# Ram Kishor v. Mukesh Kumar Sahu & Ors

- **Citation:** (2023) 10 ILRA 1222
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-09-26
- **Case number:** Writ-A No. 62592 of 2014
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-kishor-v-mukesh-kumar-sahu-ors-49317
- **Pages:** 14

## Headnote

A. Tenancy Law - UP Urban Buildings
(Regulation of Letting, Rent & Eviction)
Act, 1972 - Sections 21(1)(a) & 21(7) -
Eviction - Bona fide need - Right of legal
representatives of landlord - Entitlement
of widow after death of landlord -
Held, Sub-section (7) of S. 21(1)(a)
permits the legal representatives not
only to prosecute the application
further, based on the needs set-up by
the landlord, but also on the basis of
the legal representatives' own needs
- Statute devises a special right in
favour of the legal representatives of
a deceased landlord - High Court
distinguished Sheshambal's case as
there is no provision pari materia to
sub-section (7) in the Kerala Statute.
(Para 31)

B. Tenancy Law - UP Urban Buildings
(Regulation
of
Letting,
Rent
&
Eviction) Act, 1972 - Section 21 -
Landlord-Tenant dispute - Eviction
sought by one of the owner, where
joint ownership exist - Permissibility
- Held, there is no right with the
tenant to say that the premises in his
occupation, of which there are a
number of landlords jointly owning,
cannot
be
partitioned
amongst
themselves, for that right belongs to
the landlords. It is also open to the
landlords to permit anyone on their
behalf to evict the tenant. (Para 33)

C. Tenancy Law - UP Urban Buildings
(Regulation
of
Letting,
Rent
&
Eviction) Act, 1972 - Section 21 -
Eviction proceeding - Comparative
hardship - Widow sought release to
carry occupation of hosiery - Though
the
tenants
have
mentioned
as
alternative accommodation available
to the landlord, but Court below
found the suggested accommodations
are not at all owned or held by the
landlord - Finding of court below,
how far can be interfered with -
Held,
even
if
a
suitable
shop
searched by the tenants could not be
found, and the comparative hardship
of the tenants is evenly balanced, the
conclusion must be in favour of the
landlord.
It
is
only
when
the
comparative hardship outweighs the
landlord's
hardship
that
some
consideration may be permissible -
There is no reason why the shop ought
not to be released in favour of the
present
landlord,
Sahu's
widow,
enabling her to establish her business
and carry it on to earn her livelihood.
(Para
34,
35
and
36)
10 All. Ram Kishor Vs. Mukesh Kumar Sahu & Ors.
1223
Writ petition dismissed. (E-1)

List of Cases cited:

## Text

_Characters 0–39,997 of 47,553. This is a partial read: ask again with offset=39997 for what follows._

1222 INDIAN LAW REPORTS ALLAHABAD SERIES
his last drawn salary and release the same
in his favour within a period of four
months from the date a certified copy of
this order is produced before them along
with appropriate application.

11. The order impugned dated
08.07.2005 passed by District Inspector of
Schools,
Mahamayanagar
is
hereby
quashed.

12. The writ petition is, accordingly,
allowed.

----------
(2023) 10 ILRA 1222
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.09.2023

BEFORE

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

Writ-A No. 62592 of 2014

Ram Kishor ...Petitioner
Versus
Mukesh Kumar Sahu & Ors.
 ...Respondents

Counsel for the Petitioner:
Sri K.P. Tiwari, Sri P.K. Jain (Sr. Adv.)

Counsel for the Respondents:
Ms. Rama Goel Bansal

A. Tenancy Law - UP Urban Buildings
(Regulation of Letting, Rent & Eviction)
Act, 1972 - Sections 21(1)(a) & 21(7) -
Eviction - Bona fide need - Right of legal
representatives of landlord - Entitlement
of widow after death of landlord -
Held, Sub-section (7) of S. 21(1)(a)
permits the legal representatives not
only to prosecute the application
further, based on the needs set-up by
the landlord, but also on the basis of
the legal representatives' own needs
- Statute devises a special right in
favour of the legal representatives of
a deceased landlord - High Court
distinguished Sheshambal's case as
there is no provision pari materia to
sub-section (7) in the Kerala Statute.
(Para 31)

B. Tenancy Law - UP Urban Buildings
(Regulation
of
Letting,
Rent
&
Eviction) Act, 1972 - Section 21 -
Landlord-Tenant dispute - Eviction
sought by one of the owner, where
joint ownership exist - Permissibility
- Held, there is no right with the
tenant to say that the premises in his
occupation, of which there are a
number of landlords jointly owning,
cannot
be
partitioned
amongst
themselves, for that right belongs to
the landlords. It is also open to the
landlords to permit anyone on their
behalf to evict the tenant. (Para 33)

