- (1.) S. U. Khan, J. Both these writ petitions have been filed by landlord against his tenants of adjoining properties. Eviction/release proceedings were initiated by landlord- petitioner against his tenants Radhey Shyam- respondent No. 2 in the first writ petition and Rameshwar Prasad-respondent No. 3 in the second writ petition in the form of P. A. case No. 33 of 1981 under Section 21 of U. P. Act No. 13 of 1972, Vishnu Kant Goswami v. Radhey Shyam and Rameshwar Prasad. In the release application it was stated that the room occupied by Radhey Shyam was required by the landlord for constructing latrine. Radhey Shyam is an Advocate and using the room in dispute as his chamber. Rent of the said room is Re. 10 per month. Radhey Shaym has also constructed his own house. In the release application it was stated that the shop occupied by Ramesh Prasad at the rate of Rs. 70 per month was required by the landlord for starting business as under family partition in between him and his brothers the family business had gone in the share of other brothers of the landlord.
(2.) BOTH the tenants denied the bona fide need of the landlord. They also alleged that the tenanted accommodations were endowment properties and landlord was not owner of the said properties. Tenants also denied any partition among landlord and his brothers and stated that the theory of said partition was put forward only to create ground of release while in-fact it was only a sham partition. Prescribed authority held that landlord was owner of the property and his need for constructing latrine was bona fide. Accordingly, Prescribed authority/additional Civil Judge IIIrd Allahabad allowed the release application in part. Room in occupation of Radhey Shyam was released while in respect of shop in possession of Rameshwar Prasad release application was rejected. Prescribed authority further held that Radhey Shyam Advocate had constructed his own house and he could very well establish his chamber in the said house. Prescribed authority decided the case through judgment and order dated 23- 1-1987 against which both landlord-petitioner as well as Radhey Shyam tenant filed appeals. Landlord's appeal was registered as R. C. appeal No. 151 of 1987 and the appeal of Radhey Shyam tenant was registered as R. C. appeal No. 138 of 1987. Both the appeals were heard and decided by common judgment dated 21-5-1992 by IInd ADJ. , Allahabad. Appellate Court also held that property in dispute was not endowed property and landlord was owner thereof. In respect of partition among landlord and his brother appellate Court held that a sham transaction as initially original landlord Radha Krishna Goswami sought release of the disputed room/shop for his son and after dismissal of the said release application the theory of partition was set up. The plea of non-maintainability of release application against Radhey Shyam on the ground of non- maintainability of his brothers and sisters was negatived by the appellate Court and appellate Court held that release application was maintainable.
(3.) LANDLORD had opposed the application of the tenant for inspection of the property in dispute and the adjoining property in possession of the landlord. On the said objection application was rejected. Appellate Court held that objection was not bona fide. This finding of the appellate Court is quite erroneous. In case objection against inspection was not tenable then it should have been rejected. If at the earlier stage objection of the landlord was maintained then at the time of final decision it could not be said that objection of the landlord indicated his mala fides. LANDLORD in his objection had stated that there was no intervening wall in between his portion and the portion of his brother. Appellate Court held that as there was no partition hence landlord and his family members were using latrine, which was situate in the adjoining portion. Appellate Court further held that landlord also like his brother could construct latrine in the back portion. However, whether any space was available to the landlord in the portion in which he was residing to construct the latrine or not was not decided by the appellate Court. Even if partition is ignored, the two brothers along with their families are entitled to reside either separately or in separate portions of the same house. Having a common latrine is extremely inconvenient. Even if families of two brothers are residing jointly, need for two latrines cannot be said to be not bona fide. Learned Counsel for landlord has vehemently argued that there is no other space available to the landlord to construct the latrine. Learned Counsel for tenant Radhey Shyam has not been able to point out any suitable alternative space available to the landlord to construct the latrine conveniently. It is too much to ask a landlord to construct latrine in the sehan which is already quite small or in the passage/gallery. The word used under Section 21 of the Act is 'need' and not 'dire need'. Neither the tenant nor the Court can suggest to the landlord other means to satisfy his need so that tenant may continue in possession unless those means are equally viable. Supreme Court in Sarla Ahuja v. United India Insurance Co. , AIR 1999 SC 100, has held that it is unnecessary to make an endeavor as to how else the landlord could have adjusted himself (para- 14 ). The Supreme Court in Siddalingama v. M. Shenoy, AIR 2001 SC 2896, has held that the Rent Control Acts are basically meant for the benefit of the tenant and provision of release on the ground of bona fide need is the only provision which treats the landlord with some sympathy.;