SANTOSH CHATURVEDI versus KAILASH CHANDRA & ANR. on 15 November 2019

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[2019] 17 S.C.R. 76

SUPREME COURT REPORTS

[2019] 17 S.C.R.

ASANTOSH CHATURVEDI

v.

KAILASH CHANDRA & ANR.

(Civil Appeal No. 6572 of 2010)

BNOVEMBER 15, 2019

[R. BANUMATHI, A. S. BOPANNA ANDHRISHIKESH ROY, JJ.]

U.P. Urban Buildings (Regulation of Letting, Rent andCEviction) Act, 1972 – s.2(1)(a) – Eviction – Appellant initiated thepetition u/s.2(1)(a) against the predecessor of the respondentsseeking release of the suit property/premises – The prescribedauthority dismissed the petition and held that appellant cannotclaim ownership right over the coparcenary property and he wasnot the landlord of the respondents and also held that his bonafideDrequirement did not exist – The Appellate Authority onre-appreciating the entire aspect of the matter arrived at conclusionthat the appellant had lawfully become the owner of the propertyand respondents were tenant under the appellant and held thatcase for release of property was made out – Thereafter, respondentEfiled writ petition before the High Court – High Court took thesimilar view as arrived at by the prescribed authority and reversedthe judgment passed by the Appellate Court – On appeal, held:The proceedings under the Rent Act is of summary nature whereinthe jural relationship of landlord and tenant is to be taken note tothe extent it is required for considering such eviction petition andFthe rigour of examining the ownership ought not to be indulgedin the manner as done in a title suit unless the respondent sets uptitle to the very rented property which is adverse to that of thelandlord – In the instant case, the consideration made by theprescribed authority was in the nature of the title being examinedGin the suit for partition or for seeking declaration of title – Thedetailed examination with regard to the nature of the right to theproperty was made, which was wholly unnecessary in a summaryproceeding when tenant had not set up title to the premises inquestion – Father of the appellant admittedly was the owner ofthe property and he had made a settlement in favour of hisH

son-appellant, the title thus acquired and cannot called in question– Further, predecessor of the respondents earlier, had initiated aproceeding before the Rent Control and Eviction officer and soughtalternate premises, that showed that respondents did not have anyissue with regard to the ownership – Insofar as a bonafiderequirement is concerned, there was no material available onrecord to indicate that the appellant had any other alternatepremises, the bonafide need of the appellant as claimed, accepted– Therefore, the Judgment passed by the prescribed authority andthe High Court set aside – Consequently, the Judgment passed bythe Appellate Authority restored.

Allowing the appeal, the Court

HELD : 1. Though such detailed examination with regardto the nature of the right to the property has been made in thepresent case, this Court is of the opinion that the same waswholly unnecessary in a summary proceeding of the presentnature when the tenant had not set up title to the premises inquestion. Irrespective of the fact as to whether the propertywas the coparcenary property or had become the absoluteproperty of father of the appellant, the fact remains that a familysettlement dated 15.11.1999 was entered into, to which fatherof the appellant, who was the owner was himself a party and hadgiven a portion of his property to his son-appellant. Pursuantto such oral family settlement dated 15.11.1999 a Memorandumdated 02.02.2000 was also drawn up. Subsequent thereto theappellant had also filed an Original Suit No.220/2001 seeking thatthe family settlement be declared as valid. The said suit wasdisposed of on 19.04.2001 based on the compromise. [Para 14][85-G-H; 86-A]

2. Whether the share given by father of the appellant tohis son who is appellant is justified or as to whether the natureof the document under which the settlement was recorded wasas per requirement of law and valid are all issues which can onlybe raised by any other member of the family who would feeldeprived and could have claimed right over the such property.But in a circumstance where father of appellant who admittedlywas the owner of the property had made a settlement in favourof the appellant who is his son, the title thus acquired, in any AB

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Aevent, cannot be called in question by the person who is inoccupation of the premises as a tenant when father of appellantwho admittedly was his landlord did not continue to claim to bethe landlord. If that be the position as rightly noticed by theAppellate Authority, in view of the provision as contained inSection 8 and Section 109 of Transfer of Property Act, on transferBof the property by the owner the tenant would automaticallybecome the tenant of the transferee. [Para 15] [86-B-E]

