# Smt. Sharda Devi & Anr v. D.J. Hardoi & Ors

- **Citation:** (2023) 2 ILRA 824
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-02-01
- **Case number:** Matter Under Article 227 No. 181 of 2023
- **Bench:** Manish Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-sharda-devi-anr-v-d-j-hardoi-ors-49744
- **Pages:** 10

## Headnote

Civil Law - Constitution of India, 1950 -
Article - 227, - U.P. Urban Building
(Regulation
of
Letting,
Rent
and
Eviction) Act, 1972 - Sections 3(a), 3(j),
14, 21, 21(1), 21(1)(a)& 21(1)(b), -
Transfer of Property Act,1882 - Sections
9, 54, 106 & 109 - Registration Act, 1908
- Section - 17 - Misc. Petition - against
impugned proceeding of ejectment & for
arrears of rent - Rights of lesser over the
property - Sale of immovable property -
Petitioners (dependents) receive notice under
Section 106 of Transfer of Property Act sent
by opposite party no. 3 (plaintiff) indicating
therein that he is the owner in possession of
the property concerned requiring ejectment
and arrears of rent and damages from the
petitioner - objected on the ground of
declaration of title - court finds that, once
opposite party-landlord had been able to
prima facie satisfy his status as landlord of
the building, there was no question of
returning the plaint for declaration of title -
and held that, - Tenant or any member of his
family who has been normally residing with or
is wholly dependent on him has built or has
otherwise acquired in a vacant St. or has got
vacated
after
acquisition,
a
residential
building in the same city - Claiming through
purchased a residential accommodation in
same city - Evident that no objection by
petitioner as tenant to application filed by
answering
opposite
party-landlord
was
entertainable as has been rightly held in
impugned orders - Petition being devoid of
merit, hence dismissed. (Para - 33, 35, 39,
40)

Petition Dismissed. (E-11)

List of Cases cited: -

## Text

824 INDIAN LAW REPORTS ALLAHABAD SERIES
साक्ष्योां के आधार पर इस न्यायालय के इस आिेश से
प्रभादवि हुए बगैर स्िांत्र एवां दनष्पक्ष रूप से पुनः आिेश
पाररि करे।
----------
(2023) 2 ILRA 824
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 01.02.2023

BEFORE

THE HON'BLE MANISH MATHUR, J.

Matter Under Article 227 No. 181 of 2023

Smt. Sharda Devi & Anr. ...Petitioners
Versus
D.J. Hardoi & Ors. ...Respondents

Counsel for the Petitioners:
A.Z. Siddiqui, Sunny Singh

Counsel for the Respondents:
Sanjay Kumar Srivastava

Civil Law - Constitution of India, 1950 -
Article - 227, - U.P. Urban Building
(Regulation
of
Letting,
Rent
and
Eviction) Act, 1972 - Sections 3(a), 3(j),
14, 21, 21(1), 21(1)(a)& 21(1)(b), -
Transfer of Property Act,1882 - Sections
9, 54, 106 & 109 - Registration Act, 1908
- Section - 17 - Misc. Petition - against
impugned proceeding of ejectment & for
arrears of rent - Rights of lesser over the
property - Sale of immovable property -
Petitioners (dependents) receive notice under
Section 106 of Transfer of Property Act sent
by opposite party no. 3 (plaintiff) indicating
therein that he is the owner in possession of
the property concerned requiring ejectment
and arrears of rent and damages from the
petitioner - objected on the ground of
declaration of title - court finds that, once
opposite party-landlord had been able to
prima facie satisfy his status as landlord of
the building, there was no question of
returning the plaint for declaration of title -
and held that, - Tenant or any member of his
family who has been normally residing with or
is wholly dependent on him has built or has
otherwise acquired in a vacant St. or has got
vacated
after
acquisition,
a
residential
building in the same city - Claiming through
purchased a residential accommodation in
same city - Evident that no objection by
petitioner as tenant to application filed by
answering
opposite
party-landlord
was
entertainable as has been rightly held in
impugned orders - Petition being devoid of
merit, hence dismissed. (Para - 33, 35, 39,
40)

