Court No. - 7 Case :- WRIT - A No. - 41659 of 2010 Petitioner :- Mohan Singh Respondent :- Additional District Judge/Special Judge Varanasi And Others Petitioner Counsel :- Santosh Kufmar Chaubey Respondent Counsel :- T.N.Tiwari Hon'ble Devendra Pratap Singh,J.
Heard learned counsel for the petitioner and the learned counsel for the
respondent caveator.
This petiiton is directed against an order affirming vacancy and releasing the
disputed accommodation in favour of the respondent-landlord.
The petitioner claiming to be a tenant of the disputed property had earlier
instituted a suit no. 1203 of 1997 against the contesting respondent with the
allegation that he was a tenant of the disputed premises since the time of
predecessor in interest of the respondents but they were forcibly evicting him.
However, the interim injunction application was rejected and in the meantime,
he filed an application for allotment dated 30.6.2001 which was registered as
Rent Case No. 61 of 2001.
Upon notice, the respondents came up with the case that they had purchased
the disputed property through a registered sale deed 16.1.1978 from the
erstwhile owner wherein they opened a guest house and the petitioner was
inducted as a care taker/licensee and was also given a room for that purpose.
Subsequently guest house had to be closed down after about three years
where-after the petitioner took possession of some room without knowledge
of the landlord and when he filed the injunction suit, they came to know that
he was claiming to be a tenant and as such after revoking his license, they
filed cross objection in the suit claiming his eviction. The petitioner set up a
case that he was a tenant since the time of the erstwhile owner and continued
to do so but admitted that he was inducted as a care taker in the disputed
accommodation but after closure of the guest house, he claimed that he
became a tenant. The landlord also filed his release application setting up his
need.
The Rent Controller found that neither the petitioner nor their children were
tenant of the disputed accommodation and they were holding it as an
unauthorized occupants and therefore after declaration of vacancy, the
premises was released in favour of the landlord. Consequential revision filed
by the petitioner and one of his daughter has also been rejected affirming the
finding in detail.
It is urged on behalf of the petitioner that since other co-owner Banwari Lal
Khandelwal had not singed the release application, it was not maintainable.
Apart from the fact that the courts below have recorded a finding that Banwari
Lal Khandelwal had entered appearance and supported the case of the
respondent, assuming that he was not a party, he never raised any objection
and release application filed by one co-landlord was maintainable. Even
otherwise, once the finding of fact that the petitioner was an usurper has been
recorded, the petitioner cannot raise this plea of alleged non-joinder.
Accordingly, the argument is rejected.
It is then urged that the petitioner was legal tenant and therefore the order of
vacancy is vitiated.
Both the courts below after considering all the evidence on record have
recorded categorical finding of fact that the petitioner was never a tenant of
the disputed premises but in fact was an usurper and unauthorized occupant
after his lease as a care taker was revoked. The findings of fact recorded by
the courts below have not been shown to be vitiated on any account.
No other point has been urged.
For the reasons above, this is not a fit case for interference under Article 226
of the Constitution of India. Rejected.
Order Date :- 20.7.2010
AU