C. Tenancy Law - UP Urban Buildings
(Regulation
of
Letting,
Rent
&
Eviction) Act, 1972 - Section 21 -
Eviction proceeding - Comparative
hardship - Widow sought release to
carry occupation of hosiery - Though
the
tenants
have
mentioned
as
alternative accommodation available
to the landlord, but Court below
found the suggested accommodations
are not at all owned or held by the
landlord - Finding of court below,
how far can be interfered with -
Held,
even
if
a
suitable
shop
searched by the tenants could not be
found, and the comparative hardship
of the tenants is evenly balanced, the
conclusion must be in favour of the
landlord.
It
is
only
when
the
comparative hardship outweighs the
landlord's
hardship
that
some
consideration may be permissible -
There is no reason why the shop ought
not to be released in favour of the
present
landlord,
Sahu's
widow,
enabling her to establish her business
and carry it on to earn her livelihood.
(Para
34,
35
and
36)
10 All. Ram Kishor Vs. Mukesh Kumar Sahu & Ors.
1223
Writ petition dismissed. (E-1)

List of Cases cited:

1. Sheshambal (dead) through L.Rs. Vs Chellur
Corporation, Chellur Building & ors.; (2010) 3
SCC 470 : AIR 2010 SC 1521

2. Smt. Parwati Devi & ors. Vs Late Prabhu
Dayal 7 ors.; 2011:AHC:171295

3. Kamleshwar Prasad Vs Pradumanju Agarwal
(dead) by L.Rs. & ors.; (1997) 4 SCC 413

4. Kedar Nath Agrawal (Dead) & anr. Vs
Dhanraji Devi (Dead) by Lrs. & anr.; (2004) 8
SCC 76

5. Baldev Krishan Vs Satya Narain; (2013) 14
SCC 179

6. D. Sasi Kumar Vs Soundarajan; (2019) 9 SCC
282

7. Sk. Sattar Sk. Mohd. Choudhari Vs Gundappa
Amabadas Bukate; (1996) 6 SCC 373

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

This is a tenant's writ petition,
arising out of an order of release passed
under Section 21(1)(a) of the Uttar Pradesh
Urban Buildings (Regulation of Letting,
Rent and Eviction) Act, 1972 (U.P. Act No.
13 of 1972) by both the Authorities below.

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

An application under Section
21(1)(a) of Uttar Pradesh Urban Buildings
(Regulation of Letting, Rent and Eviction)
Act, 1972 (U.P. Act No. 13 of 1972)1 was
moved by Mukesh Kumar Sahu against
Ram Kishor, Ram Narayan Gupta, Brij
Kishor alias Vijjan and Ballo, all sons of
the
late
Radhey
Shyam
Gupta
on
allegations that Sahu was the owner and
landlord of a shop bearing Municipal No.
198, situate at Mohalla Parwan, District
Jhansi, where Ram Narayan Gupta and his
three brothers, above named, were tenants
at a rent of ₹16.56/- per month. Sahu said
that he had no shop available with him to
do business. He earned his livelihood, in
the absence of a place of business, by
selling mobile phone recharge vouchers for
Airtel and Idea telecommunication service
providers, moving from one shop to
another for the purpose. According to the
landlord, he wanted to establish himself in
the business of hosiery, and to do that, he
bona fide needed the shop above detailed in
the tenancy occupation of the petitioner,
Ram Kishor and his three brothers,
respondent Nos. 2, 3 and 4 to this petition.
Ram Kishor, the sole petitioner and
respondent Nos. 2, 3 and 4, his brothers
shall hereinafter be referred to as the
'tenants' unless the context necessitates a
different or individual reference.

3. It was also pleaded by the landlord
that the former owner and landlord of Shop
No. 198 aforesaid was his mother Smt.
Poonabai, who had passed away, and after
her demise, he had become the owner and
landlord thereof. This had happened in the
manner that the landlord and his brothers
had done a family settlement to divide the
property left behind by their parents
amongst themselves, where Shop No. 198
aforesaid2 had fallen to his share. Apart
from the demised shop, the landlord had,
for his residence, a house bearing Premises
Nos. 95 and 108, which, in fact, is one
house, but the Nagar Nigam, Jhansi had
assigned two premises numbers to it. The
tenants had no need for the demised shop.
They had with them, on the Kotwali Road,
Jhansi, a non-residential building, besides
two vacant shops. One of these shops is
occupied by one Ram Nath, who does the
business of selling incense sticks (agarbatti)
1224 INDIAN LAW REPORTS ALLAHABAD SERIES
which he manufactures in his house. The
tenants can easily rent another shop, or buy
one. The landlord is without any source of
livelihood. He has no permanent source of
income. It is a very unstable occupation
that he undertakes by selling mobile phone
recharge vouchers, moving from shop to
shop, to make his ends meet. The landlord
wants to do business of hosiery so that he
may have a stable source of livelihood. His
need is bona fide and pressing. The
landlord also said in his application that he
is ready to pay compensation to the tenants
as required by the law. It is also averred
that the tenants would not face any
hardship, if evicted.

