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Santosh Chaturvedi vs Kailash Chandra on 15 November, 2019

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 6572 OF 2010

Santosh Chaturvedi .… Appellant(s)

Versus

Kailash Chandra Anr. ….Respondent(s)

JUDGMENT

A.S. Bopanna,J.

1. The appellant is before this Court assailing the order

dated 28.11.2007 passed by the High Court of Judicature

at Allahabad in Civil Misc. Writ Petition No.54204/2007.

Through the said order the High Court has allowed the Writ

Petition filed by the respondents herein and has set aside

the judgment and order dated 09.10.2007 passed by the

Special Judge, Mathura in P.A. Appeal No.1/2002 whereby

the order dated 03.08.2001 passed by the Prescribed
Signature Not Verified

Digitally signed by
MAHABIR SINGH
Date: 2019.11.15
16:28:24 IST
Reason:

Page 1 of 20
Authority/ Upper Civil Judge (C.D.) is upheld. The

appellant is, therefore, aggrieved and is before this Court.

2. The appellant herein instituted the petition under

Section 21(1)(a) of U.P. Urban Buildings (Regulation of

Letting, Rent and SectionEviction) Act, 1972 (hereinafter referred

to as the “SectionRent Act” for short) against the predecessor of the

respondents herein seeking release of the premises bearing

No.83/72A, Tiwari Gali, Chhatta Bazar, Mathura. The suit

was registered as petition No.6/2000 before the Prescribed

Authority. The Prescribed Authority having taken into

consideration the rival contentions, on holding that the

appellant herein cannot claim ownership right over the

coparcenary property and in that light on arriving at the

conclusion that the appellant is not the landlord of the

respondents and also holding that the bonafide

requirement does not exist, had dismissed the petition

declining the release of the shop/premises in question.

3. The appellant claiming to be aggrieved by the same

had filed the appeal in P.A. Appeal No.1/2002 before the

Appellate Authority, namely, the Special Judge, Mathura.

The learned Appellate Judge on reappreciating the entire

Page 2 of 20
aspect of the matter had arrived at the conclusion that the

appellant herein had lawfully become the owner of the

property and in that circumstance considering the

predecessor of the respondents herein to be the tenant

under the appellant had further examined the matter with

regard to the bonafide requirement. Accordingly, the

learned Appellate Judge had arrived at the conclusion that

the case for release of the property is made out and had

accordingly allowed the appeal. While so considering the

matter, the learned Appellate Judge had also taken into

consideration that an alternative shop bearing No.83/9­C

situated at Chhatta Bazar, Mathura measuring 2.5 ft. x 26

ft. standing in the name of the father of the appellant

which was vacant be allotted in favour of the respondents

so as to mitigate the hardship, if any. In that view, the

respondents were directed to vacate the premises in

question by taking possession of the said alternative shop

No.83/9­C within one month.

4. The respondents herein claiming to be aggrieved by

the said order dated 09.10.2007 had filed the writ petition

under SectionArticle 227 of the Constitution of India before the

Page 3 of 20
High Court of Judicature at Allahabad in C.M.W.P.

No.54204/2007. The learned Single Judge has in fact

considered the matter in great detail, more particularly with

regard to the claim of ownership made by the appellant

herein and keeping in view the provisions contained in the

SectionHindu Succession Act, 1956 has arrived at the conclusion

that the appellant cannot be considered as a coparcener in

respect of the premises in question. Hence the learned

Single Judge has also taken a similar view as arrived at by

the Prescribed Authority/learned Upper Civil Judge and in

that light has reversed the judgment passed by the

Appellate Court. The appellant, therefore, claiming to be

aggrieved is before this Court in this appeal.

5. We have heard Mr. Rajiv Dutta, learned senior

advocate along with Mr. Vikas Singh Jangra, learned

advocate on behalf of the appellant, Ms. Purnima Bhat,

learned advocate on behalf of the respondents and perused

the appeal papers.