Petition Dismissed. (E-11)

List of Cases cited: -

1. Mahabir Prasad & ors. Vs Ram Phal, reported
in (1988) 4 SCC 194

2. Naeem Ahmad Vs Yash Pal Malhotra & anr.
(2012, vol. 9 AD (Delhi) 138),

3. Gopi @ Goverdhannath (d) by LRs & ors. Vs
Sri Ballabh Vyas, [SLP No.27679 of 2018,
decided on 22.09.2022],

4. Om Prakash Yadav Vs Bal Deo Dass Yadav,
reported in MANU/UP/3190/2011,

5. Dharam Das Gupta Vs VIIIth Additional D.J.,
Varanasi & ors. reported in 1992 S.C.D. 381,

6. Ram Swaroop Vs D.J., Hardoi & ors.,
reported in 1985 AWC 434,

7. Appolo Zipper India Ltd. Vs W. Newman &
Co.Ltd., reported in (2018) 6 SCC 744,

8. T. Anjanappa & ors. Vs Somalingappa & anr.,
reported in (2006) 7 SCC 570.

(Delivered by Hon'ble Manish Mathur, J.)

1. Heard Mr. A.Z. Siddiqui, learned
counsel for petitioners and Mr. Sanjay
Kumar Srivastava, learned counsel for
opposite party no.3.

2. Vide order date 17.01.2023, notices
to opposite parties 1, 2 & 4 to 9 being
merely proforma in nature was dispensed
with.
2 All. Smt. Sharda Devi & Anr. Vs. D.J. Hardoi & Ors.
825

3. By consent of learned counsel for
parties and since pleadings are already
complete, petition is being decided at the
admission stage itself.

4. Petition under Article 227 of the
Constitution of India has been filed
assailing
judgment
and
order
dated
26.05.2022 passed in P.A. Suit No.01 of
2015 instituted by opposite party no.3
against petitioners for ejectment and arrears
of rent and damages. The appellate
judgment dated 15.12.2022 passed in Misc.
Civil Appeal (Rent) No.13 of 2022
whereby the judgement of Prescribed
Authority has been upheld is also under
challenge.

5. Learned counsel for petitioner
submits that the property in question which
was residential in nature was earlier in the
coparcenership of one Bhola Nath, Smt.
Raj Rani and Prahlad Prasad. It is
submitted that during the life time of Bhola
Nath, the parties were settled in their own
portion of the aforesaid property and the
predecessor in interest of petitioners, Jai
Narain Singh Kushwaha was inducted into
the property. It is submitted that there never
existed any Landlord-Tenant relationship
between Bhola Nath and Jai Narain Singh
Kushwaha. It is further submitted that
subsequently in 1958, predecessor in
interest of petitioners, Jai Narain Singh
Kushwaha purchased the property in
question from Bhola Nath by means of an
oral sale and ever since, the predecessor-ininterest of the petitioners is in possession of
the property in question as owner.

6. It is submitted that subsequently,
the petitioners were surprised to receive
notice under Section 106 of the Transfer of
Property Act sent by opposite party no.3
indicating therein that he is the owner in
possession of the property concerned
requiring ejectment and arrears of rent and
damages from the petitioner. It is also
submitted that subsequently application
under Section 21 (1) (a) of U.P. Urban
Buildings (Regulation of Letting, Rent and
Eviction) Act, 1972 (hereinafter referred to
as U.P. Act No.13 of 1972) was filed by
opposite party no.3 against petitioners
seeking release of the property on the
ground of bonafide need. It is submitted
that petitioners put in appearance in the
aforesaid proceedings and filed their
written statement specifically denying any
Landlord-Tenant relationship between the
petitioners
and
opposite
party
no.3.
Attention has been drawn to additional plea
taken in written statement to the effect that
the property in question was in possession
of Late Mr. Jai Narain Singh Kushwaha
and after his demise, petitioners being his
heirs are in possession over the property
concerned in succession. Plea with regard
to oral sale of the property between Bhola
Nath and Jai Narain Singh Kushwaha has
also been adverted to. Learned counsel has
also drawn attention to the pleadings taken
in written statement to the effect hat an
alternative plea of adverse possession has
also been taken by petitioners in the written
statement.