3. The aspect which is also necessary to be taken note isthat the predecessor of the respondents had initiated aproceeding in Suit No.113/2011 before the Rent Control andCEviction Officer wherein he had sought for allotment of alternatepremises by indicating that the case bearing No.6/2010 had beeninitiated by the appellant herein against him. This would indicatethat at the first instance, the predecessor of the respondents didnot have any issue with regard to the ownership and was makingDan attempt to secure an alternate premises but has onlythereafter raised the contention despite the relationship beingindisputable. Therefore, taking into consideration all theseaspects this Court is of the opinion that the view expressed bythe Appellate Court is appropriate in the present facts andcircumstance. [Para 16] [86-G-H; 87-A-B]E

4. From the evidence as tendered, the appellant hadcontended that he is doing wholesale business of cloth for whichhe does not have premises due to which he, his wife and twochildren are experiencing hardship. In a circumstance wherethere is no material available on record to indicate that theFappellant has any other alternate premises, the bonafide needof the appellant as claimed will have to be accepted and eventhough the respondents would face some hardship, as comparedto the same the hardship to be faced by the appellant would begreater if the premises is not released to the appellant. [ParaG17] [87-C-D]

Shalini Shyam Shetty & Anr. v. Rajendra Shankar Patil(2010) 8 SCC 329 : [2010] 8 SCR 836 – referred to.

Case Law Reference

H[2010] 8 SCR 836

referred to

Para 8

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6572of 2010.

From the Judgment and Order dated 28.11.2007 of the HighCourt of Judicature at Allahabad in Civil Misc. Writ Petition No. 54204of 2007.

Rajiv Dutta, Sr. Adv., Vikas Singh Jangra, Amit Kumar Pathak,B. Vardhman Singh, Advs. for the Appellant.

Ms. Purnima Bhat, Adv. for the Respondents.

The Judgment of the Court was delivered by

A. S. BOPANNA, J.

1. The appellant is before this Court assailing the order dated28.11.2007 passed by the High Court of Judicature at Allahabad in CivilMisc. Writ Petition No.54204/2007. Through the said order the HighCourt has allowed the Writ Petition filed by the respondents herein andhas set aside the judgment and order dated 09.10.2007 passed by theSpecial Judge, Mathura in P.A. Appeal No.1/2002 whereby the orderdated 03.08.2001 passed by the Prescribed Authority/ Upper Civil Judge(C.D.) is upheld. The appellant is, therefore, aggrieved and is beforethis Court.

2. The appellant herein instituted the petition under Section21(1)(a) of U.P. Urban Buildings (Regulation of Letting, Rent andEviction) Act, 1972 (hereinafter referred to as the “Rent Act” for short)against the predecessor of the respondents herein seeking release ofthe premises bearing No.83/72A, Tiwari Gali, Chhatta Bazar, Mathura.The suit was registered as petition No.6/2000 before the PrescribedAuthority. The Prescribed Authority having taken into consideration therival contentions, on holding that the appellant herein cannot claimownership right over the coparcenary property and in that light onarriving at the conclusion that the appellant is not the landlord of therespondents and also holding that the bonafide requirement does notexist, had dismissed the petition declining the release of the shop/premises in question.

3. The appellant claiming to be aggrieved by the same had filedthe appeal in P.A. Appeal No.1/2002 before the Appellate Authority,namely, the Special Judge, Mathura. The learned Appellate Judge onreappreciating the entire aspect of the matter had arrived at the A

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Aconclusion that the appellant herein had lawfully become the owner ofthe property and in that circumstance considering the predecessor ofthe respondents herein to be the tenant under the appellant had furtherexamined the matter with regard to the bonafide requirement.Accordingly, the learned Appellate Judge had arrived at the conclusionthat the case for release of the property is made out and had accordinglyBallowed the appeal. While so considering the matter, the learnedAppellate Judge had also taken into consideration that an alternativeshop bearing No.83/9-C situated at Chhatta Bazar, Mathura measuring2.5 ft. x 26 ft. standing in the name of the father of the appellant whichwas vacant be allotted in favour of the respondents so as to mitigateCthe hardship, if any. In that view, the respondents were directed to vacatethe premises in question by taking possession of the said alternativeshop No.83/9-C within one month.