6. The learned senior advocate for the appellant would

contend that the authorities prescribed under the SectionRent Act

in issue had considered the matter and though divergent

Page 4 of 20
opinions were expressed, the Appellate Court had in fact

appreciated the matter in its correct perspective since in a

summary proceedings of the present nature the

relationship of landlord and tenant was sufficient to be

established which in fact had been established and it ought

not to have been considered like a title suit. The Prescribed

Authority has examined the ownership of the property as if

being considered in a partition suit or title suit so as to

arrive at its conclusion. It is no doubt true that the father

of the appellant had earlier filed an eviction suit against the

predecessor of the respondents and had failed in the

proceedings arising thereunder. However, in a family

settlement the property in question had fallen to the share

of the appellant herein and in that circumstance the need

for the premises was a fresh cause of action and in a

circumstance where at the first instance there was no

dispute to the fact that the father of the appellant, namely,

Shri Dwarka Prasad Chaturvedi was the owner, there could

not have been dispute to the fact that the appellant, who is

his son had acquired ownership over the property in the

family settlement. In that regard, it is contended by the

Page 5 of 20
learned senior advocate that when the learned Appellate

Judge which is a statutory authority under the Act had

arrived at the conclusion based on reappreciation of the

matter, the consideration as made by the High Court in a

writ petition under SectionArticle 227 of the Constitution, as if it

was in the nature of an appeal by reappreciating the entire

aspect is not justified. Hence, he contends that the

ownership as well as the bonafide requirement being

established, the appellant is entitled to succeed and secure

release of the 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 by the

Prescribed Authority through the judgment dated

07.12.1979. The appeal against the same was dismissed

and the writ petition was also dismissed on 29.10.1999.

The father of the appellant having failed to succeed had

thereafter instituted a fresh proceeding through the

appellant who is his son, on 10.02.2000 by creating certain

Page 6 of 20
rights in favour of the appellant under an alleged

settlement dated 15.11.1999. The Memorandum of

Settlement dated 02.02.2000 was created for the said

purpose. It is her contention that the father of the

appellant had secured his share in the property prior to the

birth of the appellant and as such the property cannot be

considered as a coparcenary property whereunder the

appellant can claim any right as a coparcener and secure a

share. It is her contention that the Prescribed Authority as

also the High Court has considered this aspect and has

arrived at the conclusion in accordance with law which

does not call for interference. It is further contended that

the alternate shop indicated by the learned Appellate Judge

is not suitable for business purpose and, therefore, even in

that regard, apart from the bonafide of the appellant not

being established the respondents would be exposed to

greater hardship if the premises is ordered to be released.

Hence it is contended that the order impugned does not call

for interference.

8. In the background of the rival contentions, at the

outset, a perusal of the judgment in the case of SectionShalini

Page 7 of 20
Shyam Shetty Anr. vs. Rajendra Shankar Patil

(2010) 8 SCC 329 relied upon by the learned senior

advocate for the appellant would be in order. This case

refers to the scope of consideration that could be made by

the High Court in a writ petition of the present nature.

However, keeping in view the fact that the High Court in

the instant case while examining the matter had two views

before it, one taken by the Prescribed Authority and the

other by the Appellate Authority which were divergent, one

of the views was required to be accepted by examining the

matter in that regard. Therefore, in the instant facts if that

aspect of the matter is taken note, since the Prescribed

Authority while examining the claim of the appellant herein

had adverted to the manner in which the claim of

ownership was made to the property and had held that the

appellant cannot be considered as a coparcener to be

accepted as the landlord, the High Court has also made a

consideration in that regard to accept such view. Hence in

the present circumstance instead of examining the extent of

jurisdiction, what is required to be noticed by this Court is

as to whether the nature of consideration as made by the

Page 8 of 20
Prescribed Authority as also the High Court is justified as

against the conclusion reached by the Appellate Authority

and which among the divergent opinions is to be accepted.

9. In order to examine that aspect of the matter a

perusal of the papers would indicate that at the first

instance the father of the appellant Shri Dwarka Prasad

had become the owner of the property under a partition

deed dated 09.07.1959. In that capacity, the predecessor

of the respondents was the tenant under him and the said

Shri Dwarka Prasad instituted an eviction petition against

the predecessor of the respondents on 10.03.1979. In the

said proceedings there was no dispute whatsoever with

regard to the ownership of the property or the jural

relationship of landlord and tenant between the father of

the appellant and the predecessor of the respondents. It is

no doubt true that the father of the appellant had failed in

the said proceedings and presently the Petition bearing

No.6/2000 was instituted by the appellant, who is his son,

claiming to be the owner of the property. The entire case as

put forth by the respondents to oppose the eviction suit is

with regard to the status of the property by contending that

Page 9 of 20
the joint family property had lost its character when the

partition had taken place between the father of the

appellant and the other members of the Hindu undivided

family on 09.07.1959. It is, therefore, contended that the

appellant being born in the year 1977 cannot be considered

as a coparcener. In that light it is contended that in a

circumstance where the appellant was not a coparcener, he

could not have taken a share in the property in the alleged

family settlement dated 15.11.1999 to claim as the owner

of the property. Such contention as urged by the

respondents herein has been accepted by the Prescribed

Authority as well as the learned Single Judge in the High

Court.

10. While referring to the said contentions it is necessary

to emphasise that the proceedings under the SectionRent Act is of

summary nature wherein the jural relationship of landlord

and tenant is to be taken note to the extent it is required

for considering such eviction petition and the rigour of

examining the ownership ought not to be indulged in the

manner as done in a title suit unless the respondent sets

up title to the very rented property which is adverse to that

Page 10 of 20
of the landlord. The Prescribed Authority at the initiation

of the proceedings appears to have been mindful of the

same and the said aspect would be clear if the very nature

of the issues that were framed for consideration by the

Prescribed Authority is taken note of, which read as

hereunder:

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

2. Whether the difficulties arising to the
petitioner is more compared to the difficulties
arising to the respondent if the disputed shop is
being released to the respondent.