7. Learned counsel for petitioner as
such submits that once a specific plea has
been taken by petitioner-defendants that
they were not tenants in the property in
question and were in fact owners of the
property, the appropriate action required to
be taken by Prescribed Authority was to
have returned the plaint for presentation in
appropriate proceedings before competent
court. It is also submitted that the
Prescribed Authority as well as appellate
authority were required to have addressed
the issue of title as claimed by petitioner-
826 INDIAN LAW REPORTS ALLAHABAD SERIES
defendants as incidental to the main issue
but
issue
regarding
Landlord-Tenant
relationship has been decided in a cursory
manner by the courts only basing their
decision on the alleged sale deed dated
01.10.1986 said to have been executed in
favour of opposite party no.3-plaintiff
without any adjudication with regard to
Landlord-Tenant relationship between the
two. It is also submitted that in terms of
Section 3(j) of U.P. Act No.13 of 1972, the
concept of ?landlord? is entirely different
from the concept of owner of the property
and as such the authorities while delivering
the judgments were required to address the
said issue raised by petitioner-defendants. It
has also been submitted that the alternative
plea of adverse possession has also been
decided in a cursory manner.

8. Learned counsel for petitioner has
also laid emphasis to the fact that issues
numbered 2 and 3 framed by the Prescribed
Authority pertaining to bonafide need of
the landlord and comparative hardship have
also not addressed the pleadings and
grounds raised by petitioner-defendants.
Learned counsel has adverted to a decision
of Hon'ble the Supreme Court in Mahabir
Prasad and others v. Ram Phal, reported
in (1988) 4 SCC 194 and a Division Bench
judgment of Delhi High Court in Naeem
Ahmed v. Yash Pal Malhotra (Deceased)
through LR's and another, reported in
(2012) 9 AD (Delhi) 138 to buttress his
submissions.

9. Learned counsel appearing on
behalf of the answering opposite party has
refuted the submissions advanced by
learned
counsel
for
petitioner
with
submission that in the application filed
under section 21(1)(a) of U.P. Act No. 13 of
1972, a specific plea has been taken that
petitioner-defendants were tenants of the
property in question since the time of Bhola
Nath whereafter a suit for partition
numbering Regular Suit 6 of 1960 was filed
between the co-parceners of the property in
which preliminary decree was also issued
on 24.04.1961 with final decree being
passed on 27.04.1974. It is submitted that
at the time of passing of the preliminary
decree, the said Bhola Nath was very much
alive and was a party to the proceedings
and has never mentioned the fact that he
has ever executed any oral sale of property
in question in favour of Jain Narain Singh
Kushwaha. It is further submitted that in
pursuance of the final decree dated
27.04.1974, the portion of property in
question was partitioned and fell in share of
Smt. Raj Rani who by means of a
registered sale deed dated 01.10.1986
transferred the aforesaid property in favour
of answering opposite party-plaintiff. It is
also submitted that neither final decree
dated 27.04.1974 nor the registered sale
deed dated 01.10.1986 has ever been
challenged by anyone and the same has
therefore attained finality.

