
petitioner after the original dilapidated
were demolished. Information, in this
regard, was given to the competent
authority of the Nagar Palika, Mathura by
registered
post
on
30.09.1992.
The
construction being a new one, the Act did
not apply by virtue of Section 2(h).

16. Mr. Randhir Jain, learned Counsel
for
the
respondent
has
refuted
the
submissions advanced by the learned
Counsel for the petitioner. On the first issue
which Mr. Shivam Agarwal has urged, it is
said in answer that there is no such
complicated and arguable question of title
involved, which the Authorities seized of
proceedings under Section 12/16 of the
Act, may be incompetent to decide. He
submits that the will dated 11.05.1989 from
Balraj Khurana, on which the petitioner has
relied, was never produced in original
before the two Authorities below. A
photostat copy of the will was produced,
which does not inspire confidence, if not
precisely hit by the best evidence rule.
Learned Counsel for the respondent urges
that the will of 1989 propounded by the
petitioner is violative of Section 2(h) of the
Indian Succession Act, 1925, inasmuch as
it does not qualify for a will at all.
12 All. Rajendra Singh Jayas Vs. Sri Vishal Khurana
139

17. It is next submitted that Balraj
Khurana was not the owner; at the most he
was in occupation as the landlord, who
illegally let out to the petitioner. The
respondent's predecessor-in-title, on the
other hand, Virendra Khurana, was owner
by virtue of the respondent's grandfather's
will dated 08.12.1973. Virendra Khurana
raised a loan on the security of the property
in dispute, to the repayment of which, the
respondent contributed. Virendra Khurana
later on executed a sale deed dated
07.12.2012 in favour of the respondent.
The question of title once raised by the
tenant, the Authority under Section 12/16
of the Act has to scrutinize material, in
order to come to a conclusion, if the title
dispute raised is bona fide. To verify the
contention about title, the authority seized
of statutory proceedings, under Section
12/16 of the Act, has to look into evidence
relevant to the issue and the finding, that is
recorded, is one for the limited purpose of
testing the claim in statutory proceedings.
Reliance in this connection has been placed
upon the decision of the Supreme Court in
S. Thangappan v. P. Padmavathy, (1999)
7 SCC 474 and further upon the decision of
this Court in Krishna Chandra Srivastava
and another v. District Judge, Allahabad
and others, 1997 (2) ARC 374.

18. It is further urged by the learned
Counsel for the respondent that the
authority can always incidentally decide the
question of title, the final determination
thereof being always left to the Civil Court.
In aid of the said facet of his submission,
the learned Counsel for the respondent has
placed reliance upon the authority of the
Supreme Court in Dr. Ranbir Singh v.
Asharfi Lal, (1995) 6 SCC 580. He has
further relied upon the decision in Shamim
Akhtar v. Iqbal Ahmad and another,
(2000) 8 SCC 123. Learned Counsel for
the
respondent
has
also
urged
that
Raghunath Rai's will in favour of his
predecessor-in-title, Virendra Khurana was
never challenged by the other heirs of
Raghunath Rai. That apart, the will
propounded by the petitioner, has not been
proved in any title proceedings before a
court of competent jurisdiction.

19. To the second issue, that is to say,
about limitation urged on behalf of the
petitioner, it is submitted by the learned
Counsel for the respondent that the
question of limitation was never raised
before any of the Authorities below. It is
not even a ground taken in the petition. It is
next submitted that in the absence of any
limitation being provided under the Act for
initiation of proceedings for vacancy, no
period of limitation can be read into the
statutory provision on the principle that a
power vested in an Authority must be
exercised within a reasonable period of
time. For the submission, the learned
Counsel for the respondent, like the
petitioner, has reposed faith in the decision
of the Division Bench of this Court in
Arun Kumar Joseph (supra). To that part
of the petitioner's contention, where he says
that the property in question is a new
construction, to which the Act would not
apply, it is urged that both the Authorities
below have recorded a finding of fact based
on municipal assessment records from 1957
to 1965 and right up to 2008 that no new
construction has ever taken place or erected
in place of the old. The same old
constructions continue to exist on the spot,
according to the Amin's report submitted in
the injunction suit instituted by the
petitioner. It is next urged that the
information given by the petitioner to the
Municipal Authority about completion of
constructions, neither mention a date nor a
new assessment, relative to the new
140 INDIAN LAW REPORTS ALLAHABAD SERIES
construction. The new assessment has
never been produced by the petitioner to
substantiate the fact. In the circumstances,
age of the constructions would be governed
by the existing assessment records.

