P.N.Khanna and Anr. vs VIth Additional District Judge,Bareilly & Ors.

S.U. Khan, J.

Property in dispute is a flat situate in Khanna Building Subhash Nagar, Bareilly containing a big Hall and two rooms of 14'' x 11'', dimensions each, alongwith Varandah, Tin shed and other amenities like latrine, bathroom, kitchen etc. It was allotted to respondent No. 3, Diwakar Upadhyay on 1811973 after rejection of release application of the landlords on 1011973. If the version of respondent No. 3 that he paid 28 years rent on 16112000 is not believed, then he is in possession for 33 years without payment of any rent. This petition was filed by P.N. Khanna and B.N. Khanna who were real brothers. B.N. Khanna died in 2003 and was substituted by his legal representatives.

The flat in dispute fell vacant due to its vacation by earlier tenant B.R. Bhatia. Release application was filed under Section 16 of U.P. Act No. 13 of 1972 by P.N. Khanna, petitioner No. 1. Even though in writ petition and in some other affidavits it was stated that release application was filed by both the petitioners, however during the course of arguments learned Counsel for the petitioners clarified that as copy of release application was not available at the time of filing the writ petition, and other affidavits hence it was wrongly mentioned therein that both the petitioners had filed release application. Learned Counsel for the petitioners admits the contention of the learned Counsel for respondent No. 3 that release application was filed only by P.N. Khanna, petitioner No. 1 and B.N. Khanna was impleaded as proforma respondent in the said application.

As stated earlier, release application was rejected by Rent Control and Eviction Officer on 1011973 and flat in dispute was allotted to respondent No. 3 on 1811973. However, in the allotment order no rent was fixed. Against the said orders two revisions being Revision Nos. 20 and 29 of 1973 were filed. On 6 111973 Additional District Judge, Bareilly allowed both the revisions, set aside both the impugned orders and matter was remanded to Rent Control and Eviction Officer. Thereafter on 21 11975 Rent Control and Eviction Officer released the flat in dispute in favour of petitioner No. 1 P.N. Khanna. Against the said order appeal/revision was filed by respondent No. 3, which was dismissed by the District Judge, Bareilly on 2371975 and six month''s time was granted to vacate.

Thereafter respondent No. 3 started adopting crooked courses to continue in possession. He filed Original Suit No. 67 of 1976. In the said suit respondent No. 3 asserted that petitioner No. 2 B.N. Khanna was landlord, hence release order in favour of petitioner No. 1 was illegal and without jurisdiction and he (respondent No. 3) could not be dispossessed in pursuance of the said release order. Meanwhile Form ''C'' was served upon respondent No. 3 from the office of Rent Control and Eviction Officer for vacating the flat in dispute. Against Form ''C'' Writ Petition No. 2065 of 1977 was filed, which was dismissed on 1871978. Thereafter Form ''D'' was issued on 23111978. However, due to temporary injunction order passed in aforesaid Original Suit No. 67 of 1976 Form ''D'' was recalled by Rent Control and Eviction Officer through order dated 30111978. Thereafter Original Suit No. 67 of 1976 was dismissed on 711979. Categorical finding was recorded in the said suit that both B.N. Khanna and P.N. Khanna were landlords, hence there was absolutely no fault in the release order. First Appeal filed against the said judgment and decree was dismissed by District Judge/Additional District Judge on 1821981. Thereafter Second Appeal No. 1167 of 1981 was filed in this High Court, which was dismissed on 1921982.

Thereafter petitioners filed application for possession and prayed for issuance of fresh Form ''D''. This application was filed on 2851983. respondent No. 3 filed objections praying for recall of the entire proceedings stating therein that only petitioner No. 2 was landlord, hence release order, which was only in favour of petitioner No. 1, could not be enforced. Rent Control and Eviction Officer, Bareilly/A.D.M. Civil Supplies, Bareilly through order dated 2351984, held that possession could not be delivered to P.N. Khanna, hence his application for delivery of possession was rejected. Rent Control and Eviction Officer held that respondent No. 3 allottee had stated in his affidavit that in the family partition, recognized and affected through decree passed in Original Suit No. 305 of 1974, building of which flat in dispute is a part, was given in the share of B.N. Khanna, petitioner No. 2, hence release order in favour of petitioner No. 1 could not be enforced. No document alongwith affidavit was filed by respondent No. 3 P.N. Khanna filed objections. Rent Control and Eviction Officer held that B.N. Khanna had not filed any affidavit. It appears that Rent Control Inspector also filed some report dated 24111993 stating that flat in dispute was in the share of P.N. Khanna. Rent Control and Eviction Officer believed the version of respondent No. 3 that in family partition, flat in dispute had fallen in the share of B.N. Khanna, hence release order in favour of P.N. Khanna could not be enforced. Against the order dated 2351984, revision was filed being Rent Control Revision No. 146 of 1984, which was dismissed by Additional District Judge, VI Bareilly through judgment and order dated 14121992. Revision was mainly dismissed on the ground of maintainability. However, it appears that learned Additional District Judge also agreed with the findings of Rent Control and Eviction Officer. This writ petition is directed against orders dated 2351984 and 14121992.