10. Learned counsel as such submits
that it is in terms of Section 109 of the
Transfer of Property Act that answering
opposite party-plaintiff has derived not
only ownership but also rights of lessor
over the property in question and would
therefore be deemed to be a ?landlord? in
terms of Section 3(j) of U.P. Act No.13 of
1972. It is also submitted that in terms of
the Transfer of Property Act, there cannot
be any sale of immovable property by an
oral sale and as such also the courts below
have correctly held that the petitionerdefendants have failed to prove any oral
sale said to have been executed in favour of
their predecessor-in-interest in year 1958.
In the alternative, it is submitted that even
otherwise a sale deed of immovable
2 All. Smt. Sharda Devi & Anr. Vs. D.J. Hardoi & Ors.
827
property is compulsorily required to be
registered under Section 17 of Registration
Act, failing which no such deed can be
taken into evidence. Learned counsel has
further submitted that the petitionerdefendants have also failed to prove their
alternative plea of adverse possession and
in such circumstances, the courts below
were right in holding a Landlord-Tenant
relationship between the two as well as
finding recorded on bonafide need and
comparative hardship since the petitionerdefendants were already in possession of an
alternative accommodation in the same city.
Learned counsel has adverted to the
judgment of Hon'ble Supreme Court in
Gopi @ Goverdhannath (d) by LRs &
ors v. Sri Ballabh Vyas, [SLP No.27679 of
2018, decided on 22.09.2022] decisions of
this Court in Om Prakash Yadav v. Bal
Deo
Dass
Yadav,
reported
in
MANU/UP/3190/2011;
Dharam
Das
Gupta v. VIIIth Additional District
Judge, Varanasi and others reported in
1992 S.C.D. 381; and Ram Swaroop v.
District Judge, Hardoi and others,
reported in 1985 AWC 434 to buttress his
submissions.

11.

Upon
consideration
of
submissions advanced by learned counsel
for petitioner and upon perusal of material
on record, it appears that the aforesaid
Application under Section 21(1)(b) of U.P.
Act No. 13 of 1972 has been filed by
opposite party no.3 claiming to be landlord
of the property in question and describing
petitioner-defendants as tenants in the
property. As indicated herein above, the
answering
opposite
party-plaintiff
has
claimed that the property in question was in
coparcenership and suit for partition was
filed in year 1960 whereafter a final decree
was passed on 27.04.1974 whereafter the
property in question fell in the share of
Smt. Raj Rani who subsequently executed a
registered sale deed in favour of answering
opposite party-plaintiff on 01.10.1986.

12. The Prescribed Authority framed
three issues for determination with issue
no.1 pertaining to question of LandlordTenant relationship between the two; issue
no.2 pertaining to bona fide need of
applicant and issue no.3 pertaining to
comparative hardship. All three issues have
been decided in favour of plaintiff.

13. From a perusal of judgment and order
dated 26.05.2022, it is evident that the
Prescribed
Authority
has
held
the
answering opposite party-plaintiff to be
owner in possession of the property in
question in pursuance to the registered sale
deed dated 01.10.1986 and on that basis it
has derived a conclusion that the answering
opposite party-plaintiffs would be deemed
to be landlord of the property. Issue of the
petitioner-defendants being tenants in the
property in question has been dealt with in
the manner that first there could not have
been any oral sale deed as claimed in 1958
particularly since petitioner-defendants has
failed to prove any such alleged sale; and
secondly, on the ground that admittedly the
predecessor in interest of the petitionerdefendants was inducted into property in
question by Bhola Nath and the petitionerdefendants have failed to indicate the
capacity in which they were inducted in the
property in question and has therefore
drawn an inference that the predecessor in
interest of petitioner-defendants could have
been inducted in the property in question
only as tenant and therefore tenancy as
such would devolve upon the petitioners.
The Prescribed Authority has also recorded
a finding that the petitioner-defendants
have been unable to prove their case of
adverse possession.
828 INDIAN LAW REPORTS ALLAHABAD SERIES

14. With regard to bonafide need, the
Prescribed Authority has recorded a finding
that
as
defendants
in
their
written
statements have clearly admitted the fact
that defendant no.2 has already purchased a
residential house in the same city, therefore
they would be precluded from challenging
the bonafide need of plaintiff-opposite
party. Once the bonafide need was found to
be in favour of plaintiff-opposite party, the
aspect of comparative hardship has also
been decided in his favour.

15. The appellate court in in its
judgment and order also framed the
same points of determination as the
Prescribed Authority with additional
point as to whether the judgment and
decree passed by the court below
required any modification or change. A
reading of the judgment indicates that
the reasoning given by the Prescribed
Authority in its judgment and order has
been virtually followed by the appellate
court.

