GOVIND LAL Vs. IIND ADDL D J JHANSI

JUDGEMENT

(1.) S. U. Khan, J. Both these writ petitions have been filed by landlords. First writ petition was filed by Govind Lal and the second writ petition by Mohan Lal, Sohan Lal and Prakash Chandra, who are sons of Govind Lal, petitioner of the first writ petition. Govind Lal died during the pendency of the writ petition and has been substituted by his legal representatives, including his sons i. e. the three petitioners of the second writ petition, his wife and daughters. In the first writ petition, respondent No. 2 Sri Ram is the tenant of a shop. In the second writ petition respondent No. 2 Hukum Chand Jain (since deceased and survived by L. Rs) was also tenant of a shop. Both the shops are adjoining.

(2.) FIRST writ petition arises out of release application filed by petitioner Govind Lal, against tenant- respondent No. 2 Sri Ram under Section 21 of U. P. Act No. 13 of 1972 before the Prescribed Authority, Jhansi which was registered as case No. 62 of 1983. In the said release application Govind Lal stated that he was doing the business of selling Paan (betel leaves) from a wooden shop (KHOKHA), which was kept on the land of Sri Bhuvanendra and that the said KHOKHA was about two kilo meters away from his residence. It was stated in the release application that landlord had two grown up sons Mohan Lal and Sohan Lal and that he required the shop to settle them in business. It was further stated that landlord himself was finding it difficulty due to his old age to daily attend his shop which was two kilo meters away from the residence. Tenant filed written statement and stated that the Paan shop of landlord was quite famous so much so that the locality where the said shop was situate was popularly known by the name of Govind Chauraha. It was further stated by the tenant that another shop of the landlord which was in the tenancy occupation of one Nagaria had been vacated and landlord could use the same. There was some confusion regarding the first name of Nagara. Prescribed Authority Jhansi allowed the release application through judgment and order dated 18-7-1984. Against the said judgment and order tenant Sri Ram filed R. C. Appeal No. 36 of 1984. Appellate Court himself inspected the premises in dispute and the other premises said to be available to the landlord. Appellate Court through judgment and order dated 13-1-1986 allowed the appeal, set aside the judgment and order of the Prescribed Authority and rejected the release application of the landlord, hence the first writ petition. The tenant in his appeal had stated that Maithali Saran Nagaria was the tenant of another shop on behalf of the landlord and he had vacated the said shop. On the application of the tenant himself, Maithali Saran Nagaria was examined as Court witness by the Appellate Court. However, Maithali Saran Nagaria clearly stated that he was never tenant of Govind Lal in any shop. Landlord stated that the name of his other tenant was Chunnulal Nagaria, who had not vacated the shop in his tenancy occupation. Tenant did not file any affidavit of Chunnulal Nagaria. Tenant got examined wrong Nagaria who stated that he was never the tenant. In spite of all these things, Appellate Court held that Chunnulal Nagaria, the other tenant of the landlord had vacated the shop. Appellate Court stated that if the said shop had not been vacated then landlord should have filed the affidavit of Chunnu Lal Nagaria. This fact that another tenant of the landlord had vacated the shop was asserted by the tenant hence the burden to prove the said fact was upon him. Moreover, tenant himself requested for examination of Maithali Saran Nagaria, the alleged tenant of the landlord who had vacated. Sri Maithali Saran Nagaria appeared as a witness and denied the allegation of the tenant. Tenant did not make any further request for examination of correct Nagaria i. e. Chunnulal Nagaria. It is quite strange that in spite of it the Appellate Court held that the real tenant i. e. Chunnulal Nagaria had vacated the shop. The said finding is clearly erroneous in law.

(3.) IN respect of the shop, which was in tenancy occupation of Nagaria, Appellate Court observed that in the Commissioner's report it was mentioned that when ever the Commissioner inspected the premises the said shop was found closed and it contained some bags etc. and it appeared that the said shop was closed for a long period. If a tenant is keeping the tenanted shop closed for a long period and has also substantially removed his effects there from still landlord does not get right to take possession of the said shop unless tenant voluntarily hands over the possession to the landlord. Under Section 12 of the Act such shop may be deemed to be vacant and open to release/allotment. However, landlord has got no right to take possession of the said shop by himself. As such, the said shop cannot be said to be available to the landlord.