Copy of plaint of Original Suit No. 305 of 1974 through which partition was effected in between P.N. Khanna and B.N. Khanna and other members of their family has been annexed as Annexure ''4'' by respondent No. 3 himself alongwith his counteraffidavit. In Para 4 it was stated that Plaintiff No. 1 and Defendant No. 1 i.e. B.N. Khanna and P.N. Khanna were owners in possession of properties specified in Schedule ''A''. In Schedule ''A'' given at the foot of the plaint three properties were included. Property No. 2 was Khanna Building (flat in dispute is part of the said Khanna Building). In the plaint no relief for par tition of properties in Schedule ''A'' of the plaint was sought. The whole case of respondent No. 3 falls on this ground. Even otherwise also in Original Suit No. 67 of 1976 filed by respondent No. 3, this question was specifically decided and it was held that the said property was joint property of both the petitioners. Said judgment was approved by this Court in Second Appeal. Even, writ petition filed against Form ''C'' was dismissed by this Court.

The above facts clearly demonstrate that respondent No. 3 has abused the process of the Court to the hilt.

Release order dated 2111975 had been confirmed by the District Judge. Rent Control and Eviction Officer had absolutely no jurisdiction to reassess the correctness of the said order, which had merged in the Appellate/Revisional order passed by the District Judge. In any case, when application for delivery of possession was filed by petitioner No. 1, it was in the nature of execution. Rent Control and Eviction Officer had no jurisdiction to go behind the impugned order sought to be executed. Executing Court cannot go behind the decree. In any case, respondent No. 3 did not file any document before Rent Control and Eviction Officer to show that building in dispute had fallen in the share of petitioner No. 2 alone. The said question, raised by respondent No. 3, had already been decided by the Civil Court.

A supplementary counteraffidavit was filed by respondent No. 3, sworn on 2482003. As Annexure S.A. ''1'' two rent receipts have been filed bearing dates 16112000. As Annexure ''2'' a letter purported to have been written by petitioner No. 1 dated 562000 has been filed. Photocopies of the rent receipts bear some signatures. However, it is not mentioned that who has signed the said receipts. Through first receipt of 16112000, it is shown that rent @ Rs. 23 per month from 1811973 to 1762000 amounting to Rs. 7,567 was received. Through second receipt it is shown that rent from 1862000 to 17112000 @ Rs. 50 was received. Annexure S.A. ''2'' purports to be a letter written by petitioner No. 1 acknowledging that Flat No. 6 has fallen in the share of petitioner No. 2 B.N. Khanna and he (P.N. Khanna) has no share or entitlement in the said house and he will withdraw and get dismissed this writ petition. Learned Counsel for petitioners has out rightly denied that any rent was received either by petitioner No. 1 or petitioner No. 2 or any letter was issued by petitioner No. 1. Petitioners are contesting the proceedings since 1973. There does not appear to be any sense in writing letter by petitioner No. 1. In the partition suit both the brothers i.e. the petitioners kept the property in dispute as joint, hence there was no sense on the part of petitioner No. 1 to acknowledge and admit that he had no share in the entire building. The two receipts and the letter are stark forgeries. Moreover, it has not been stated from where this figure of Rs. 23 per month rent has been taken out by the respondent No. 3. In the allotment order no rent was fixed. Learned Counsel for the respondent No. 3, during arguments, has shown receipt of rent from 18112000 to 17122005 @ Rs. 50 amounting to Rs. 3,050 . On the direction of the Court, photocopy of the said receipt was supplied for being kept on record. This receipt also contains similar signatures as in the receipts filed alongwith supplementary affidavit in August 2003. Said receipts were shown to have been issued on 16112000. If petitioner No. 2 B.N. Khanna issued the receipt dated 16112000, then it was impossible for him to issue the receipt, Photostat copy of which was supplied on 822006, when arguments were heard and judgment was reserved, as petitioner No. 2 had died in July, 2003. However, if the previous receipts of November, 2000 are by some other person, then they are meaning less as petitioner No. 2 was alive at that time and there was no occasion for any other person to issue rent receipt as according to respondent No. 3 at that time petitioner No. 2 B.N. Khanna was his landlord. It is therefore, abundantly clear that the letter dated 562000 purported to have been issued by P.N. Khanna and the rent receipts are clearly forged.

The most disturbing thing is that respondent No. 3, who has played with the process of Court, and has exploited the same to his best advantage, is a teacher.

Accordingly writ petition is allowed. Impugned judgments and orders are set aside. District Magistrate/Collector, Bareilly is directed to deliver possession of the flat in dispute to the petitioner No. 1, without any undue delay. In this regard he shall not delegate his functions to any other Subordinate Officer.

The current rental value of the flat in dispute may not be less than Rs. 3,000 or 4,000 per month. Accordingly it is directed that with effect from 1811973 till date respondent No. 3 shall be liable to pay rent/damages for use and occupation @ Rs. 1,000 per month. With effect from today till actual vacation respondent No. 3 shall be liable to pay Rs. 100 per day as damages. This amount may be recovered under Rule 24 of the said Rules framed under the Act. For the said purpose certified copy of this judgment shall be treated to be certificate of recovery in Form ''G'' under Rule 24 (2) of the said Rules.