16. From a perusal of aforesaid
factors, the following questions which
arise for determination are as follows:-

(a) Whether there existed any
Landlord-Tenant relationship between
the answering opposite party-plaintiff
and
petitioner-defendants
or
the
plaintiff-defendants had an independent
right of ownership over the property in
question as also the issue pertaining to
adverse possession?

(b) Whether the courts below have
decided the issue pertaining to bonafide
need and comparative hardship in the
correct perspective and as per U.P. Act
No.13 of 1972?

Question (a)

Whether
there
existed
any
Landlord-Tenant relationship between
the answering opposite party-plaintiff
and
petitioner-defendants
or
the
plaintiff-defendants had an independent
right of ownership over the property in
question as also the issue pertaining to
adverse possession?

17. With regard to aforesaid question,
it is noticed that in the plaint, it has been
specifically averred that the predecessor in
interest of petitioners, i.e. Raj Narain Singh
Kushwaha was a tenant in the property in
question and paying a rent of Rs.33/- per
month to Smt. Raj Rani and upon his
demise petitioner-defendants succeeded to
the tenancy and continued in possession
over the property in question in the same
capacity. It has also been stated that
plaintiff-answering opposite party attained
ownership over the property in question by
means of registered sale deed dated
01.10.1986 executed by Smt. Raj Rani in
their favour. In written statement, while it
has been admitted that the predecessor in
interest of petitioner-defendants Jai Narain
Singh Kushwaha was in possession of the
property in question and after his demise,
the petitioner-defendants succeeded to
possession over the property in question
but the aspect of their being tenants in the
property has been denied and in fact it has
been stated that erstwhile owner of the
property Bhola Nath had inducted Jai
Narain Singh Kushwaha over the property
in question since they were great friends
and subsequently an oral sale deed was
executed between Bhola Nath and Jai
Narain
Singh
Kushwaha
whereby
predecessor in interest of petitioners
obtained ownership rights over the property
in question. The aspect of execution of
registered sale deed dated 01.10.1986 has
been denied and in the alternative a plea
2 All. Smt. Sharda Devi & Anr. Vs. D.J. Hardoi & Ors.
829
has been taken with regard to adverse
possession over the property in question
vis-a-vis plaintiff-opposite parties.

18. With regard to aspect of
determination of ownership over the
property in question, Hon'ble the Supreme
Court in Appolo Zipper India Ltd. v. W.
Newman & Company Limited, reported
in (2018) 6 SCC 744 has held that in
proceedings under Rent Control, the aspect
of title over the property cannot be decided
as a main issue although the same may be
seen as incidental for determination of the
question of landlord of the property. It is in
keeping with this aspect that the courts
below have adverted to submissions of
petitioner-defendants claiming ownership
rights over the property in question.

19. Section 54 of the Transfer of
Property Act, 1882 clearly defines 'sale' as
well as the aspect as to how a sale is
required to be made and clearly indicates
that a sale as contemplated under Section
54 of the Act of 1882 can be only by means
of a registered instrument in case of a
immovable property. The concept has also
been defined as a transfer of ownership in
exchange for a price paid or promised or
part-paid and part-promised. As such, it is
evident that for a sale to have taken place in
terms of Section 54 of the Act, there should
not only be a registered instrument but
there should be adequate consideration also
paid for transfer of ownership in terms
thereof.

20. Section 17 of the Registration
Act,1908 particularly provides the manner
in which an instrument of transfer of
immovable property is required to be made.
The said provision also contemplates that
an instrument not duly stamped and
registered in terms thereof would be
inadmissible as evidence.

21. In contemplation of the aforesaid
aspect, it is evident that a sale of
immovable property can take place only by
means of a registered instrument duly
executed between the parties for a valid
consideration. In the present case, the
aspect of ownership has been taken as a
plea by petitioner-defendants on the ground
of verbal sale having been executed
between Bhola Nath and Jai Narain Singh
Kushwaha. Such a concept of transfer of
property by sale is alien to Section 54 of
the Transfer of Property Act and as as such
in the considered opinion of this Court,
prescribed as well as appellate authority
cannot be said to have erred in recording a
finding that petitioner-defendants have
failed to prove their prima facie title or
ownership over the property in question
while plaintiffs were able to do so. Until
and unless the petitioner-defendants could
have
prima
facie
substantiated
their
pleading of title as per law, there was no
occasion for the prescribed Authority to
have returned the plaint for declaration of
title.

