RAM SUMER Vs. KRISHNA @ SRI KISHAN 5 OTHERS

JUDGEMENT

(1.) Heard learned counsel for the petitioner and learned counsel for the respondent-landlord. By order dated 17.1.2019, service of summons upon respondent no.2 was dispensed with, as counsel for the parties agreed that in the instant petition, the contest is not with respondent no.2 but only with respondent no.1.

(2.) The brief facts are that Shri Krishna (since deceased) filed an application under Section 21 (1) (a) of U.P. Act No.13 of 1972 against Ram Naresh seeking release of a house alleged to be in his tenancy. The release application was allowed on basis of a compromise dated 18.12.2012. In the compromise, respondent no.2 admitted the need of Shri Krishna, the landlord (deceased) as pressing and bonafide and agreed to vacate the premises within 15 days from the date of compromise. The Prescribed Authority passed an order deciding the release application in terms of the compromise on the same date. The landlord filed an application under Section 23 for execution of the release order asserting that respondent no.2, despite having agreed to vacate the demised premises within 15 days under the compromise, had failed to vacate the same, therefore, possession be delivered to him through police force by executing the release order. It seems that in the said proceedings, writ of possession was issued for being executed with the aid of police force.

(3.) The specific case of the petitioner, who is real brother of Ram Naresh, is that in fact it is he, who is in possession of the demised premises and that his brother had not been in possession of the same. He had built his own house at Rae Bareilly and is residing there alongwith his family. It was also his specific case that initially his father Late Bulaki was tenant. The original owner of the premises Birju died issue-less. He executed a Will in favour of his father but since it was an unregistered Will, therefore, the Municipal authorities declined to mutate his name on basis of the said Will. He also pleaded that Gauri Shanker Verma, who has allegedly sold the disputed premises to the landlord, was not heir of Late Birju nor had any right to sell the property. The petitioner was also not served with any notice regarding purchase of the disputed house by the respondent-landlord. The petitioner is on enimical terms with his brother. His brother colluded with the landlord and entered into a compromise with him. Accordingly, he applied for recall of the release order dated 18.12.2012. The application filed by the petitioner purporting to be under Order 9 Rule 13 read with Section 151 CPC has been rejected by impugned order dated 10.2.2014 on the ground that a person not party to the proceedings cannot maintain such an application. It was followed by orders 31.10.2013 and 15.2.2014 issuing writ of possession and for delivery of possession to the landlord by breaking open the locks of the premises.