4. The respondents herein claiming to be aggrieved by the saidorder dated 09.10.2007 had filed the writ petition under Article 227 ofDthe Constitution of India before the High Court of Judicature atAllahabad in C.M.W.P. No.54204/2007. The learned Single Judge hasin fact considered the matter in great detail, more particularly withregard to the claim of ownership made by the appellant herein andkeeping in view the provisions contained in the Hindu Succession Act,1956 has arrived at the conclusion that the appellant cannot be consideredEas a coparcener in respect of the premises in question. Hence thelearned Single Judge has also taken a similar view as arrived at by thePrescribed Authority/learned Upper Civil Judge and in that light hasreversed the judgment passed by the Appellate Court. The appellant,therefore, claiming to be aggrieved is before this Court in this appeal.F5. We have heard Mr. Rajiv Dutta, learned senior advocate alongwith Mr. Vikas Singh Jangra, learned advocate on behalf of the appellant,Ms. Purnima Bhat, learned advocate on behalf of the respondents andperused the appeal papers.

6. The learned senior advocate for the appellant would contendGthat the authorities prescribed under the Rent Act in issue had consideredthe matter and though divergent opinions were expressed, the AppellateCourt had in fact appreciated the matter in its correct perspective sincein a summary proceedings of the present nature the relationship oflandlord and tenant was sufficient to be established which in fact hadHbeen established and it ought not to have been considered like a title

suit. The Prescribed Authority has examined the ownership of theproperty as if being considered in a partition suit or title suit so as toarrive at its conclusion. It is no doubt true that the father of the appellanthad earlier filed an eviction suit against the predecessor of therespondents and had failed in the proceedings arising thereunder.However, in a family settlement the property in question had fallen tothe share of the appellant herein and in that circumstance the need forthe premises was a fresh cause of action and in a circumstance whereat the first instance there was no dispute to the fact that the father ofthe appellant, namely, Shri Dwarka Prasad Chaturvedi was the owner,there could not have been dispute to the fact that the appellant, who ishis son had acquired ownership over the property in the familysettlement. In that regard, it is contended by the learned senior advocatethat when the learned Appellate Judge which is a statutory authorityunder the Act had arrived at the conclusion based on reappreciation ofthe matter, the consideration as made by the High Court in a writ petitionunder Article 227 of the Constitution, as if it was in the nature of anappeal by reappreciating the entire aspect is not justified. Hence, hecontends that the ownership as well as the bonafide requirement beingestablished, the appellant is entitled to succeed and secure release ofthe suit schedule premises.

7. The learned advocate for the respondents, on the other hand,would contend that the undisputed position is that Shri Dwarka Prasad,the father of the appellant had filed the petition under Section 21(1)(a)of the Rent Act for release of the shop but the suit was dismissed bythe Prescribed Authority through the judgment dated 07.12.1979. Theappeal against the same was dismissed and the writ petition was alsodismissed on 29.10.1999. The father of the appellant having failed tosucceed had thereafter instituted a fresh proceeding through theappellant who is his son, on 10.02.2000 by creating certain rights infavour of the appellant under an alleged settlement dated 15.11.1999.The Memorandum of Settlement dated 02.02.2000 was created for thesaid purpose. It is her contention that the father of the appellant hadsecured his share in the property prior to the birth of the appellant andas such the property cannot be considered as a coparcenary propertywhereunder the appellant can claim any right as a coparcener andsecure a share. It is her contention that the Prescribed Authority asalso the High Court has considered this aspect and has arrived at theconclusion in accordance with law which does not call for interference.