4. Amongst the tenants, who are
arrayed
as
opposite
parties
to
the
application for release, Ram Kishor filed
objections, bearing Paper No. 28A1. He
asserted that abutting the demised shop,
there were Shop Nos. 199 and 200, besides
other shops, of which the landlord's mother,
Smt. Poonabai was the owner. She had
instituted a suit, being S.C.C. Suit No. 59
of 1992 for eviction of the tenants, which
was dismissed and a revision carried
against the decree to the High Court too
was dismissed. It is also pleaded that the
landlord's mother, Smt. Poonabai had
moved an application for release under
Section 21(1)(a) of the Act of 1972 againts
the tenants during her lifetime, being
Application No. 69 of 1992, which came to
be dismissed on 06.12.1999. In the said
application for release, the landlord's
mother, Smt. Poonabai had not pleaded
bona fide need for her sons. She assailed
the
judgment
of
the
Prescribed
Authorityvide Rent Control Appeal No. 2
of 2000, which too was dismissed.

5. It was also pleaded that in order to
forcibly evict the tenants by use of muscle
power, the landlord caused a part of the
demised shop to be demolished and
thereafter, the landlord, together with Om
Prakash, Rajendra Kumar and Smt. Bindu
instituted Original Suit No. 276 of 2004 for
a permanent injunction, that was dismissed
on 03.04.2008. The tenants, with the
permission of the Court, got the demolished
shop repaired. The tenants do trade in
incense sticks (agarbatti) utilising the
demised shop in order to secure their
livelihood and feed their family. No
partition by way of family settlement
between the landlord and his brothers had
taken place in the year 2004 or at any other
time. The landlord and all his brothers are
co-owners of the demised shop. The
landlord and his brothers own a number of
shops, houses and agricultural lands. They
carry on business of money lending. Shop
No. 199, that adjoins the demised shop, and
Shop No. 200, which is next to Shop No.
199 are both in the landlord's occupation.
The landlord has let out Shop No. 199 and
a part of Shop No. 200 temporarily for the
purpose of a beer shop to one Sanjeev
Kumar Rai in the month of April, 2010 and
the remaining portion of Shop No. 200 is
still in the landlord's occupation. The
landlord's father, Bhagwandas and his wife
had purchased Shop Nos. 16 and 18, situate
in Mohalla Chaudharyana Bada Bazar,
wherein they were earlier tenants. Both
these shops were purchased in the name of
their son, Om Prakash and grandson, Amit
Kumar. It is the tenant's case that the
landlord and his brother, Om Prakash
jointly carry on sale and repair of bicycles
and hosiery in the shops aforesaid, which
has been reconstructed into a grand threestoried shop. Apart from it, the landlord, in
a part of Shop No. 200, carries on the
wholesale of hosiery on a grand scale,
besides dealing in mobile phones. The
landlord and his brother carry on wholesale
10 All. Ram Kishor Vs. Mukesh Kumar Sahu & Ors.
1225
business in hosiery in Building No. 23,
Najhai Bazar, Jhansi, where they have eight
shops. Apart from these premises, the
landlord and his brothers have recently
purchased a building from one Rajendra
Kumar, located opposite House Nos. 95
and 108, Mohalla Jharkharia, Jhansi. In the
said premises, four shops are located
opposite Shop No. 23, Najhai Bazar.
According to the tenants, the landlord and
his brothers have purchased three shops 3-4
years ago, housed in Sai Complex No. 89,
Chaudharyana, Jhansi, wherein too, they
carry on the business of sale of hosiery.
The landlord and his brothers are also
owners of House No. 32, Ganesh Mandia,
Jhansi, which too has one shop. It has been
purchased a few years ago. The shop and
the house bearing number 32 are in the
landlord's possession. Apart from these,
according to the tenants, the landlord owns
a shop near Ramleela Manch, situate in
Bada Bazar, Jhansi, a part of Ramlala
market. Again, House Nos. 95 and 106,
situate in Mohalla Jharkharia, Jhansi is said
to be a grand building, where two shops are
in the landlord's possession.

6. It is made out that the landlord has
no bona fide need for the demised shop. It
is also pleaded that Ram Narayan, one of
the tenants, is litigating with the other
tenants, that is to say, his brothers. He has a
residential house at Kotwali Road, Jhansi,
which is his personal property. The said
house has no shop. House No. 6, Gudri,
Jhansi is a residential premises of Ram
Kishor, Brij Kishor alias Vijjan and Ballo,
amongst the tenants, which does not have a
shop, nor it is used for the purpose of
business of incense sticks (agarbatti). The
landlord is not at all unemployed.

7. On the other hand, the tenants have
no other shop except the demised shop. It is
also pleaded that the tenants attempted to
secure another shop on rent, but could not
succeed in finding one. In the event the
tenants were evicted, their business would
close
down,
leading
them
to
face
insurmountable difficulty. It was urged that
the release application be rejected.