20. This Court has considered the
submissions advanced by learned Counsel
for the parties and perused the record.

21. The foremost issue that has been
raised on behalf of the petitioner is that the
cause here involves an intricate and
complicated question of title between the
petitioner on one hand and the respondent
on the other, that is beyond the scope of
statutory proceedings under Section 12/16
of the Act to determine. We do not think
that in these statutory proceedings, the
Authorities are debarred from incidentally
examining the questions of title; at least so
much of it, as would enable them to determine,
if indeed there is a bona fide dispute of title
between parties, or in their opinion, it is a mere
sham to resist the statutory proceedings from
taking their due course. Here, it is noteworthy
that the foot, on which the petitioner claims title
to the property in dispute, is a will executed in
his favour by Balraj Khurana, the elder son of
the first owner of the property in dispute,
Raghunath Rai. Surprisingly, in the objections
filed to the allotment application by the
petitioner, while it is asserted that Balraj
Khurana got the property in dispute from
Raghunath Rai during his lifetime and that on
account of economic support extended to Balraj
Khurana by the petitioner, the said Balraj, when
migrating to Canada, handed over the property
in dispute to the petitioner and has since died,
there is no mention of the will by Balraj
Khurana in his reply. There is not even a
whisper about it.

22. The first mention of this will finds
place in an affidavit dated 13.01.2015 filed
by the petitioner before the RC & EO,
where as rightly noticed by the learned
Additional District Judge, it is averred that
Balraj Khurana transferred the property in
dispute to the petitioner by his last will and
testament dated 11.04.1989 and delivering
possession thereof to him, went away to
Canada along with his family. The learned
Additional
District
Judge
has
taken
umbrage to the fact that the objection
makes for the petitioner's pleadings, where
this will is not even mentioned. It is
brought in through evidence in the form of
an affidavit, later on. It has been held by
the learned Judge that parties cannot prove
anything beyond their pleadings. These
proceedings being statutory proceedings,
not precisely governed by the Code of Civil
Procedure, even if the provisions of the
Code do not apply stricto sensu, the
fundamentals of a fair procedure would
certainly dictate that a party must plead the
basis of his title, if he asserts one, at the
earliest in any proceedings, where some
kind of determination of rights is done. The
conspicuous non-mention of the will by
Balraj Khurana in the objections filed to the
allotment application by the petitioner,
makes the basis of the petitioner's case
highly suspect. The expression used in the
reply submitted by the petitioner to the
application for release, on which the
proceedings for determination of vacancy
have commenced, show, as already said,
that the petitioner asserts that he was
'handed over' the property by Balraj
Khurana, when he migrated to Canada with
his
family.
The
precise
expression
employed in Hindi is "मुझे ये सम्पवि सौप
दी".

23. Now, one is expected to know that
in order to acquire title to immovable
property, that is worth any sum upward of
the value of Rs.100/-, a formal and
12 All. Rajendra Singh Jayas Vs. Sri Vishal Khurana
141
registered conveyance is to be executed.
Since, there was no conveyance, apparently
the story of a will was invented. If one
were to look to the will dated 11.05.1998
relied upon by the petitioner, it is hardly a
bequest. A will is defined by Section 2(h)
of the Indian Succession Act, 1925 thus:

"2. Definitions.-In this Act,
unless there is anything repugnant in the
subject or context-

(a) to (g) x x x x

(h)
"will"
means
the
legal
declaration of the intention of the testator
with respect to his property which he
desires to be carried into effect after his
death."

24. A look at the copy of the
document dated 11.05.1989, said to be the
will executed by Balraj Khurana in the
petitioner's favour, annexed as Annexure
No. CA-2 to the counter affidavit filed by
the respondent, shows the following recital
(relevant part):

"मैं सपररिार कनाडा जाने से पहले
सामयाभाि में अपनी इस अचल सम्पवि मकान
के बारे में यह उवचत आिश्यक समझता हूँ।
तावक मेरे जाने के बाद मकान के बारे में कोई
वििाद उत्पन्न न हो वक मैं अपना मकान 55 सी
बाोंके राधा वबहार नगर (हाइवडल नगर) तह0 ि
वजला मथुरा को अपने पररिार के अवत घवनष्ठ
सहयोगी के वकये गये सहयोगोों के एिज में श्री
राजेन्द्र वसोंह जायस पुत्र से िासुदेि वसोंह जायस
19-20 सी राधानगर को अपने सभी अवधकारोों
सवहत सौप दूूँ, मेरे नाम से वबजली का कनेक्शन
भी लगा है। गैस कनेक्शन भी जारी है। वजसके
कागजात भी मैं श्री राजेन्द्र वसोंह जायस को सौोंप
रहा हूँ।