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AIt is further contended that the alternate shop indicated by the learnedAppellate Judge is not suitable for business purpose and, therefore, evenin that regard, apart from the bonafide of the appellant not beingestablished the respondents would be exposed to greater hardship ifthe premises is ordered to be released. Hence it is contended that theorder impugned does not call for interference.B

8. In the background of the rival contentions, at the outset, aperusal of the judgment in the case of Shalini Shyam Shetty & Anr.vs. Rajendra Shankar Patil (2010) 8 SCC 329 relied upon by thelearned senior advocate for the appellant would be in order. This caserefers to the scope of consideration that could be made by the HighCCourt in a writ petition of the present nature. However, keeping inview the fact that the High Court in the instant case while examiningthe matter had two views before it, one taken by the PrescribedAuthority and the other by the Appellate Authority which were divergent,one of the views was required to be accepted by examining the matterDin that regard. Therefore, in the instant facts if that aspect of the matteris taken note, since the Prescribed Authority while examining the claimof the appellant herein had adverted to the manner in which the claimof ownership was made to the property and had held that the appellantcannot be considered as a coparcener to be accepted as the landlord,the High Court has also made a consideration in that regard to acceptEsuch view. Hence in the present circumstance instead of examiningthe extent of jurisdiction, what is required to be noticed by this Court isas to whether the nature of consideration as made by the PrescribedAuthority as also the High Court is justified as against the conclusionreached by the Appellate Authority and which among the divergentopinions is to be accepted.F

9. In order to examine that aspect of the matter a perusal of thepapers would indicate that at the first instance the father of the appellantShri Dwarka Prasad had become the owner of the property under apartition deed dated 09.07.1959. In that capacity, the predecessor ofthe respondents was the tenant under him and the said Shri DwarkaGPrasad instituted an eviction petition against the predecessor of therespondents on 10.03.1979. In the said proceedings there was no disputewhatsoever with regard to the ownership of the property or the juralrelationship of landlord and tenant between the father of the appellantand the predecessor of the respondents. It is no doubt true that theHfather of the appellant had failed in the said proceedings and presently the Petition bearing No.6/2000 was instituted by the appellant, who ishis son, claiming to be the owner of the property. The entire case asput forth by the respondents to oppose the eviction suit is with regardto the status of the property by contending that the joint family propertyhad lost its character when the partition had taken place between thefather of the appellant and the other members of the Hindu undividedfamily on 09.07.1959. It is, therefore, contended that the appellant beingborn in the year 1977 cannot be considered as a coparcener. In thatlight it is contended that in a circumstance where the appellant wasnot a coparcener, he could not have taken a share in the property inthe alleged family settlement dated 15.11.1999 to claim as the ownerof the property. Such contention as urged by the respondents hereinhas been accepted by the Prescribed Authority as well as the learnedSingle Judge in the High Court.

10. While referring to the said contentions it is necessary toemphasise that the proceedings under the Rent Act is of summary naturewherein the jural relationship of landlord and tenant is to be taken noteto the extent it is required for considering such eviction petition andthe rigour of examining the ownership ought not to be indulged in themanner as done in a title suit unless the respondent sets up title to thevery rented property which is adverse to that of the landlord. ThePrescribed Authority at the initiation of the proceedings appears to havebeen mindful of the same and the said aspect would be clear if thevery nature of the issues that were framed for consideration by thePrescribed Authority is taken note of, which read as hereunder:

1. Whether the petitioner is having a just, dire and bonafideneed of the disputed shop for running his business?

2. Whether the difficulties arising to the petitioner is morecompared to the difficulties arising to the respondent ifthe disputed shop is being released to the respondent.

However, the consideration has extended beyond the same andtherefore the question is as to whether it is justified in the instant facts.

11. It is to be noticed that the ownership of the property wasnot raised by the Prescribed Authority as an issue for consideration butappropriately the issues that were required under the Rent Act had beenframed. Though that was the position the requirement of proof notedand the finding recorded by the Prescribed Authority with regard tothe nature and status of the property reads as hereunder:

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A“In the present case, the petitioner had to prove that the disputedproperty was a coparcenary property of the Joint Hindu Family.In this context, the petitioner had not presented any record inwhich the disputed property has been shown to be a coparcenaryproperty. The petitioner’s father himself had filed the petitionagainst the respondent in the year 1979 for the release of theBdisputed shop, in that also, he had declared himself to be ownerand landlord of the disputed property and he has not given anysuch statement that he himself in the capacity of the Karta ofthe family was the owner of the coparcenary property of theHindu Joint Family, is the owner and the landlord. Apart fromCthis, the perusal of the paper No.33g/22 (Colly) (Lagayat) 26,which is filed on behalf of the respondent and is a copy of theAssessment of Municipal Corporation, that the disputed propertywas registered in the name of Dwarka Prasad as the owner andin this, Shyam Bihari has been shown as a tenant in one shopand in the above record, there is no such mention that DwarkaDPrasad had been the owner of the disputed property, in thecapacity of Karta of the family. Besides this, the electricity billpaper No.33g/27 is in the name of Dwarka Prasad. After goingthrough all the circumstance, I am of the opinion that thepetitioner has failed to prove that the aforesaid disputed shop toEbe a coparcenary property of the Joint Hindu Family.”

12. The very consideration made by the Prescribed Authority asnoticed above is in the nature of the title being examined in a suit forpartition or for seeking declaration of title. In fact the PrescribedAuthority apart from the above conclusion has gone to the extent ofFindicating as if the family settlement dated 15.11.1999 was not anequitable partition and that the right claimed under the same cannot beaccepted as in the earlier round of litigation when Shri Dwarka Prasadinstituted the suit for eviction he had not referred to the property as acoparcenary property but had claimed absolute right over the same.

G13. As against such conclusion, the learned Appellate Judge hastaken note that Shri Dwarka Prasad, the father of the appellant hadreceived the property under a registered partition dated 09.07.1959 andin that light has kept in view the legal position that a share received inthe coparcenary property would remain to be so for three generations.Having observed so the learned Appellate Judge has concluded in theHfollowing manner:

“On the basis of the above discussions, it is very much clear andevident that the shop in question was a coparcenary property inthe hands of Dwarka Prasad and the applicant SantoshChaturvedi being his son has got a right, interest and share inthe said coparcenary property. Evidence available on the recordreveals that again family settlement occurred in between DwarkaPrasad, his sons and mother on 15.11.1999 and due to this familysettlement, family claims and dispute arose and due to that causethere was repartition of the said property on 09.04.1997 betweenSantosh Chaturvedi and his mother, father and brother which waswritten memorandum on 02.02.2000. The written memorandumwas also filed on the records and one original suit No.220/01Santosh Chaturvedi vs. Dwarka Prasad and Others was filed incontext with the partition of the property which was decided on19.04.2001 on the basis of the compromise.

It is the argument of the learned counsel for Shyam Bihari thatall the averments are concocted and have been framed just togive colours to the matter, I am not satisfied with this argument.Because, the evidence has been filed on record that oral partitionoccurred on 15.11.1999 amongst Dwarka Prasad and his sonsVijay and Santosh Chaturvedi and his mother which was reducedin writing by a memorandum of family settlement dated02.02.2000 which was confirmed by the decree of the originalsuit No.220/01. It is well settled law on this point that the partitioncan be oral and even written amongst the members of Hindufamilies. The Hindu Law is very much clear that if onecoparcener expresses his desire for the partition then legally thepartition/severance of the coparcenary property takes its effectfrom the same day i.e. from the day, coparcener had expressedhis desire for the partition.”

14. Though such detailed examination with regard to the natureof the right to the property has been made in the present case, we areof the opinion that the same was wholly unnecessary in a summaryproceeding of the present nature when the tenant had not set up titleto the premises in question. Irrespective of the fact as to whether theproperty was the coparcenary property or had become the absoluteproperty of Shri Dwarka Prasad, the fact remains that a familysettlement dated 15.11.1999 was entered into, to which Shri DwarkaPrasad who was the owner was himself a party and had given a portion AB

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Aof his property to his son. Pursuant to such oral family settlement dated15.11.1999 a Memorandum dated 02.02.2000 was also drawn up.Subsequent thereto the appellant had also filed an Original Suit No.220/2001 seeking that the family settlement be declared as valid. The saidsuit was disposed of on 19.04.2001 based on the compromise.

