# Suneet Kumar v. Krishna Kumar Agarwal

- **Citation:** (2020) 6 ILRA 902
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-05-26
- **Case number:** WRIT A No. 21055 of 2019
- **Bench:** Saral Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/suneet-kumar-v-krishna-kumar-agarwal-45824
- **Pages:** 10

## Headnote

Law
-
Uttar
Pradesh
Urban
Buildings (Regulation of Letting, Rent
and Eviction) Act, 1972: Section 21(1)(a)
- Merely a family settlement had taken
place that would not raise a presumption
of it being collusive and tenant cannot
prevent the family members of the
landlord to partition their property.
However, there is an exception to the
aforesaid proposition that
if the family
settlement is a device to avoid rent control law
or frustrate the defence of tenant available to
him in rent control laws, he can raise objection
in this regard in pleading and prove it by filing
evidence. (Para 23)
The Court found it evident from the shreds of
evidence on record that the property on which
godown exist was jointly purchased by the
respondent and his three brothers. The
respondent became the exclusive owner of the
godown on the basis of family settlement and
no member of the respondent's family has
claim over the godown is manifest from the
joint affidavit of brothers. It was further noted
that the petitioner in the written statement
had failed to establish that the family
settlement was collusive and was a device to
avoid rent control laws which give protection
to the tenant from eviction except on the
ground specified in the relevant statute nor
there was any evidence on record which
demonstrates that family settlement was a
sham transaction entered with a purpose to
overcome the rent control laws. (Para 19)
It is a settled law that co-owner can
maintain a suit (release application) for
eviction against a tenant and the tenant
cannot
raise
an
objection
to
its
maintainability. (Para 25,28)
Writ Petition Rejected. (E-10)

List of cases cited:-

## Text

902 INDIAN LAW REPORTS ALLAHABAD SERIES
where the release of building sought
under Section 21(b) of the Act,1972
requires the landlord to satisfy the
conditions enumerated in Rule 17 of
Rules 1972, but not in a case where the
release is sought under Section 21(a) of
the Act,1972 on the ground of bonafide
need. Thus, the judgment of the Apex
Court in the case of K.N. Anantharaja
Gupta had been rendered in a different
factual context and not applicable in the
facts of the present case.

26. Thus, this court is of the view
that as the petitioners have not challenged
the financial capacity of the respondent
before the authorities below, the same
cannot be allowed to be raised for the first
time in the writ petition.

27. For the reasons given above, this
Court does not find any illegality in the
orders impugned in this writ petition. The
writ
petition
lacks
merit
and
is
accordingly, dismissed with no order as
to the cost. Interim order stands vacated.
----------
(2020)06ILR A902
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.05.2020

BEFORE
THE HON'BLE SARAL SRIVASTAVA, J.

WRIT A No. 21055 of 2019

Suneet Kumar ...Petitioner
Versus

Krishna Kumar Agarwal ...Respondent

Counsel for the Petitioner:
Sri Divakar Rai Sharma, Sri P.K.Jain

Counsel for the Respondent:
Sri Anil Kumar Rai, Sri Pankaj Agarwal, Sri
Vishnu Singh.

Civil
Law
-
Uttar
Pradesh
Urban
Buildings (Regulation of Letting, Rent
and Eviction) Act, 1972: Section 21(1)(a)
- Merely a family settlement had taken
place that would not raise a presumption
of it being collusive and tenant cannot
prevent the family members of the
landlord to partition their property.
However, there is an exception to the
aforesaid proposition that
if the family
settlement is a device to avoid rent control law
or frustrate the defence of tenant available to
him in rent control laws, he can raise objection
in this regard in pleading and prove it by filing
evidence. (Para 23)
The Court found it evident from the shreds of
evidence on record that the property on which
godown exist was jointly purchased by the
respondent and his three brothers. The
respondent became the exclusive owner of the
godown on the basis of family settlement and
no member of the respondent's family has
claim over the godown is manifest from the
joint affidavit of brothers. It was further noted
that the petitioner in the written statement
had failed to establish that the family
settlement was collusive and was a device to
avoid rent control laws which give protection
to the tenant from eviction except on the
ground specified in the relevant statute nor
there was any evidence on record which
demonstrates that family settlement was a
sham transaction entered with a purpose to
overcome the rent control laws. (Para 19)
It is a settled law that co-owner can
maintain a suit (release application) for
eviction against a tenant and the tenant
cannot
raise
an
objection
to
its
maintainability. (Para 25,28)
Writ Petition Rejected. (E-10)