इस मकान से सम्बस्ित हर तरह के
अवधकार अब मेरी जगह श्री राजेन्द्र वसोंह जायस
को होोंगे। मैंने इससे पूिथ कोई भी िसीयत नहीों
की है यह मेरी प्रथम ि आस्खरी (अस्िम)
िसीयत है, यवद कोई भी व्यस्क्त इस िसीयत के
अलािा अन्य कोई िसीयत बताता है तो िह
न्यायालय आवद में पूणथतः अमान्य ि शून्य समझी
जायेगी।"(emphasis by Court)

25. Thus, whereas a will by its
essence and definition under the statute
takes effect after the demise of the testator
and is in no way a conveyance or a
transaction inter vivos, the document relied
upon by the petitioner and propounded as
Balraj
Khurana's
will,
is
clearly
a
conveyance that creates and transfers rights
by the executant in presenti to the other
party, to wit, the petitioner. It is clearly a
deed of assignment by whatever name
called and, apparently being one in relation
to property above the value of Rs.100/-, if
considered a sale deed, has to be made by
registered instrument. If it is regarded a gift
deed, then too, it has to be compulsorily
registered. By the terms of the disposition
carried in the instrument, it can never be
regarded as a will or a testament. The
learned Additional District Judge has taken
note of this position of the law and the
character of the instrument and we are in
agreement with him.

26. The learned Additional District
Judge has further noticed that the property
in dispute was acquired by Raghunath Rai
under
The
Displaced
Persons
(Compensation and Rehabilitation) Act,
1954 in lieu of the compensation and
rehabilitation grant from the Government
of India vide a sale certificate of the year
1960. The said fact has been held to be
verifiable by the learned Additional District
Judge, from a perusal of Paper No. 8-Aa/12
on the file of the Authority of first instance.
The property in dispute is in no way,
142 INDIAN LAW REPORTS ALLAHABAD SERIES
therefore, a Hindu Joint Family property. It
was acquired by Raghunath Rai, given to
him by the Government. In what manner,
this property went to Balraj Khurana, is not
at all established. To the contrary, a careful
scrutiny of the evidence by the two
Authorities below shows that the property
went to the other son of Raghunath Rai,
Virendra
Khurana
by
a
will
dated
08.12.1973. The learned Additional District
Judge has looked into the will and opined
that it has made disposition of the property
by Raghunath Rai in the manner that it has
been directed to pass to his wife upon
Raghunath Rai's demise, and further, upon
his wife's demise to their son, Virendra
Khurana. The Additional District Judge has
also recorded, on the basis of evidence, the
finding that after demise of Raghunath
Rai's widow, the property went to Virendra
Khurana and his name was mutated in the
Nagar Palika records. This property was
sold by Virendra Khurana to the respondent
by a registered sale deed for a valuable sale
consideration
of
Rs.30
lakhs.
The
respondent's name too was mutated in the
house tax and water tax records, which
were perused by the learned Judge and are
on record.

27. On the other hand, reverting back
to the will propounded by the petitioner, it
has
been
remarked
by
the
learned
Additional District Judge that the witnesses
of the will are both said to be dead, but the
will being scribed by Balraj Khurana's
daughter, Lovely Khurana, her affidavit has
been filed on record before the Authority of
first instance. Lovely Khurana has denied
scribing the will and said that it is forged.
In the circumstances, it has been held that
neither the execution of a valid will by
Balraj Khurana in the petitioner's favour is
prima
facie
established
nor
Balraj
Khurana's right or title to the property in
dispute that he could convey to the
petitioner.

28. Upon the issue that whatever the
dispute
between
parties,
delineated
hereinabove, constitutes a complicated
question of title, which ought to be left to
the Civil Court to decide and not in these
statutory proceedings, this Court finds that
the question here does not present that kind
of a case at all. The passage of title from
the original owner to the respondent, is
through an unimpeachable course of
disposition with a corresponding record of
the parties' rights by the Municipal Body.
Certainly, this kind of a position may be
regarded as one where the Authorities
below were required to incidentally go into
the question of title, to determine the
proceedings before them, and, the question
that has arisen, looked into in the face of
evidence prima facie, is not at all a
complicated or vexed question of title,
where the Statutory Authorities should lay
their hands off the matter and wait for a
determination by the Civil Court. The
Authorities can incidentally go into the
question of title, if raised by a tenant. On
the said point, reference may be made with
profit to the decision of this Court in
Krishna Chandra Srivastava (supra),
where it was held:

