CHOTEY LAL Vs. KAMAL KISHORE

JUDGEMENT

(1.) THIS writ petition has been filed quashing the order dated 10.4.2009 (Annexure 11 to writ petition) and order dated 23.9.2009 (Annexure 14 to writ petition).

(2.) BRIEF facts arising out of writ petition are that respondent being landlord filed a suit which was numbered as P.A. Case No.4 of 2008 for release of the accommodation in dispute under Section 21(1)(a) of the Act No.13 of 1972. After receipt of notice, petitioner filed an objection stating therein that accommodation in dispute was initially in the form of an open piece of land let out to one Sri Allauddin and at this stage one Sri Dwarika Prasad was its owner. Sri Allauddin with the consent of Sri Dwarika Prasad sub-let the aforesaid accommodation to grandfather of petitioner namely Sri Munna Lal who had been paying rent to Sri Dwarika Prasad through Sri Allauddin @ Rs.12 per month. It has further been stated that Allauddin has collected rent from the predecessor of petitioner and he was not its real owner and rent was being collected on behalf of Dwarika Prasad. Sri Dwarika Prasad died leaving behind two daughters as his only heirs. It was stated that neither Sri Allauddin nor his successor including his son Gyasuddin were the owners of the accommodation in dispute nor they were entitled to execute any sale deed, therefore, sale deed dated 17.12.2004 through which respondent-landlord derives title is not legally and validly executed document and has not conferred any right and title on the respondent Sri Kamal Kishore. Further it was said that Sri Kamal Kishore was also gainfully engaged and did not need this disputed property for his house. It has also been denied by tenant- petitioner that he was not doing anything at the disputed place and he was running parchun shop from his house. In support of their pleadings, parties have filed their respective affidavits and brought on record various evidences. It has further been stated that when accommodation in dispute was let out, it was an open piece of land, therefore, the provision of Act No.13 of 1972 are not applicable to the accommodation in dispute. Further, respondent is not the owner of the accommodation in dispute, therefore, he is not entitled to get the property released in his favour. Petitioner has also brought on record the affidavits of Ramesh Chand Sharma dated 5.12.2008 and of Babu Lal Sharma dated 7.11.2008 who have supported the claim of petitioner. The entire accommodation in dispute is primarily an open piece of land. Apart whereof is covered by tin-shed supported on wooden pillars on two sides and only pakka construction is towards the front which is a wall to support a gate.

(3.) SRI K.K.Arora, learned counsel for petitioner has raised various points and arguments to this effect that if there is any doubt or an objection has been raised that respondent is not landlord and in view of present facts and circumstances, once the application was filed by one Mahesh Chand Singh, who alleged himself to be owner of the property, therefore, by virtue of the sale deed executed by Smt. Afzal Bibi in favour of respondents, no right can be conferred upon respondent-landlord. Further, depositing rent under Section 30 of the Act cannot be inferred that petitioner has admitted the relationship as well as the landlord and owner of the property and he is estopped to raise this point before the Court. He has placed reliance upon the following judgements of the Apex Court.