However, the consideration has extended beyond the same

and therefore 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

was not raised by the Prescribed Authority as an issue for

consideration but appropriately the issues that were

required under the SectionRent Act had been framed. Though that

was the position the requirement of proof noted and the

finding recorded by the Prescribed Authority with regard to

the nature and status of the property reads as hereunder:

“In the present case, the petitioner had to
prove that the disputed property was a

Page 11 of 20
coparcenary property of the Joint Hindu
Family. In this context, the petitioner had not
presented any record in which the disputed
property has been shown to be a coparcenary
property. The petitioner’s father himself had
filed the petition against the respondent in
the year 1979 for the release of the disputed
shop, in that also, he had declared himself to
be owner and landlord of the disputed
property and he has not given any such
statement that he himself in the capacity of
the Karta of the family was the owner of the
coparcenary property of the Hindu Joint
Family, is the owner and the landlord. Apart
from this, the perusal of the paper No.33g/22
(Colly) (Lagayat) 26, which is filed on behalf of
the respondent and is a copy of the
Assessment of Municipal Corporation, that
the disputed property was registered in the
name of Dwarka Prasad as the owner and in
this, Shyam Bihari has been shown as a
tenant in one shop and in the above record,
there is no such mention that Dwarka Prasad
had been the owner of the disputed property,
in the capacity of Karta of the family. Besides
this, the electricity bill paper No.33g/27 is in
the name of Dwarka Prasad. After going
through all the circumstance, I am of the
opinion that the petitioner has failed to prove
that the aforesaid disputed shop to be a
coparcenary property of the Joint Hindu
Family.”

12. The very consideration made by the Prescribed

Authority as noticed above is in the nature of the title being

examined in a suit for partition or for seeking declaration of

title. In fact the Prescribed Authority apart from the above

Page 12 of 20
conclusion has gone to the extent of indicating as if the

family settlement dated 15.11.1999 was not an equitable

partition and that the right claimed under the same cannot

be accepted as in the earlier round of litigation when Shri

Dwarka Prasad instituted the suit for eviction he had not

referred to the property as a coparcenary property but had

claimed absolute right over the same.

13. As against such conclusion, the learned Appellate

Judge has taken note that Shri Dwarka Prasad, the father

of the appellant had received the property under a

registered partition dated 09.07.1959 and in that light has

kept in view the legal position that a share received in the

coparcenary property would remain to be so for three

generations. Having observed so the learned Appellate

Judge has concluded in the following manner:

“On the basis of the above discussions, it is very
much clear and evident that the shop in
question was a coparcenary property in the
hands of Dwarka Prasad and the applicant
Santosh Chaturvedi being his son has got a
right, interest and share in the said coparcenary
property. Evidence available on the record
reveals that again family settlement occurred in
between Dwarka Prasad, his sons and mother
on 15.11.1999 and due to this family
settlement, family claims and dispute arose and
due to that cause there was repartition of the

Page 13 of 20
said property on 09.04.1997 between Santosh
Chaturvedi and his mother, father and brother
which was written memorandum on
02.02.2000. The written memorandum was
also filed on the records and one original suit
No.220/01 Santosh Chaturvedi vs. Dwarka
Prasad and Others was filed in context with the
partition of the property which was decided on
19.04.2001 on the basis of the compromise.

It is the argument of the learned counsel
for Shyam Bihari that all the averments are
concocted and have been framed just to give
colours to the matter, I am not satisfied with
this argument. Because, the evidence has been
filed on record that oral partition occurred on
15.11.1999 amongst Dwarka Prasad and his
sons Vijay and Santosh Chaturvedi and his
mother which was reduced in writing by a
memorandum of family settlement dated
02.02.2000 which was confirmed by the decree
of the original suit No.220/01. It is well settled
law on this point that the partition can be oral
and even written amongst the members of
Hindu families. The Hindu Law is very much
clear that if one coparcener expresses his desire
for the partition then legally the
partition/severance of the coparcenary property
takes its effect from the same day i.e. from the
day, coparcener had expressed his desire for the
partition.”

14. Though such detailed examination with regard to the

nature of the right to the property has been made in the

present case, we are of the opinion that the same was

wholly unnecessary in a summary proceeding of the

present nature when the tenant had not set up title to the

Page 14 of 20
premises in question. Irrespective of the fact as to whether

the property was the coparcenary property or had become

the absolute property of Shri Dwarka Prasad, the fact

remains that a family settlement dated 15.11.1999 was

entered into, to which Shri Dwarka Prasad who was the

owner was himself a party and had given a portion of his

property to his son. Pursuant to such oral family

settlement dated 15.11.1999 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

said suit was disposed of on 19.04.2001 based on the

compromise.