"7. Similar view was taken in
Smt. Kailashwati v. IVth Addl. District
Judge [1980 ARC 388.] . A Division Bench
of this Court in Ran Nath Mishra v.
Prescribed Authority [1984 (2) ARC 227.] ,
held that under Section 21 of U.P. Act No.
13 of 1972 the Prescribed Authority is
under a legal duty to determine a question
of title to find out as to whether there is
relationship of landlord and tenant between
the applicant and the opposite party in
application submitted before it under
12 All. Rajendra Singh Jayas Vs. Sri Vishal Khurana
143
Section 21 of the Act. It is settled law that the
Prescribed Authority has jurisdiction to
decide a question of title incidently to find
out as to whether there is relationship of
landlord and tenant between the parties. The
Prescribed Authority is not precluded from
exercising its jurisdiction under Section 21 of
the Act whenever the tenant raises an
objection regarding the title of the applicant
to the disputed property. The Prescribed
Authority can examine the matter on merits
and if it finds that there is evidence which
justifies the claim of the applicant he can
proceed to decide the matter regarding
question of title incidently. In the present
case, it has been found that respondents 3 and
4 formerly purchased the disputed property
from Ramji Lal, who had succeeded the
interest of Har Narain Lal. The petitioners did
not raise any dispute before the Prescribed
Authority that they were not tenants of Late
Har Narain Lal."

29. The principle in Krishna
Chandra Srivastava would, on the state of
evidence here, apply in the same manner to
the RC & EO as it was held to apply in case
of proceedings for release before the
Prescribed Authority under the Act. The
contention of the learned Counsel for the
petitioner, therefore, based upon the matter
involving a complicated or vexed question
of title, cannot be accepted.

30. The same point in the context of
maintainability of an eviction suit arose in
Dr. Ranbir Singh (supra), where the
landlord's title was challenged by the tenant
saying that the plaintiff had not inherited
any interest in the demised property from
the original landlord. It was held by the
Supreme Court in Dr. Ranbir Singh:

"9. It may be pointed out that it is
well-settled law that the question of title of
the property is not germane for decision of
the eviction suit. In a case where a plaintiff
institutes a suit for eviction of his tenant
based on the relationship of the landlord
and tenant, the scope of the suit is very
much limited in which a question of title
cannot be gone into because the suit of the
plaintiff would be dismissed even if he
succeeds in proving his title but fails to
establish the privity of contract of tenancy.
In a suit for eviction based on such
relationship the Court has only to decide
whether the defendant is the tenant of the
plaintiff or not, though the question of title
if disputed, may incidentally be gone into,
in connection with the primary question for
determining the main question about the
relationship between the litigating parties.
In LIC v. India Automobiles & Co. [(1990)
4 SCC 286] (SCC pp. 300-02, para 21) this
Court had an occasion to deal with similar
controversy. In the said decision this Court
observed that in a suit for eviction between
the landlord and tenant, the Court will take
only a prima facie decision on the collateral
issue as to whether the applicant was
landlord. If the Court finds existence of
relationship of landlord and tenant between
the parties it will have to pass a decree in
accordance with law. It has been further
observed that all that the Court has to do is
to satisfy itself that the person seeking
eviction is a landlord, who has prima facie
right to receive the rent of the property in
question. In order to decide whether denial
of landlord's title by the tenant is bona fide
the Court may have to go into tenant's
contention on the issue but the Court is not
to decide the question of title finally as the
Court has to see whether the tenant's denial
of title of the landlord is bona fide in the
circumstances of the case."

31. It may be remarked that the
decision of the Supreme Court may be
144 INDIAN LAW REPORTS ALLAHABAD SERIES
confined
to
the
determination
of
relationship of landlord and tenant, which
alone can be determined in a rent suit, but it
is well-settled that for that purpose also, the
question of title can be incidentally gone
into; it cannot be finally pronounced upon.
Here also, if the petitioner thinks that he
has a case to establish before the Civil
Court, the determination made by the
Statutory Authorities based on evidence,
prima facie forthcoming, would not in any
manner finally determine the title of
parties. The petitioner can establish his title
before the Court of competent jurisdiction
and secure a decree to recover possession
of the property in dispute. Nevertheless, the
petitioner's objection that the statutory
proceedings must await determination of
title is not a proposition to be accepted on
the given state of evidence, that prima facie
appears in this case. Both the Authorities of
fact below have taken that view about the
rights and title of parties prima facie and
this Court is not inclined to interfere with
the same in the exercise of our jurisdiction
under Article 227 of the Constitution.

32. The other question that has been
raised relates to limitation and the bar to
declaration of vacancy because proceedings
in this case have been initiated on an
application for allotment made 25 years
after the petitioner entering possession.