8. It is recorded for a fact by the
Authorities below that amongst the tenants,
except for Ram Kishor, the other three did
not appear in Court or file objections to the
application for release. Thus, the contest
has been confined to the landlord and,
amongst the tenants, Ram Kishor.

9. It must also be recorded here that
after losing the eviction matter in the Court
of first instance, it was only Ram Kishor,
amongst the four tenants, who appealed
under Section 22 of the Act of 1972 and
failing there, has instituted this writ
petition. None of the other tenants have
objected to the release order passed by the
Prescribed Authority.

10. In support of his case, the landlord
filed his own affidavit, bearing Paper No.
27A2, a counter affidavit, Paper No. 77A,
together
with
three
annexures
and
photographs, an inquiry report, some kind
of a conveyance, rather rustically described
by both the Judges in the Courts below as
"सिल िैनामे की प्रसत एनेक्चर 4 लगायत 13". This Court
must pause here and say that we do not
approve of this kind of a wayfarer's
description of evidence by a trained Judge
in his judgment.

11. The next piece of evidence relied
upon by the landlord is an affidavit of the
landlord bearing Paper No. 28A2, together
with Annexure Nos. 1 and 2, that includes a
photograph, an affidavit of Shivram, Paper
No. 29A2, an affidavit of the landlord,
1226 INDIAN LAW REPORTS ALLAHABAD SERIES
Paper No. 30A2, an affidavit of Ashok
Kumar Nigam, Paper No. 31A2. Amongst
the documents filed is a sale deed, a house
tax receipt, a rent receipt and photographs
bearing Paper Nos. 33C to 53C.

12. The contesting tenant, in support
of his case, has filed his own affidavit,
Paper No. 57A2 along with Annexure-1, a
photocopy of some sale deed, an affidavit
of Ashok Kumar Gupta Paper No. 59A1, an
affidavit of Dinesh Chaurasia, Paper No.
60A1, an affidavit of Ashok Ahirwar,
Paper No. 61A1, besides some other
evidence.

13. As part of his documentary
evidence, the tenant has filed a certified
copy of the judgment and decree passed in
Original Suit No. 283 of 1995, bearing
Paper No. 63C1, a copy of the application
giving rise to Case No. 60 of 1999, Paper
No. 64C, a certified copy of the order,
Paper No. 65C, a certified copy of the
plaint giving rise to Original Suit No. 276
of 2004, Paper No. 66C, a certified copy of
the judgment passed in the aforesaid suit,
Paper No. 67C, a certified copy of the
judgment passed in Suit No. 69 of 1992,
Paper No. 68C, an electricity bill, Paper
No. 69C, photographs, Paper No. 70C, a
copy of an application, Paper No. 71C, a
copy of the newspaper Paper No. 72C, a
copy of photographs, Paper Nos. 73C to
76C, a certified copy of the sale deed,
Paper Nos. 84C and 85C, and, a copy of an
application and an affidavit, Paper Nos.
94C and 95C, respectively.

14. The Prescribed Authority heard
the matter, going into the issues of bona
fide need and comparative hardship. Both
the issues were decided in favour of the
landlord
and
against
the
tenants.
Accordingly, the Prescribed Authority,
vide
judgment
and
order
dated
19.07.2012 passed in P.A. Case No. 35 of
2010, allowed the application and ordered
the tenants' eviction. The landlord was
ordered to pay, by way of compensation
to the tenants, rent for the period of two
years within fifteen days of the date of
judgment. The tenants were directed to
vacate the demised shop within a month
of receipt of compensation from the
landlord. It was further ordered that in the
event of failure by the tenants to deliver
possession within the time allowed, it
would be open to the landlord to recover
possession. Both parties were directed to
bear their own costs.

15. Amongst the tenants, Ram
Kishor alone appealed the release order to
the
District
Judge,
Jhansi/Appellate
Authority under Section 22 of the Act of
1972. The appeal was assigned for
hearing to the Additional District
Judge, Court No. 2, Jhansi.

16. Pending the appeal, the
landlord, Mukesh Kumar Sahu passed
away and his widow, Smt. Suman
Sahu applied for substitution in his
stead. The application for substitution
was allowed and she was impleaded as
respondent No. 1/1 to the appeal. The
appeal was, therefore, heard, with
Suman
Sahu
representing
the
landlord's
interest.
The
learned
Additional District Judge/Appellate
Authority, vide judgment and order
dated 15.11.2014 passed in Rent
Control Appeal No. 20 of 2012,
dismissed the said appeal and affirmed
the release order.

17. Aggrieved, this writ petition
has been instituted by Ram Kishor
alone, amongst all the tenants. Ram
10 All. Ram Kishor Vs. Mukesh Kumar Sahu & Ors.
1227
Kishor shall, however, continue to be
referred to as the 'tenants' (in plural).