List of cases cited:-

1. Raj Vardhan Khandoori (Sri.) Vs. Additional
District Judge 2003 (2) ARC 575
6 All. Suneet Kumar Vs. Krishna Kumar Agarwal
903
2. S.K. Sattar Sk. Mohd. Choudhari Vs.
Gundappa Amabadas Bukate AIR 1997 SC 998

3. Managal Prasad Vs. Vth Additional District
Judge, Basti 1992 AIR (All) 235

4. Sita Ram Bhama Vs. Ramvatar Bhama AIR
2018 SC 3057

5. Bhoop Singh Vs. Ram Singh Major and
other AIR 1996 SC 196

6. Bankey Bihari Vs. Surya Narain alias Munno
AIR 1999 (All) 167

7. Om Prakash & Another Vs. Mishri Lal
(Dead) Represented by his Lr. Savitri Devi
2017 AIR (SC) 1597 (followed)

8. Achal Kumar Chaddha Vs. Santosh Kumar
Kesharwani 2008 (9) ADJ 282 (followed)

9. Sajal Kumar Jauhari Vs. District Judge,
Ballia and 9 Others 2016 (2) ARC 46

(Delivered by Hon'ble Saral Srivastava, J.)

1. Heard Sri Divakar Rai Sharma,
learned counsel for the petitioner and Sri
Pankaj Agarwal, learned counsel for the
respondent.

2. The petitioner-tenant through the
present
petition
has
assailed
the
judgement and order dated 02.11.2018
passed by the Prescribed Authority/Judge
Small Causes Court, Aligarh in UPUB
Case No.33 of 2012 whereby application
of respondent-landlord under Section
21(1)(a) of the U.P. Act No.13 of 1972
(hereinafter referred to as 'Act, 1972') for
release of a godown has been allowed,
and
judgement
and
order
dated
25.10.2019 passed by Additional District
Judge, Court No.8, Aligarh dismissing the
UPUB Miscellaneous Appeal No.10 of
2018 preferred by the petitioner against
the judgement and order dated 2.11.2018.

3.

The
respondent-landlord
(hereinafter referred as 'respondent') has
filed release application under Section 21
(1)(a) of the Act, 1972 against the
petitioner-tenant (hereinafter referred as
'petitioner') registered as UPUB Case
No.33 of 2012 for release of a godown
which exists over an area of 72 square
yards in the property bearing municipal
No.7/3, Patthar Bazar, Shahar Koil,
Aligarh. The case of the respondent is that
property
bearing
municipal
No.7/3,
Patthar Bazar, Shahar Koil, Aligarh
(hereinafter referred as 'property') was
purchased by the respondent and his three
brothers by sale deed dated 25.06.1994
from one Upendra Kumar. A godown in
an area of 72 square yards exists over the
aforesaid property. It is stated that
respondent and his brother Gopal Prasad
Agarwal in January 1995 decided to rent
out the aforesaid godown to the petitioner
on rent @ Rs.1,000/- per month. The
petitioner became tenant of the aforesaid
godown since January 1995 @ Rs.1,000/-
per month. The petitioner had paid the
rent @ Rs.1,000/- to Gopal Prasad
Agarwal till January 1996, thereafter, no
rent was paid which led to the institution
of a suit for eviction and arrears of rent by
Gopal
Prasad
Agarwal
against
the
petitioner.

