RAMJI JAISWAL Vs. ADDITIONAL DISTRICT JUDGE AND ANOTHER

JUDGEMENT

(1.) THIS writ petition arises out of eviction/release proceeding initiated by the landlord -petitioner against respondent No. 2 tenant in the form of P.A. Case No. 9/88 under section 21 of U.P. Act No. 13/72 on the ground of bona fide need. Property in dispute is a shop. Prescribed Authority/Civil Judge, Gorakhpur on 30.9.1991 allowed the release application. Tenant was directed to vacate the shop within a month and landlord as directed to pay two years rent as compensation to the tenant. The tenant respondent No. 2 filed an appeal against the said judgment and order being Misc. Appeal No. 384/91, VII A.D.J., Gorakhpur through judgment and order dated 16.4.1992 allowed the appeal, set aside the order of the prescribed authority dated 30.9.1991 and rejected the release application of landlord petitioner. Landlord -petitioner has filed this writ petition against the order of Appellate Court dated 16.4.1992. Accommodation in dispute is being used as a shop. Even though it was let out for being used as shop, however, it is part of the residential house in which landlord is residing alongwith his family including his mother and sister and her family. The house of which accommodation in dispute is a part (hereinafter referred to as house in question) belonged to Ram Chandra Jaiswal husband of petitioner's mother's sister who was issueless and bequeathed the house in question to petitioner and his sister Smt. Poonam. Thereafter, Ram Chandra Jaiswal died and petitioner and his sister Smt. Poonam divided the house among themselves and the room/shop in dispute fell in the share of the petitioner. The release was sought for residential purpose. It was also stated in the release application that in the portion of Smt. Poonam, her sister Smt. Savitri Devi was residing alongwith her husband and children. Tenant respondent denied the partition. However, he admitted that he was paying rent to landlord petitioner. Prescribed Authority allowed the release application holding the need of the landlord to be bona fide. Question of hardship was also decided in favour of the landlord. The Appellate Court after a very detailed discussion held that in fact no partition had taken place in between petitioner and his sister Smt. Poonam. It was also pleaded by landlord that at distance of about half kilometer from the accommodation in dispute petitioner was having three stories house. Commissioner had been appointed by the prescribed authority to inspect the house in question. Commissioner reported that Smt. Savitri Devi was infact residing in the said house alongwith her husband and children. Supreme Court in S.S.S. Choudhari v. G.A. Bukate : AIR 1997 SC 998 has held that validity of partition among co -landlords cannot be questioned by tenant except when it is shown that partition is sham and brought into existence only to create a ground of eviction of tenant. In the instant case tenant did not deny that petitioner and his sister Smt. Poonam had equal share in the house in question. Even if actually partition by metes and bounds is not proved still the position remains that petitioner has got only half share in the house in question. Even if his sister Smt. Poonam has permitted the petitioner to use her share also, petitioner can not said to have a right over the share of Smt. Poonam. By maximum he can be considered to be a licencee thereof. Availability of accommodation as licencee is not to be taken into consideration while determining bona fide need of the landlord vide M.E. Kshirsagar v. M/s. Traders and Agencies : AIR 1997 SC 59, Para 19. It has been held by Full Bench of this Court reported in, 1987 (1) ARC 281 that one of the co -landlords alone can file release application even without impleading the other co -landlords as proforma respondents. Supreme Court in various judgments has held that one of the co -landlords alone, even without impleading other co -landlords as respondents, can file suit for eviction against tenant. Six such authorities of Supreme Court have been mentioned by me in my judgment G.C. Verma v. B.N. Mishra, 2004 (2) ARC 462.

(2.) ACCORDINGLY , the view of the Lower Appellate Court with regard to right of landlord to use the entire house in question is erroneous in law and the same is set aside. The prescribed authority had held that in view of the number of family members of landlord and the availability of accommodation in the house in question to him (i.e. half of the house in question) the need of the landlord was quite bona fide for additional room. In fact Appellate Court did not disagree with the said findings. The Appellate Court held the need of the landlord to be not bona fide only on the ground that the entire house in question was available to the landlord. This aspect was also almost the entire basis of finding of Lower Appellate Court in respect of comparative hardship. As I have held in the earlier part of this judgment that only half of the house in question can be said to be available to the landlord, hence the view of the Lower Appellate Court on both these points deserves to be set aside. It had also come in evidence that the tenant was using ground floor of his three stories building in connection with the same business which he carried out from the shop in dispute i.e. laundry (washing of clothes). Lower Appellate Court also held that house of the tenant is situated in a Gali while shop in dispute is situated on the road. It is correct that shifting of the business may cause some inconvenience to the tenant. However, it cannot be a ground for holding that tenant would suffer greater hardship in comparison to landlord. There is one more aspect of the matter. Tenant did not show that what efforts he made to search alternative accommodation after filing of the release application. This by itself is sufficient to decide the question of comparative hardship against the tenant vide B.C. Bhutada v. G.R. Mundada : AIR 2003 SC 2713. Accordingly, writ petition is allowed, judgment and order passed by Lower Appellate Court being erroneous in law is set aside and judgment and order passed by the Trial Court is restored. Tenant is granted six months time to vacate provided that within one month from today he files an undertaking before the prescribed authority to the effect that on or before 19.10.2005 he will willingly, vacate and handover possession of the property in dispute to the landlord petitioner.