18. Heard Mr. P.K. Jain, learned
Senior Advocate assisted by Mr. K.P.
Tiwari, learned Counsel for the tenants and
Ms. Rama Goel Bansal, learned Counsel
for the landlord-respondent No. 1/1, Smt.
Suman Sahu. She shall be referred to
hereinafter as the 'landlord' in similar
fashion as her deceased husband, unless
the context necessitates an individual
reference.

19. It is argued by Mr. P.K. Jain,
learned Senior Advocate appearing for
the tenants that the release application
was filed under Section 21(1)(a) of the
Act of 1972 on ground of bona fide
need of the original landlord Mukesh
Kumar Sahu. It is urged that Sahu had
pleaded bona fide need of his family,
besides his own. The submission is that
this kind of a need, even if established
until
time
when
the
Prescribed
Authority decided, vanished during
appeal, when Sahu passed away. The
submission is that since release was not
sought for the bona fide need of a
member of his family or his own
together with his family, the bona fide
need would not survive Sahu. His
widow, who has been substituted in his
stead, has no right to seek relief,
prosecuting the application for release
that was brought by her husband for his
own need, and no one else's. Reliance
in this connection has been placed by
Mr. Jain upon the judgment of the
Supreme Court in Sheshambal (dead)
through
L.Rs.
v.
Chellur
Corporation, Chellur Building and
others3. The learned Senior Advocate
has drawn the Court's attention to the
following remarks of their Lordships in
Sheshambal (supra) :

12. It is not in dispute that in the
eviction petition the owners had pleaded
their own requirement for the premises to
be occupied by them for residential as well
as commercial purposes. The eviction
petition was totally silent about the
requirements of any member of the family
of the petitioner owners leave alone any
member of their family who was dependent
upon them. That being so the parties went
to trial before the Rent Controller on the
basis of the case pleaded in the petition and
limited to the requirement of the owners for
their personal occupation.

13. Neither before the Rent
Controller
nor
before
the
Appellate
Authority
was
it
argued
that
the
requirement in question was not only the
requirement of the petitioner owners of the
premises but also the requirement of any
other member of their family whether
dependent upon them or otherwise. Not
only that, even in the petition filed before
this Court the requirement pleaded was that
for the deceased widowed owner of the
demised premises and not of any member
of her family.

14. Superadded to all this is the
fact that the legal representatives who now
claim to be the family members of the
deceased are all married daughters of the
deceased couple each one settled in their
respective matrimonial homes in different
cities and at different places. That none of
them was dependent upon the deceased
petitioner is also a fact undisputed before
us. Even otherwise in the social milieu to
which we are accustomed, daughters
happily married have their own families
and commitments, financial and otherwise.
1228 INDIAN LAW REPORTS ALLAHABAD SERIES
Such being the position we find it difficult
to see how the legal representatives of the
deceased appellant can be allowed to set up
a case which was never set up before the
courts below so as to bring forth a
requirement that was never pleaded at any
stage of the proceedings. Allowing the
legal heirs to do so would amount to
permitting them to introduce a case which
is totally different from the one set up
before the Rent Controller, the Appellate
Authority or even the High Court.

15. The position may indeed have
been differentiated if in the original petition
the petitioner owners had pleaded their own
requirement and the requirement of any
member of their family dependent upon
them. In such a case the demise of the
original petitioners or any one of them may
have made little difference for the person
for
whose
benefit
and
bona
fide
requirement the eviction was sought could
pursue the case to prove and satisfy any
such requirement.

20. Mr. Jain has next placed reliance
upon a decision of a learned Single Judge
of this Court in Smt. Parwati Devi and
others v. Late Prabhu Dayal and
others4. He has drawn the Court's
attention to the following observations of
the learned Judge in Smt. Parwati Devi
(supra) :

Law so declared by the Supreme
Court of India in paragraph-9 of the said
judgement would take care of sub-section
(7) of Section 21 of U.P. Act No. 13 of
1972. Therefore, sub-Section (7) has to be
read in consonance with what has been
recorded in paragraph-9 of the said
judgement of the Supreme Court of India
quoted herein above. Meaning thereby that
if need set up by the landlord was personal
as well as for his family members, it is only
then after his death, dependant can
prosecute an application even after the
death of the landlord.

The facts of the present case are
more or less identical to the Judgement of
the Supreme Court of India in the case of
Seshambal (Supra).

This Court has no hesitation to
record that the order permitting the
amendment as well as granting the release
application on the need pleaded by the legal
heirs for the first time at the appellate stage
after death of original landlord cannot be
legally sustained.

21. It is argued on the foot of the
aforesaid decisions that the bona fide need
of the landlord would, therefore, not enure
beyond his death and to the benefit of his
widow, who has no right to prosecute the
application, based on his bona fide for
himself alone. It is next submitted that the
Authorities below have committed a
manifest error of law in believing the case
of the landlord based on an oral family
partition, where the demised shop is said to
be assigned to his share. It is urged that the
partition propounded by the landlord is a
got up one, in collusion with his brothers,
to evict the tenants. It has no basis to it.
Reference is made to the plaint of Suit No.
276 of 2004, a copy of which is annexed as
Annexure No. 1 to the supplementary
affidavit dated 26.11.2014 to say that in
paragraph No. 1 of the plaint there, all four
brothers have admitted themselves to be the
landlords. It is also pointed out that in the
supplementary affidavit dated 26.11.2014,
the judgment of the Additional District
Judge, Court No. 2, Jhansi, that he passed
in Misc. Civil Appeal No. 59 of 2005,
arising out of a temporary injunction matter
10 All. Ram Kishor Vs. Mukesh Kumar Sahu & Ors.
1229
in Original Suit No. 276 of 2004, has been
annexed. The said appeal was filed by the
tenants against the landlord and his two
brothers. The said judgment has been relied
upon to say that the landlord has accepted
his brothers to be all co-owners and
landlords of the demised shop. It is urged
that there is absolutely no basis to the story
of oral partition set up in the present
proceedings. It is also pointed out that the
oral partition is something that cannot be
believed, because no date thereof has been
mentioned. It is lastly urged that a series of
litigation pending between parties, initially
instituted by the landlord's mother, Smt.
Poonabai, both by suits for ejectment and
release on ground of bona fide need, show
that it is the endeavour of the landlord,
since the time of his predecessors-in-title,
to evict the tenant at any cost. The
dismissal of the suit and the release
application brought by his mother show
that there is no basis to the landlord's claim
for release on ground of bona fide need.

22. There is also an objection to the
interim order of this Court enhancing rent
to Rs. 4,000/- per month as a condition for
enjoyment of the order of stay of eviction.
The findings of bona fide need and
comparative hardship have also been
assailed as perverse. It is argued that details
of accommodation available with the
landlord in ample measure has been
pointed out in different parts of the city, all
of which the Authorities below have
ignored from consideration.

23. Ms. Rama Goel Bansal, learned
Counsel for the landlord, on the other hand,
has argued that the Authorities below have
considered the issues of bona fide need and
comparative
hardship,
analysing
all
evidence offered by parties, and recorded
findings of fact, that cannot be assailed
before this Court in exercise of our writ
jurisdiction. It is next submitted that the
landlord, who has no stable source of
business and was critically ill, died by
cancer pending appeal, whereafter, his
widow has got herself substituted. Ms.
Bansal has placed reliance upon the
provision of Section 21(7) of the Act of
1972 to say that it confers right on the legal
representatives of the landlord to prosecute
a pending application for release on the
basis of their own need, in substitution of
the deceased's.

24. It is argued that the decision of the
Supreme
Court
in
Sheshambal
is
distinguishable on facts of the present case
and does not apply here. Reliance has been
placed on behalf of the landlord by Ms.
Bansal upon the authority of the Supreme
Court
in
Kamleshwar
Prasad
v.
Pradumanju Agarwal (dead) by L.Rs.
and others5 as also that in Kedar Nath
Agrawal (Dead) and another v. Dhanraji
Devi (Dead) by Lrs. and another6.
Further reliance has been placed by the
learned Counsel for the landlord upon the
guidance of the Supreme Court in Baldev
Krishan v. Satya Narain7 as well as in D.
Sasi Kumar v. Soundarajan8.

25. It is next submitted that so far as
the case of the tenants is concerned, that the
partition is a sham, they have no right to
question how the landlord and his brothers
have partitioned whatever they have
inherited
amongst
themselves.
Any
objection in this regard could come from
one of the co-shares of the landlord; not by
the tenants who do not deny their character
as tenants in the demised premises, of
which the original landlord was Sahu's
mother. It is also urged that all the family
members of the landlord have supported
the case of oral partition and the demised
1230 INDIAN LAW REPORTS ALLAHABAD SERIES
shop falling to the landlord's share. There
is hardly any element of collusion. So far as
bona fide need and comparative hardship
are concerned, it is urged that the findings
thereof have been recorded after a
threadbare examination of evidence on
record by the two Authorities of fact
below, which does not merit interference.

26. This Court has considered the
submissions advanced by learned Counsel
appearing on behalf of both the parties.
The principal ground of attack to the
order of release is based on the principle
that the application for release being one
that was filed by Mukesh Kumar Sahu for
his personal need cannot be pursued by
his widow, seeking substitution in his
stead. More particularly, the submission
is based on the foot of the reasoning that
the release sought being based on Sahu's
personal need, and not that of himself
along with members of the family, the
widow is not entitled to prosecute the
application for release after seeking
substitution.
In
support
of
this
contention, reliance has been placed
upon the decision of the Supreme Court
in Sheshambal. The submission does
not commend itself to this Court. The
reasons for thinking that Sheshambal
would not help the tenants in any
manner are more than one. Sheshambal
was a decision where that landlord
sought release of the demised shop
under the Kerala Buildings (Lease and
Rent Control) Act, 19659 on ground of
his bona fide need, not mentioning any
other member of his family, for whose
need or occupation, the premises were
required. What in this context is of
particular relevance are the remarks of
their Lordships of the Supreme Court in
Sheshambal. In paragraph No. 28 of the
report, it is said :