B15. Whether the share given by Shri Dwarka Prasad to theappellant who is his son is justified or as to whether the nature of thedocument under which the settlement was recorded was as perrequirement of law and valid are all issues which can only be raisedby any other member of the family who would feel deprived and couldhave claimed right over the such property. But in a circumstance whereCShri Dwarka Prasad who admittedly was the owner of the propertyhad made a settlement in favour of the appellant who is his son, thetitle thus acquired, in any event, cannot be called in question by theperson who is in occupation of the premises as a tenant when ShriDwarka Prasad who admittedly was his landlord did not continue toDclaim to be the landlord. If that be the position as rightly noticed bythe Appellate Authority, in view of the provision as contained in Section8 and Section 109 of Transfer of Property Act, on transfer of theproperty by the owner the tenant would automatically become the tenantof the transferee. The further observation of the Appellate Authoritycontained in its order to notice the relationship of landlord and tenant is Eas hereunder; “………………Even if, Shyam Bihari Lal has denied himselfto be the tenant of the applicant, but here it is more importantthat another suit was pending amongst the parties for the evictionof tenant Shyam Bihari Lal where Shyam Bihari Lal hadFaccepted himself to be the tenant of Santosh Chaturvedi and haddeposited the rent on the first date of hearing of the suit andhas also requested for extending the benefit of Section 20(4) ofAct No.13 of 72, to him in that case.”

It will indicate that the respondents at this juncture cannot disputeGthe ownership of the appellant over the property or the jural relationship.

16. The aspect which is also necessary to be taken note is thatthe predecessor of the respondents late Shyam Bihari had initiated aproceeding in Suit No.113/2011 (Annexure R-12) before the RentControl and Eviction Officer, Mathura wherein he had sought forHallotment of alternate premises by indicating that the case bearing No.6/

2010 had been initiated by the appellant herein against him. This wouldindicate that at the first instance, the predecessor of the respondentsdid not have any issue with regard to the ownership and was makingan attempt to secure an alternate premises but has only thereafter raisedthe contention despite the relationship being indisputable. Therefore,taking into consideration all these aspects we are of the opinion thatthe view expressed by the Appellate Court is appropriate in the presentfacts and circumstance.

17. Having arrived at the above conclusion we have taken intoconsideration the nature of the claim made by the appellant for releaseof the property. From the evidence as tendered, the appellant hadcontended that he is doing wholesale business of cloth for which hedoes not have premises due to which he, his wife and two children areexperiencing hardship. In a circumstance where there is no materialavailable on record to indicate that the appellant has any other alternatepremises, the bonafide need of the appellant as claimed will have to beaccepted and even though the respondents would face some hardship,as compared to the same the hardship to be faced by the appellantwould be greater if the premises is not released to the appellant. Thoughat this juncture the learned counsel for the respondents would submitthat the alternate premises bearing No.83/9-C Chhatta Bazar, Mathuraordered to be made available to the respondents is not suitable, it is infact an order made by the Appellate Court only in order to minimizethe hardship. In that circumstance, if the said premises is not suitable,it is open to the respondents to not opt for the same. However, whenthe appellant has established that he is the owner of the property andthe same is required for his bonafide occupation, the release of thepremises in any event, is required to be made.

18. In that view, for all the reasons stated above we are of theopinion that the Prescribed Authority as well as the learned Single Judgeof the High Court were not justified in their conclusion. Accordingly,the judgment dated 03.08.2001 passed in Petition No. 6/2000 and thejudgment dated 28.11.2007 passed in C.M.W.P. No.54204/2007 are setaside. Consequently, the judgment dated 09.10.2007 passed in P.A.Appeal No.1/2002 is restored. The respondents are granted threemonths’ time to vacate and handover the vacant possession of thepetition subject premises bearing No.83/72-A situate in Tiwari Gali,Chhatta Bazar, Mathura to the appellant subject to an undertaking beingfiled before this Court within a period of three weeks. It is made clear AB

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88SUPREME COURT REPORTS

Athat if such undertaking is not filed the benefit of the time granted tovacate will not be available to the respondents. Further, the release ofthe premises in question shall be made irrespective of opting for thealternate premises as ordered by the Appellate Court.

19. The appeal is allowed accordingly. There shall be no orderBas to costs. All pending applications shall stand disposed of.

Ankit Gyan

Appeal allowed.

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