22. The only provision which permits
oral transfer of property is indicated in
Section 9 of the Transfer of Property Act
but the same states that the transfer of
property may be made without writing in
every case in which a writing is not
expressly required by law. In the present
case, it is evident that by virtue of Section
54 of the Transfer of Property Act, a
specific transfer of property by means of a
registered instrument is mandatory and
therefore the provisions of oral transfer as
envisaged under Section 9 of the Transfer
of Property Act would be inapplicable.
830 INDIAN LAW REPORTS ALLAHABAD SERIES

23. Learned counsel for petitioner has
laid much emphasis on the fact that title or
ownership of the property in question
would not automatically result in the aspect
of plaintiff becoming a landlord of the
property since the two concepts are
different in nature and has particularly
submitted that since the plaintiffs failed to
provide any rent receipt executed between
plaintiffs and defendants or predecessor in
interest of defendants, there cannot be any
Landlord-Tenant
relationship
between
them. It has also been submitted that the
aspect of Landlord-Tenant relationship as
envisaged under Section 3(j) of U.P. Act
No.13 of 1972 has not been considered by
the courts concerned.

24.

With
regard
to
aforesaid
submissions, it does not appear that any
rent receipts were produced during course
of proceedings by plaintiffs. Nonetheless,
the aspect of plaintiffs being landlord over
the property in question is required to be
considered in terms of Section 3(j) of U.P.
Act No.13 of 1972, which is as follows:

"S.3(j) "landlord", in relation to a
building, means a person to whom its rent
is or if the building were let, would be,
payable and includes, except in clause (g),
the agent or attorney, of such person"

25. A perusal of the aforesaid definition
clearly indicates that landlord in relation to
a building would be a person to whom rent
is or would be payable and includes the
agent or attorney of such person. The
concept of landlord as such is quite distinct
from that of owner of the property in
question. Upon applicability of definition
of landlord in the present case, would
indicate that it is admitted between the
parties that Bhola Nath was a coparcener of
the property in question. It is also evident
from record that a partition suit had been
instituted in 1960 between coparceners of
the property in question including Bhola
Nath which resulted in final decree dated
24.04.1974
having
been
passed
whereunder, property in question is said to
have come into share of Smt. Raj Rani. The
petitioner-defendants have not denied the
aspect of aforesaid suit having been
instituted and resulting in final decree so
passed. It is also admitted that there was no
challenge raised to the registered sale deed
dated 01.10.1986 executed by said Smt. Raj
Rani in favour of plaintiffs.

26. Section 109 of the Transfer of
Property Act, 1882 pertains to rights of
lessor-transferee in the following terms :-

"Section 109 - Rights of lessor?s
transferee. If the lessor transfers the
property leased, or any part thereof, or any
part of his interest therein, the transferee, in
the absence of a contract to the contrary,
shall possess all the rights, and if the lessee
so elects, be subject to all the liabilities of
the lessor as to the property or part
transferred so long as he is the owner of it;
but the lessor shall not, by reason only of
such transfer cease to be subject to any of
the liabilities imposed upon him by the
lease, unless the lessee elects to treat the
transferee as the person liable to him:

Provided that the transferee is not
entitled to arrears of rent due before the
transfer, and that, if the lessee, not having
reason to believe that such transfer has
been made, pays rent to the lessor, the
lessee shall not be liable to pay such rent
over again to the transferee.

The lessor, the transferee and the
lessee may determine what proportion of
the premium or rent reserved by the lease is
payable in respect of the part so transferred,
and,
in
case
they
disagree,
such
2 All. Smt. Sharda Devi & Anr. Vs. D.J. Hardoi & Ors.
831
determination may be made by any court
having jurisdiction to entertain a suit for the
possession of the property leased."