28.
As
noticed
earlier,
the
requirement pleaded in the eviction petition
by the original petitioners was their own
personal
requirement
and
not
the
requirement of the members of their family
whether dependent or otherwise. Indeed if
the deceased landlords had any dependent
member of the family we may have even in
the absence of a pleading assumed that the
requirement pleaded extended also to the
dependent member of their family. That
unfortunately, for the appellants is neither
the case set up nor the position on facts.
The deceased couple did not have any
dependent member of the family for whose
benefit they could have sought eviction on
the ground that she required the premises
for personal occupation.

27. In Sheshambal, the landlords
were K. Sachidananda Iyer and his wife the
late Smt. A. Sheshambal Sachidanand Iyer,
who had let out the demised premises to the
tenants there. They had a daughter and a
son-in-law, who were running a nursing
home in another city. They had shifted to
that city. There was no dependent member
of the family after Sheshambal's demise.
The holding in Sheshambal shows that the
position would have been different, even in
the absence of pleading, if there were a
dependent member of the Iyers, but the
couple did not have any dependent family
member, for whose benefit, eviction could
be sought.

28. The other distinguishing feature in
Sheshambal is that, there it was the legal
representatives of the deceased who had
sought substitution on the basis of a Will.
The occasion to seek this substitution arose
for the first time before the Supreme Court,
because Sachidananda Iyer passed away
while the revision was pending in the High
Court. But, Smt. A. Sheshambal Iyer, as the
10 All. Ram Kishor Vs. Mukesh Kumar Sahu & Ors.
1231
sole unsuccessful revision-petitioner before
the High Court, filed an appeal before the
Supreme Court and died pending appeal
before their Lordships. It is then that the
three daughters of the couple, who were
legatees under the Will, applied. Two of the
daughters were living in India, one in
Coimbatore and the other in Bihar, whereas
the third daughter was settled in America.
It was in this context that in paragraph No.
13 of the report in Sheshambal, it was
observed by their Lordships :

13. Neither before the Rent
Controller
nor
before
the
Appellate
Authority
was
it
argued
that
the
requirement in question was not only the
requirement of the petitioner owners of the
premises but also the requirement of any
other member of their family whether
dependent upon them or otherwise. Not
only that, even in the petition filed before
this Court the requirement pleaded was that
for the deceased widowed owner of the
demised premises and not of any member
of her family.

29. In the circumstances, there was
no occasion to infer on a finding returned
by the Authorities of fact that the release
was sought not only by the landlords for
their personal need, but also for one or
the other member of their family, whether
dependent or otherwise. The principle in
Sheshambal,
therefore,
has
to
be
understood in the background of facts in
which it was laid down, the most
important being that there was no
dependent family member apparently so,
or proved to be so, left behind by the
landlords, who had petitioned for release.

30. The third and the most important
distinguishing feature is that the principle
in Sheshambal arises in the background
of the provisions of Section 11(3) of the
Kerala Buildings Act, which read :

11. (3) A landlord may apply to
the Rent Control Court for an order
directing the tenant to put the landlord in
possession of the building if he bona fide
needs the building for his own occupation
or for the occupation by any member of
his family dependent on him:

Provided that the Rent Control
Court shall not give any such direction if
the landlord has another building of his
own in his possession in the same city,
town or village except where the Rent
Control Court is satisfied that for special
reasons, in any particular case it will be
just and proper to do so:

Provided further that the Rent
Control Court shall not give any direction
to a tenant to put the landlord in
possession, if such tenant is depending
for his livelihood mainly on the income
derived from any trade or business
carried on in such building and there is
no other suitable building available in the
locality for such person to carry on such
trade or business:

Provided
further
that
no
landlord
whose
right
to
recover
possession arises under an instrument of
transfer inter vivos shall be entitled to
apply to be put in possession until the
expiry of one year from the date of the
instrument:

Provided further that if a landlord
after obtaining an order to be put in
possession transfers his rights in respect of
the building to another person, the
transferee shall not be entitled to be put in
possession unless he proves that he bona
1232 INDIAN LAW REPORTS ALLAHABAD SERIES
fide needs the building for his own
occupation or for the occupation by any
member of his family dependent on him.

31. The provisions of Section 11(3)
are similar to the provisions of Section
21(1)(a) of the Act of 1972. A perusal of
the provisions of Section 11 of the said Act
as a whole, and 11(3) in particular, when
compared with those of Section 21 of the
Act of 1972, reveals that in the Kerala
Statute, there is no provision pari materia to
sub-section (7) of Section 21 of the Act of
1972. Sub-section (7) of Section 21 of the
Act is a special provision designed to
confer a right upon the legal representatives
of a landlord, who dies pending an
application under Clause (a) of sub-section
(1) of Section 21 of the Act of 1972,
entitling them to prosecute the application
further on the basis of their need in
substitution of the deceased's need. The
right conferred by sub-section (7) of
Section 21(1)(a) of Act of 1972 is a special
right arising under the Act of 1972 in
favour of the legal representatives of the
landlord, who has instituted against his
tenant an application for release under
Section 21(1)(a). It permits the legal
representatives not only to prosecute the
application further, based on the needs setup by the landlord, but also on the basis of
the legal representatives' own needs. The
Statute, therefore, devises a special right in
favour of the legal representatives of a
deceased landlord, who was seeking release
of a tenanted accommodation from his
tenant, while alive. There is no similar
provision under Section 11(3) of the Kerala
Statute, on the basis of which, the decision
in Sheshambal turns. The decision of this
Court in Smt. Parwati Devi, while opining
that the principle in Sheshambal would
take care of sub-Section (7) of Section 21
of the Act of 1972, fails to notice, ex facie,
that there is no similar provision in the
Kerala Statute conferring a special right on
the legal representatives, as done by the
Act of 1972. The point though involved
directly in Smt. Parwati Devi was not at
all present to the Court's mind, as the
difference in the two statutes was not at all
brought to his Lordship's notice. The
decision in Smt. Parwati Devi must,
therefore, on this point, be held to pass sub
silentio. The other submission urged on
behalf of the tenants that the partition is a
sham, in the absence its date being
disclosed or convincing evidence offered,
is also not acceptable.

32. Mr. Jain, learned Senior Advocate
for the tenants, in order to show that the
tenants have a right to prove that the
partition was not bona fide and a sham
transaction to evict them, has placed
reliance upon the decision of the Supreme
Court in Sk. Sattar Sk. Mohd. Choudhari
v. Gundappa Amabadas Bukate10. The
learned Senior Advocate has drawn the
Court's
attention
to
the
following
observations in Sk. Sattar (supra) :

37. In view of the above
discussion, it is obvious that the law with
regard to the splitting of tenancy is not
what the High Court has set out in the
impugned judgment. As pointed out earlier,
a co-sharer cannot initiate action for
eviction of the tenant from the portion of
the tenanted accommodation nor can he sue
for his part of the rent. The tenancy cannot
be split up either in estate or in rent or any
other obligation by unilateral act of one of
the co-owners. If, however, all the coowners or the co-lessors agree among
themselves and split by partition the
demised property by metes and bounds and
come to have definite, positive and
identifiable shares in that property, they
10 All. Ram Kishor Vs. Mukesh Kumar Sahu & Ors.
1233
become separate individual owners of each
severed portion and can deal with that
portion as also the tenant thereof as
individual owner/lessor. The right of joint
lessors contemplated by Section 109 comes
to be possessed by each of them separately
and independently. There is no right in the
tenant to prevent the joint owners or colessors from partitioning the tenanted
accommodation
among
themselves.
Whether the premises, which is in
occupation of a tenant, shall be retained
jointly by all the lessors or they would
partition it among themselves, is the
exclusive right of the lessors to which no
objection can be taken by the tenant,
particularly where the tenant knew from the
very beginning that the property was jointly
owned by several persons and that, even if
he was being dealt with by only one of
them on behalf of the whole body of the
lessors, he cannot object to the transfer of
any portion of the property in favour of a
third person by one of the owners or to the
partition of the property. It will, however,
be open to the tenant to show that the
partition was not bona fide and was a sham
transaction to overcome the rigours of Rent
Control laws which protected eviction of
the tenants except on specified grounds set
out in the relevant statute.

33. While it is true that the law does
appear to give the right to a tenant to show
that the partition was not bona fide and a
sham to evict him, circumventing the
protective regime of rent control laws, there
is no right with the tenant to say that the
premises in his occupation, of which
there are a number of landlords jointly
owning, cannot be partitioned amongst
themselves, for that right belongs to the
landlords. It is also open to the landlords
to permit anyone on their behalf to evict
the tenant. This is one part of the matter.
Quite apart, if the landlord comes up with
a case that partition had been amicably
effected
and
a
particular
property
assigned to him by an oral partition, it is
open to the tenant to show, by convincing
evidence, that it is sham. The Authorities
below have returned a finding that no
such evidence has been placed on record
by the tenants to show that after the year
2004, the demised shop is not held by the
landlord in his individual right post the
oral family settlement/partition. There is
no reason for this Court to interfere with
the
aforesaid
finding,
based
on
a
reasonable view of the evidence adopted
by the two Authorities below.

34. Again, so far as the issues of
bona fide need and comparative hardship
are concerned, both the Authorities below
have examined the landlord's case and
that of the tenants with reference to the
evidence on record.