4. It is further stated that the family
settlement had entered into between the
respondent, his brother Gopal Prasad
Agarwal and two other brothers namely
Ganga Prasad Agarwal and Atish Kumar
(since deceased) on 01.09.2011 in which
godown came in the share of the
respondent. The respondent suffered a
paralytic attack on 04.09.2011 due to
which he became unemployed. The
respondent has no source of income and
he needs money for the education of his
904 INDIAN LAW REPORTS ALLAHABAD SERIES
eldest son Shivam Agarwal. It is further
stated that the financial condition of the
family of the respondent is in distress. His
eldest son has experience of the business
of hardware and plywood and the godown
is needed for the establishment of
business of his son. It is also averred that
the petitioner has other shops in his
possession, and he would not face
hardship in shifting his business in those
shop.
In
the
aforesaid
backdrop,
respondent has prayed for the release of
the godown.

5. The petitioner filed written
statement contending inter alia that as per
notice
dated
12.09.2012
of
the
respondent, the godown had come in the
share of Gopal Prasad Agarwal in a
family settlement. Hence, Gopal Prasad
Agarwal is the owner of the godown. The
respondent has not filed any document to
show his title over the godown. It is
further
pleaded
that
Gopal
Prasad
Agarwal had instituted Suit No.39 of
2009 against the petitioner in respect of
the godown for eviction and arrears of
rent in which respondent had filed an
application for impleadment based on
family settlement dated 01.09.2011 which
was dismissed on the ground that family
settlement is not registered. It is also
pleaded that father of the petitioner
Ganeshi Lal Prem Dayal was the tenant of
the godown for the last 72 years and was
doing business in the name and style of
'Shri Ganeshi Lal Prem Dayal'. The
petitioner denied that respondent is the
owner of the godown, therefore, release
application by the respondent is not
maintainable. Besides above, petitioner
also denied the fact that the need of the
respondent is bonafide and comparative
hardship also lays in favour of the
respondent.

6. On the basis of the aforesaid
pleadings, the trial court framed as many
as three issues. Issue no.1 was as to
whether there was relationship of landlord
and tenant between respondent and
petitioner. Issue no.2 was in respect of
bonafide need of respondent and issue
no.3 in respect of comparative hardship.

7. The trial court in deciding the
issue
no.1
noticed
that
respondent
alongwith
his
three
brothers
had
purchased the property by sale deed dated
25.06.1994, therefore, the respondent was
the co-owner of the godown. The trial
court further noticed the family settlement
dated 01.09.2011 and also the joint
affidavit, paper no.30Ga, filed by Gopal
Prasad
Agarwal,
Amit
Agarwal
acknowledging the fact that property was
jointly purchased by Krishna Kumar
Agarwal (respondent) with his brothers
namely, Atish Kumar Agarwal and Ganga
Prasad Agarwal and in family settlement
dated 01.09.2011 godown fell in the share
of
the
respondent-
Krishna
Kumar
Agarwal. They also averred in the
affidavit that respondent-Krishna Kumar
Agarwal is the exclusive owner and
landlord of the godown.

8. The trial court also noticed
another affidavit of Bharat Kumar, who
also endorsed the fact that family
settlement had been entered between the
family members of the respondent on
01.09.2011.
The
trial
court
further
considered the evidence led by the
petitioner and also the written statement
filed by father of the petitioner in SCC
Suit No.39 of 2009 wherein father of the
petitioner had admitted the respondent as
the owner of the godown. The trial court
based on the aforesaid evidence and
material on the record returned a finding
6 All. Suneet Kumar Vs. Krishna Kumar Agarwal
905
that the respondent is the owner of the
godown and there was relationship of
landlord and tenant between respondent
and petitioner.