27. The provisions of Section 109 of
Transfer of Property Act particularly with
regard to rights of transferee as a landlord
has been dealt with by Hon'ble the Supreme
Court in Gopi @ Goverdhannath (d) by
LRs & ors(Supra) in the following
manner:-

"27. ............................A bare perusal
of Section 109 of the Transfer of Property
Act would reveal that if a landlord transfers
the property leased out or any part of it, the
transferee, in the absence of any contract to
the contrary, shall possess all the rights of
the landlord. Hence, the impact of Ext.P3,
in the absence of any contract to the
contrary, is that the respondent herein has
stepped into the shoes of Smt. Phool
Kumari. In terms of Section 109 of the
Transfer of Property Act it is clear that
attornment by the lessee is not necessary
for the transfer of the property leased out to
him. Thus, the inevitable consequence of
transfer of a leased-out property by the
landlord in accordance with law to a third
party, in the absence of a contract to the
contrary, is that the third party concerned
would not only become its owner having
title but also would step into the shoes of
the vendor as the landlord in relation to the
lease holder at the relevant point of time. In
such circumstances, the findings of the
courts below that there exists jural
relationship of landlord and tenant between
the respondent and the appellants can only
be held as the correct and lawful
conclusion in the light of the evidence on
record based on the legal position."

28. It is the admitted case of petitionerdefendants that they are claiming through late
Jai Narayan Singh Kushwaha who in turn is
said to have been inducted into property by
Bhola Nath. There is no averment by petitionerdefendants as to the capacity in which they
were inducted into the property in question.

29. Since there is no denial that U.P. Act
No.13 of 1972 would be applicable in the
present case, the status of petitioner with regard
to his occupation of the premises in dispute is
required to be seen in terms of such statutory
provisions.

Section 3(a) defines tenant in relation to a
building, as meaning a person by whom its rent
is payable.

30. The relevant aspect of definition of
tenant as such is a person from whom rent is
payable whether or not it is actually paid.
Petitioner has not been able to indicate capacity
in which his predecessor in interest is said to
have been inducted but his status would
thereafter be covered by virtue of Section 14 of
the Act of 1972 which reads as follows:-

S.14 "Regularisation or occupation of
existing tenants - Notwithstanding anything
contained in this Act or any other law for the
time being in force, any licensee (within the
meaning of Section 2-A) or a tenant in
occupation of a building with the consent of the
landlord immediately before the commencement
of the Uttar Pradesh Urban Buildings
(Regulation of Letting, Rent and Eviction)
(Amendment) Act, 1976, not being a person
against whom any suit or proceeding for
eviction is pending before any Court or
authority on the date of such commencement
shall be deemed to be an authorised licensee or
tenant of such building."

31. A reading of aforesaid Section
makes it evident that any licensee or a
tenant in occupation of a building with the
832 INDIAN LAW REPORTS ALLAHABAD SERIES
consent of landlord immediately before
commencement of the Act would be
deemed to be an authorized licensee or
tenant of such building. It is evident that
with the advent of Section 14 of the Act of
1972, the status of petitioner would be that
of an authorized licensee or tenant of the
building.

32. Once petitioner would be deemed
to be a statutory tenant in terms of Section
14 of the Act of 1972, necessarily
proceedings for release of building under
occupation of tenant in terms of Section 21
of the Act would be maintainable.

33. Considering aforesaid aspects, it
is evident that opposite party-landlord was
clearly able to make out a prima facie case
of being owner-landlord of the premises in
question in which petitioner was in
occupation as a tenant. Therefore, once
opposite party-landlord had been able to
prima facie satisfy his status as landlord of
the building, there was no question of
returning the plaint for declaration of title.
Submissions advanced by learned counsel
for petitioner contrary thereto are therefore
rejected.