15. Whether the share given by Shri Dwarka Prasad to

the appellant who is his son is justified or as to whether the

nature of the document under which the settlement was

recorded was as per requirement of law and valid are all

issues which can only be raised by any other member of

the family who would feel deprived and could have claimed

right over the such property. But in a circumstance where

Shri Dwarka Prasad who admittedly was the owner of the

Page 15 of 20
property had made a settlement in favour of the appellant

who is his son, the title thus acquired, in any event, cannot

be called in question by the person who is in occupation of

the premises as a tenant when Shri Dwarka Prasad who

admittedly was his landlord did not continue to claim to be

the landlord. If that be the position as rightly noticed by

the Appellate Authority, in view of the provision as

contained in Section 8 and Section 109 of Transfer of

Property Act, on transfer of the property by the owner the

tenant would automatically become the tenant of the

transferee. The further observation of the Appellate

Authority contained in its order to notice the relationship of

landlord and tenant is as hereunder;

“………………Even if, Shyam Bihari Lal has
denied himself to be the tenant of the
applicant, but here it is more important that
another suit was pending amongst the parties
for the eviction of tenant Shyam Bihari Lal
where Shyam Bihari Lal had accepted himself
to be the tenant of Santosh Chaturvedi and
had deposited the rent on the first date of
hearing of the suit and has also requested for
extending the benefit of Section 20(4) of Act
No.13 of 72, to him in that case.”

Page 16 of 20
It will indicate that the respondents at this juncture cannot

dispute the ownership of the appellant over the property or

the jural relationship.

16. The aspect which is also necessary to be taken note

is that the predecessor of the respondents late Shyam

Bihari had initiated a proceeding in Suit No.113/2011

(Annexure R­12) before the Rent Control and Eviction

Officer, Mathura wherein he had sought for allotment of

alternate premises by indicating that the case bearing

No.6/2010 had been initiated by the appellant herein

against him. This would indicate that at the first instance,

the predecessor of the respondents did not have any issue

with regard to the ownership and was making an attempt

to secure an alternate premises but has only thereafter

raised the contention despite the relationship being

indisputable. Therefore, taking into consideration all these

aspects we are of the opinion that the view expressed by

the Appellate Court is appropriate in the present facts and

circumstance.

Page 17 of 20

17. Having arrived at the above conclusion we have

taken into consideration the nature of the claim made by

the appellant for release of the property. From the evidence

as tendered, the appellant had contended that he is doing

wholesale business of cloth for which he does not have

premises due to which he, his wife and two children are

experiencing hardship. In a circumstance where there is

no material available on record to indicate that the

appellant has any other alternate premises, the bonafide

need of the appellant as claimed will have to be accepted

and even though the respondents would face some

hardship, as compared to the same the hardship to be

faced by the appellant would be greater if the premises is

not released to the appellant. Though at this juncture the

learned counsel for the respondents would submit that the

alternate premises bearing No.83/9­C Chhatta Bazar,

Mathura ordered to be made available to the respondents is

not suitable, it is in fact an order made by the Appellate

Court only in order to minimize the hardship. In that

circumstance, if the said premises is not suitable, it is open

to the respondents to not opt for the same. However, when

Page 18 of 20
the appellant has established that he is the owner of the

property and the same is required for his bonafide

occupation, the release of the premises in any event, is

required to be made.

18. In that view, for all the reasons stated above we are

of the opinion that the Prescribed Authority as well as the

learned Single Judge of the High Court were not justified in

their conclusion. Accordingly, the judgment dated

03.08.2001 passed in Petition No. 6/2000 and the

judgment dated 28.11.2007 passed in C.M.W.P.

No.54204/2007 are set aside. Consequently, the judgment

dated 09.10.2007 passed in P.A. Appeal No.1/2002 is

restored. The respondents are granted three months’ time

to vacate and handover the vacant possession of the

petition subject premises bearing No.83/72­A situate in

Tiwari Gali, Chhatta Bazar, Mathura to the appellant

subject to an undertaking being filed before this Court

within a period of three weeks. It is made clear that if such

undertaking is not filed the benefit of the time granted to

vacate will not be available to the respondents. Further,

Page 19 of 20
the release of the premises in question shall be made

irrespective of opting for the alternate premises as ordered

by the Appellate Court.

19. The appeal is allowed accordingly. There shall be no

order as to costs. All pending applications shall stand

disposed of.

….……………………….J.

(R. BANUMATHI)

….……………………….J.

(A.S. BOPANNA)

….……………………….J.

(HRISHIKESH ROY)
New Delhi,
November 15, 2019

Page 20 of 20

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