9. On the issue of bonafide need and
comparative hardship, trial court after
appreciating the material and shreds of
evidence on record held the need of the
respondent is pressing and bonafide, and
comparative hardship lay in favour of the
respondent.

10. The petitioner feeling aggrieved
by the order of the trial court preferred an
appeal under Section 22 of Act, 1972
registered as Appeal No.10 of 2018. The
appellate court did not find any illegality
in the order of the trial court, and
accordingly, it dismissed the appeal.

11. Learned counsel for the
petitioner has assailed the finding of the
courts below only on the issue no.1
relating to the relationship of landlord and
tenant between respondent and petitioner.
He submits that it is evident from the
notice dated 12.09.2012 sent by the
respondent to petitioner that godown had
fallen in the share of Gopal Prasad
Agarwal in the family settlement arrived
at between the brothers of the respondent
before
the
death
of
their
mother,
therefore,
the
subsequent
family
settlement is collusive and a sham
transaction to oust the petitioner from the
possession of the godown. Thus, he
submits that the tenant can challenge a
collusive family settlement. In support of
the said submission, he has relied upon
the case of Raj Vardhan Khandoori
(Sri.) Vs. Additional District Judge 2003
(2) ARC 575 and S.K. Sattar Sk. Mohd.
Choudhari Vs. Gundappa Amabadas
Bukate AIR 1997 SC 998.

12. His further submission is that a
family settlement unless registered as per
Section 17 of the Registration Act, 1908
can not be read in evidence. Accordingly,
he submits that the family settlement,
which was made part of the decree of
Original Suit No.32 of 2017 (Gopal
Prasad Agarwal Vs. Smt. Munni Devi and
Others), cannot be read in evidence unless
registered under Section 17 of the
Registration Act, 1908. In support of this
submission, he placed reliance upon the
following judgements:-

(i). Mangal Prasad Vs. Vth
Additional District Judge, Basti 1992
AIR (All) 235;

(ii). Sita Ram Bhama Vs.
Ramvatar Bhama AIR 2018 SC 3057;

(iii). Bhoop Singh Vs. Ram
Singh Major and Others AIR 1996 SC
196;

(iv). Bankey Bihari Vs. Surya
Narain alias Munno AIR 1999 (All) 167.

13.

Thus,
based
on
above
submission, it is urged that as the
respondent is not the owner of the
godown,
therefore,
there
was
no
relationship
of
landlord
and
tenant
between respondent and petitioner, and as
such, the release application by the
respondent was not maintainable.

14.

Refuting
the
aforesaid
submission, learned counsel for the
respondent has submitted that both the
courts below have placed reliance upon
the written statement of the father of the
petitioner in SCC Suit No.39 of 2009
wherein father of the petitioner had
admitted the fact that the respondent is
906 INDIAN LAW REPORTS ALLAHABAD SERIES
the owner of the godown. He further
submits that respondent was arrayed as
defendant no.3 in Suit No.414 of 2002
(Firm Shri Ganeshi Lal Prem Dayal Vs.
Ganga Prasad & Others) instituted by
petitioners firm, and, it is manifest from
paragraph no.3 and 4 of the plaint of the
said suit that father of the petitioner had
accepted the respondent as the owner of
the property. His further contention is that
the
respondent
was
impleaded
as
defendant no.4 in Misc. Case No.50 of
2001 filed by the Firm Ganeshi Lal Prem
Dayal in which the fact of ownership of
respondent in respect of the aforesaid
property was admitted by the firm. He has
further placed reliance on the joint
affidavit of Gopal Prasad Agarwal and
Amit Agarwal wherein they admitted
respondent as the owner of the godown
and stated that they have no claim over it.
Thus, he submits that the record of
various suits contested between the firm
of petitioner and respondent and joint
affidavit of Gopal Prasad Agarwal and
Amit Agarwal unambiguously establishes
that the respondent is the owner of the
godown.

15.

He
further
submits
that
petitioner is the tenant and has no locus to
challenge the family settlement dated
01.09.2011. Accordingly, he submits that
the
contention of
counsel
for
the
petitioner that family settlement dated
01.09.2011 is not admissible in evidence
and could not have been relied upon by
the court below unless registered as per
section 17 of Registration Act is without
substance. He further urges that the
finding of the court below that the
respondent is the owner of the godown
and there was relationship of landlord and
tenant between respondent and petitioner
is correct and does not call for any
interference by this Court. In support of
his aforesaid submissions, he has placed
reliance upon the following judgements:-

(i). Om Prakash & Another Vs.
Mishri Lal (Dead) Represented by his
Lr. Savitri Devi 2017 AIR (SC) 1597;

(ii). Achal Kumar Chaddha Vs.
Santosh Kumar Kesharwani 2008 (9)
ADJ 282;,

(iii). Sajal Kumar Jauhari Vs.
District Judge, Ballia and 9 Others 2016
(2) ARC 46.

16. I have considered the rival
submissions of the parties and perused the
record.

17. The court below while returning
the finding on the issue of relationship of
landlord and tenant has placed reliance
upon the various documentary evidence
viz written statement of the father of
petitioner in Original Suit No.39 of 2009,
the plaint of Original Suit No.414 of 2002
(Firm Shri Ganeshi Lal Prem Dayal Vs.
Ganga Prasad & Others), the record of
Miscellaneous Case No.50 of 2001 filed
by Firm Ganeshi Lal Prem Dayal for the
deposit of rent. Besides the above, the
court below also considered the joint
affidavit of Gopal Prasad Agarwal and
Amit Agarwal, paper no.30Ga, wherein
they
had
acknowledged
the
family
settlement dated 01.09.2011 amongst the
family members in which godown fell in
the share of respondent-Krishna Kumar
Agarwal, and the respondent is the
landlord and owner of the godown and
they have no concern with the godown.
The court below elaborately considered
the
above
evidence
and
other
documentary evidence in recording the
6 All. Suneet Kumar Vs. Krishna Kumar Agarwal
907
finding that respondent is the owner of
the godown and there exist relationship of
landlord
and
tenant
between
the
respondent and petitioner.

18. Thus, it is evident from shreds
of evidence on record that property on
which
godown
exist
was
jointly
purchased by the respondent and his three
brothers. The respondent became the
exclusive owner of the godown on the
basis of family settlement, and no
member of respondent's family has claim
over the godown is manifest from the
joint affidavit of Gopal Prasad Agarwal
and Amit Agarwal. Hence, the respondent
is the exclusive owner of the godown.

19. Now the issue which arises for
consideration in view of the submission
of petitioner is whether a tenant can
challenge the family settlement arrived at
between the members of the family of the
landlord.

20. The counsel for the petitioner
has relied upon paragraph 12 of the
judgment of Uttarakhand High Court in
the case of Raj Vardhan Khandoori
(Sri.) (supra) and paragraph 37 of the
judgment of Apex Court in the case of
S.K. Sattar
Sk.
Mohd.
Choudhari
(Supra) in support of his contention that
the tenant can challenge the family
settlement if it is collusive and has been
arrived at to frustrate the defence of the
petitioner.

21. Paragraph 12 of the judgment of
Uttarakhand High Court in the case of
Raj Vardhan Khandoori (Sri.) (supra) is
reproduced hereunder:

"12. It has further been held in
the case of Sharvan Kumar Mittal v.
XVIIIth A.D.J. Meerut and others 2001
(1) ARC 456, as under:

The mere fact that a family
settlement had taken place will not raise a
presumption of its being collusive. Parties
are free to settle their affairs of mutual
agreement through family settlement. If
such a settlement is a device to frustrate
malafide the defence of the tenant then
certainly the tenant should have lead
evidence on the point and passed the plea
and got it adjudicated in appeal. It will be
open to the tenant to raise the objection
regarding
family
settlement
being
collusive; while the appeal itself is being
adjudicated. The Court below in appeal
allowed amendment application. The
main appeal is still pending. I find no
manifest error apparent on the face of the
record in view of the decision of the
Supreme
Court
reported
in
MANU/SC/0016/1969: AIR 1969 SC
1267."

22. Paragraph 37 of the judgment of
Apex Court in the case of S.K. Sattar Sk.
Mohd.
Choudhari
(Supra)
is
also
reproduced hereunder:

"37. In view of the above
discussion, it is obvious that the law with
regard to the spliting 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 co-owners or the colessors agree among themselves and split
by partition the demised property by
908 INDIAN LAW REPORTS ALLAHABAD SERIES
metes and bounds and come to have
definite, positive and identifiable shares
in that property, they 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 tenants except on
specified grounds set out in the relevant
statute."

23. From the reading of the
aforesaid two judgments, it is clear that
merely a family settlement had taken
place, that would not raise a presumption
of it being collusive and tenant cannot
prevent the family members of the
landlord to partition their property.
However, there is an exception to the
aforesaid proposition that if the family
settlement is a device to avoid rent
control law or frustrate the defence of
tenant available to him in rent control
laws, he can raise objection in this regard
in pleading and prove it by filing
evidence.

24. Now coming to the facts of the
present case, the counsel for the petitioner
could not demonstrate from the record
that it was the case of the petitioner in the
written
statement
that
the
family
settlement was collusive and was a device
to avoid rent control laws which give
protection to the tenant from eviction
except on the ground specified in the
relevant statute nor there was any
evidence on record which demonstrates
that the family settlement was a sham
transaction entered with a purpose to
overcome the rent control laws. It is
worth noticing that the release application
by the respondent has been filed under
section 21(a) of Act,1972 on the grounds
available to the landlord in the Act,1972
for seeking eviction of the petitioner.
Thus,
in
the present
case,
family
settlement cannot be termed to be a
collusive and sham transaction to render
petitioner defenceless as the release
application has been filed under Rent
Control Act i.e. Act,1972. Accordingly,
this court finds no merit in the submission
of counsel for the petitioner that family
settlement is a device to overcome the
protection available to the petitioner
under rent control laws.

25. In the instant case, the question
of maintainability of release application
by the respondent can also be looked at
from another point of view. From the
facts
delineated
above,
it
is
unambiguously
established
that
the
respondent was co-owner of the property
6 All. Suneet Kumar Vs. Krishna Kumar Agarwal
909
over which godown exists. It is settled
law that a co-owner can maintain a suit
for eviction against a tenant. Reference
may be had to the case of Om Prakash
(supra), wherein the apex court has held
that a suit for eviction of a tenant can be
maintained by one of the co-owners and
tenant has no right to question the
maintainability of the suit on the ground
that other co-owners were not joined.
Paragraphs 32 and 34 of the judgement
are being extracted hereinbelow:-

"32. It is no longer res integra
and is settled by this Court in Sri Ram
Pasricha vs. Jagannath and Ors., (1976)
4 SCC 184, Dhannalal vs. Kalawatibai
and Ors. (2002) 6 SCC 16 and India
Umberalla Manufacturing Co. and Ors.
vs. Bhagabandei Agarwalla (dead) by
Lrs. Savitri Agarwalla (Smt.) and Ors.
(2004) 3 SCC 178 that a suit for eviction
of a tenant can be maintained by one of
the co-owners and it would be no defence
to
the
tenant
to
question
the
maintainability of the suit on the ground
that the other co-owners were not joined
as parties to the suit. The judicially
propounded proposition is that when the
property forming the subject matter of
eviction proceedings is owned by several
co-owners, every co-owner owns every
part and every bit of the joint property
along with others and thus it cannot be
said that he is only a part owner or a
fractional owner of the property and that
he can alone maintain a suit for eviction
of the tenant without joining the other coowners if such other co-owners do not
object. In the contextual facts, not only
the
compromise
decree,
as
aforementioned,
has
declared
the
appellants to be the joint owners of the
suit premises, their status as such has not
been questioned at any stage by anyone
interested in the title thereto.

34. That a tenant during the
continuance of the tenancy is debarred on
the doctrine of estoppel from denying the
title of his landlord through whom he
claims tenancy, as is enshrined in Section
116 of the Indian Evidence Act, 1872, is
so well-settled a legal postulation that no
decision
need
be
cited
to
further
consolidate the same. This enunciation,
amongst others is reiterated by this Court
in S. Thangappan vs. P. Padmavathy
(1999)
7
SCC
474
and
Bhogadi
Kannababu
and
Ors.
vs.
Vuggina
Pydamma and others (2006) 5 SCC 532.
In any view of the matter, the appellants,
being the son of Bhola Nath, who at all
relevant time, was the landlord vis-à-vis
the
original
defendant
and
the
respondents in terms of Section 3(j) of the
Act, their status as landlords for the
purpose of eviction under the Act, could
not have been questioned so as to non suit
them for want of locus."

26. The judgment of this court in the
case of Achal Kumar Chaddha (supra) is
also relevant wherein this court dismissed
the writ petition of a tenant on the ground
that even if the partition is ignored, the
landlord being one of the co-owner can
file a release application. Paragraph 5 of
the
judgement
is
being
extracted
hereinbelow:-

"5. In any case, even if partition
is ignored, respondent is co-owner and
release application may be filed by a coowner also vide Gopal Das v. A.D.J.,
1997 (1) ARC 281 : 1987 All LJ 494 (FB).
Moreover, the Supreme Court in AIR
2004
SC
1321,
India
Umbrella
Manufacturing Co., M/s v. Bhagabandei
910 INDIAN LAW REPORTS ALLAHABAD SERIES
Agarwalla and AIR 2006 SC 1471,
Mohinder Prasad Jain v. Manohar Lal
Jain has held that even one of the
landlords can file eviction proceedings
against tenant and he need not show the
consent of the other landlords. No other
brother, sister or father of the respondent
ever raised any objection against the
partition."

27. In the case of Sajal Kumar
Jauhari (supra), this Court has held that
proceedings under Section 21(1)(a) of the
Act, 1972 are summary in nature and
question of title cannot be decided.
Paragraphs 33 and 34 of the judgement
are being extracted hereinbelow:-

"33.
To
deal
with
this
contention of the learned counsel for the
petitioner, it is note-worthy that there is
no basis for his submission that the
disputed accommodation exists over plot
no. 59-A/1 and 50-B and the said
property belonged to someone else. The
sale deed of the year 1933 cannot be
made basis to challenge the title of the
applicants/landlord.
Moreover,
the
disputed accommodation came in the
share of the applicants by a decree of the
Civil Court passed in a partition suit no.
203 of 2001 which was filed by the coowners. This fact is not disputed by the
petitioner. The rent control proceedings
are summary proceeding and the question
of title cannot be decided therein as it
requires
appreciation
of
oral
and
documentary evidences which is not
permissible in a summery proceeding.
Prima
facie,
title
to
the
disputed
accommodation can be seen by the Rent
Controller only with a view to look as to
whether the applicant is landlord of the
accommodation, release of which is
sought by him.

34. On the landlord-tenant
relationship, the written statement filed by
Shyam Das, the father of the petitioner in
the year 2007 becomes much more
relevant. In his written statement, he had
denied the landlord-tenant relationship
on the ground that the decree of partition
obtained by the applicants/landlord was a
collusive decree and they are not the
owners of the disputed accommodation.
The challenge was not on the ground that
Gopal Das Mishra or his heirs are
owners of the disputed accommodation
under tenancy as suggested by the
petitioners."

28. In view of the law propounded
by this court and apex court in the abovereferred cases, it is crystal clear that the
release application by the respondent as a
co-owner was maintainable and the tenant
cannot
raise
an
objection
to
the
maintainability of release application by
the respondent.

29.

Coming
to
another
submission
of
counsel
for
the
petitioner that a family settlement
unless registered under section 17 of
the Registration Act cannot be read in
evidence; the said issue, in the opinion
of the court, in the facts of the present
case is irrelevant and does not require
any consideration for the reason that it
is already held that the release
application by the respondent, even if
the family settlement is ignored, was
maintainable. Further, the judgments
relied upon by the counsel for the
petitioner in support of the aforesaid
submission are of no help to petitioner
since none of the judgements arises
out proceedings under Rent Control
Act and has been rendered in different
factual
circumstances.
6 All. Shant Deo Tripathi Vs. Deputy General Manager/Appellate Authority, State Bank of
 India, Kanpur & Ors. 911

30. Therefore, in the light of the
above discussion, it is held that there was
relationship
of
landlord
and
tenant
between the respondent and petitioner and
the release application by the respondent
was maintainable.

31. Accordingly, this Court does not
find any illegality in the orders impugned
in the writ petition. The writ petition lacks
merit and is, accordingly, dismissed with
no order as to costs.
----------
(2020)06ILR A911
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.03.2020

BEFORE
THE HON'BLE YASHWANT VARMA, J.

WRIT A No. 23578 of 2013

Shant Deo Tripathi ...Petitioner
Versus

Deputy
General
Manager/Appellate
Authority, State Bank of India, Kanpur &
Ors. ...Respondents

Counsel for the Petitioner:
Sri Nigamendra Shukla

Counsel for the Respondents:
Sri Satish Chaturvedi, S.C.

Service Law - identical charge being
tried in criminal trial as in disciplinary
proceedings - Indian Evidence Act, 1872:
Section 114 - The Court observed that a
judgment
of
acquittal
does
not
necessarily result in an identical charge
not
being
tried
in
departmental
proceedings. This is because the Courts
have
consistently
recognized
and
emphasized the distinct standard of
proof
which
apply
to
criminal
prosecutions
and
disciplinary
proceedings. In the former, the charge
must be proved beyond all reasonable
doubt, in disciplinary proceedings the
standard
which
applies
is
a
preponderance of probabilities. (Para 19)

The
petitioner
is
alleged
to
have
unauthorizedly
signed
a
Draft
thus
jeopardizing the interest of the Bank and was
tried
at criminal court as well as in
departmental proceeding. The Court noted
that in criminal trial best evidence was never
produced, documentary evidence available
with the respondents in support of the charge
was not introduced, material and crucial
witnesses were never examined and most of
the prosecution witnesses turned hostile. The
judgment of acquittal in that sense cannot be
viewed
as
being
one
exonerating
the
petitioner conclusively. It essentially came to
be handed down on account of failure on the
part of the prosecution to prove the charges
beyond reasonable doubt. This was not a
decision honorably acquitting the petitioner. To
the contrary, in the disciplinary proceedings
which were undertaken the respondents
produced voluminous material in support of
the charge and also examined material
witnesses on whose testimony the charges
were held to be proved. The petitioner not
only chose not to cross-examine those
witnesses, he failed to lead any oral evidence
in support of his innocence.
(Para 24)

Writ Petition Rejected. (E-10)

List of cases cited:-

1. G.M. Tank Vs. State of Gujarat (2006) 5
SCC 446 (distinguished)

2. Commissioner of Police, New Delhi and
Anr Vs. Mehar Singh (2013) 7 SCC 685

3. Deputy Inspector General of Police Vs. S.
Samuthiram (2013) 1 SCC 598

4.
Karnataka
Power
Transmission
Corporation
Limited
represented
by
Managing Director (Administration and HR)
Vs. C. Nagaraju and Anr. (2019) 10 SCC 367
(followed)