34. Even with regard to aspect of
adverse possession, Hon'ble the Supreme
Court in T. Anjanappa and others v.
Somalingappa and another, reported in
(2006) 7 SCC 570 has indicated conditions
for applicability of such a proposition in the
following terms:-

"20.It is well-recognised proposition
in law that mere possession however long
does not necessarily mean that it is
adverse to the true owner. Adverse
possession really means the hostile
possession
which
is
expressly
or
impliedly in denial of title of the true
owner and in order to constitute adverse
possession the possession proved must be
adequate in continuity, in publicity and in
extent so as to show that it is adverse to
the
true
owner.
The
classical
requirements of acquisition of title by
adverse
possession
are
that
such
possession in denial of the true owner's
title
must
be
peaceful,
open
and
continuous. The possession must be open
and hostile enough to be capable of being
known by the parties interested in the
property, though it is not necessary that
there should be evidence of the adverse
possessor actually informing the real
owner of the former's hostile action."

35. Upon applicability of aforesaid
proposition of law, it would be evident that
there is no pleading by petitioner as to when
he claimed title adverse to that of answering
opposite party and which was brought to
notice of landlord. As such, it cannot be said
that stand of petitioner of acquisition of title
by adverse possession was in any way in
denial of the title of landlord and more so that
such adverse title was peaceful, open and
continuous or that the hostile possession was
in the knowledge of the landlord.

36. In view of aforesaid, the
submissions on behalf of petitioner with
regard to adverse possession of the property
also fails and is liable to be rejected.

37. In view of aforesaid discussions,
Question (a) is answered negatively against
petitioner-tenant.

Question (b)

Whether the courts below have
decided the issue pertaining to bonafide
need and comparative hardship in the
correct perspective and as per U.P. Act
No.13 of 1972?
2 All. Jage Ram Bhati Vs. State of U.P. & Ors.
833

38. With regard to aforesaid question
formulated, it is relevant that Section 21 in its
explanation (i) to Section 21(1) of the Act of 1972
clearly indicates as follows:-

" S.21 - Proceedings for release of building
under occupation of tenant -

(1) .........................................

(a) ........................................;

(b) .......................................

Provided that ................

Provided further that ...................;

Provided also that ...................--

(i) .............................;

(ii) .............................;

(iii) ............................

Provided also that .........................

Explanation.--In the case of a residential
building:--

(i) where the tenant or any member of his
family who has been normally residing with or is
wholly dependent on him has built or has
otherwise acquired in a vacant state or has got
vacated after acquisition, a residential building in
the same city, municipality, notified area or town
area, no objection by the tenant against an
application under this sub-section shall be
entertained;

Note - For the purposes of this clause, a
person shall be deemed to have otherwise
acquired a building if he is occupying a public
building for residential purposes as a tenant,
allottee or licensee. "

39. In the written statement filed by
petitioner before the Prescribed Authority, in
paragraph 31, it has been specifically admitted that
defendant no.2 (petitioner no.2 herein) who is also
claiming through late Jai Narain Singh Kushwaha,
has purchased a residential accommodation in the
same city in Civil Lines, Hardoi and is the owner
in possession thereof. It has been further stated that
defendants 1 to 3 & 5, i.e. all the tenants in
common are living with him in the said
accommodation in Civil Lines, Hardoi.

40. In view of Explanation (i) to Section
21(1) of the Act of 1972, it is evident that no
objection by petitioner as tenant to the application
filed by answering opposite party-landlord was
entertainable as has been rightly held in impugned
orders.

41. Considering aforesaid, Question (b) is
also answered in negative against petitionertenant.

42. Resultantly, the petition being devoid of
merit is dismissed. The parties to bear their own
cost.

43. Learned counsel for petitioner(s) prays
for some time to hand over vacant possession of
the property in question to answering opposite
party.

44. In view of such prayer being made, it is
directed that petitioner(s) shall hand over peaceful
and vacant possession of the premises in question
to opposite party no.3-landlord within a period of
four months, i.e. by 02.06.2023 positively. In case
of failure to do so, opposite party-landlord is
granted liberty to approach this Court again by
filing an appropriate application in this petition.
----------
(2023) 2 ILRA 833
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.01.2023

BEFORE

THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Matter Under Article 227 No. 7928 of
2022(Criminal)

Jage Ram Bhati ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner: