SHEIKH JAMALUDDIN ANSARI Vs. XIITH ADDITIONAL DISTRICT JUDGE

JUDGEMENT

(1.) THE dispute in the instant petition pertains to a shop situate in Mohalla Bazar Bagh, Bnadurganj known as Bazarganj, Moradabad. The petitioner being landlord applied for release of the said shop (hereinafter referred to as 'premises in dispute') under Section 2(1)(a) of the U.P. Urdan Building ('premises in dispute') Regulation of (Letting, Rent and Eviction) Act, 1972 (in short the 'Act'). The petitioner claims himself to be the landlord and sole owner of the shop in question. It is not disputed that Burhan Uddin the own brother of the petitioner, was the co owner of the shop in question to the extent of half share. The petitioner, however, claimed himself to be the sole owner of the shop on the basis of an oral gift allegedly executed in his favour on 18.2.1979 by his brother, Burhan Uddin. The petitioner being a retired employee of Municipal Board as it then was wanted to venture upon a business in the shop in dispute, in brass wares in order to keep his pot boiling after his retirement form service.

(2.) THE release application was contested by the respondents-tenant inter alia on the ground that he purchased the half share of Burhan Uddin Ansri which he had in the shop in dispute, by mens of a registered sale-deed dated 12.4.88 and thus he acquired co-ownership of the shop to the extent of half share and accordingly, it was alleged that he was not liable to be evicted in proceedings under Section 21(1)(a) of the Act. It was also alleged by the respondent-tenant that the need of the petitioner was not bonafide one. In his rejoinder-affidavit, the petitioner-landlord called in question the genuineness of the sale deed dated 1 (sic) 4.88 on which credence was being placed by the respondent tenant. The prescribed Authority, on consideration of the facts and circumstances of the case, held that it was not possible to teaverse upon the question as to whether the respondent-tenant had become the co owner of the building with to weighing the validity of the sale deed, the genuineness of which was being disputed by him the landlord which question can be gone into in a properly constituted suit but the Prescribed Authority rejected the application for release by means of the order dated 29.4.89 on the ground that the petitioner's need was not genuine and bonafide. Upon this, the petitioner went in appeal impugning the aforesaid judgment and order of the prescribed Authority. In appeal, the learned Additional District Judge, came to the conclusion that the oral gift set up by the petitioner was not genuine and that the sale deed reliance on which was placed by the respondent tenant was genuine and valid Accordingly, the Appellate Authority held that the respondent tenant had become co owner of the premises in dispute to the extent of half share and as such the release application was not maintainable Having arrived at this conclusion, the Appellate Court played down the necessity to record any categorical finding as to the petitioner's need being bonafide and genuine, and consequently dismissed the appeal accordingly by means of the judgment and order dated 24.(sic)90.

(3.) THE question, however, that requires consideration by this Court is whether the tenancy stood determined by reason of the fact that the tenant acquired co ownership on the basis of a sale deed executed in his favour by one of the co owners of the premises in dispute, and whether the release application under Section 21(1)(a) of the Act, was not maintainable as held by the Appellate Court. It finds mention in the judgment of the Appellate Court that the release appease application was filed on 3.8.87 and the sale deed being relied upon by the respondent tenant was execute on 12.4.88. On the date, the release application was presented respondent-tenant has not acquired co-ownership rights in the premises in dispute. Subsequent acquisition of ownership right in the premises in dispute to the extent of half-share on the basis of sale-deed dated 12.4.88 executed in his favour by one of the oc-owners, would not affect the maintainability of the release application inasmuch as it did not result in extinction of the tenancy rights which takes place in the manner prescribed under Section 111 of the Transfer of Property Act. The question of determination of tenancy on expiration of a period of 30 days of an order under sub-section (1) or sub-section (1-A) or sub-section (2) of Section 21 of the Act as provided in sub-section (6) thereof does not arise at this stage. No other provision for determination of tenancy was brought to my notice by the learned Counsel for the parties.