IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Second Appeal No. 923 of 2001 (Old No. 788 of 1995) Shri Onkar Nath Agrawal S/o late Sri Bihari Lal Resident of Tata Textiles Shop, 8, Rampur Mandi Road, D ehradun. ...…………. Defendant / Appellant Versus 1. Shri Ram Narain Goel (since deceased) S/o late Shri Roop Chand Goel R/o 24, Rajpur Road, Dehradun. 1/1 Smt. Purnima Goel W/o late Shri Ram Narain Goel 1/2. Sri Vivek Goel S/o late Sri Ram Narain Goel 1/3. Ms. Gauri Goel 1/4. Ms. Rukmani Goel Both D/o late Sri Ram Narain Goel. ...…………. Plaintiff / Respondents Mr. Ramji Srivastava, Advocate for the defendant / appellant. Mr. Lok Pal Singh, Advocate for the plaintiff / respondents. Hon’ble Prafulla C. Pant, J. This second appeal, preferred under Section 100 of the Code of Civil Procedure, 1908, is directed against the judgment and decree dated 17.02.1995, passed by first appellate court (Addl. District Judge / Special Judge (Anti Corruption), Dehradun), in First Appeal 2 No. 357 of 1982, whereby the said appeal has been dismissed and judgment and decree dated 18.12.1982, passed by the trial court (Civil Judge II, Dehradun) in Original Suit No. 206 of 1978, is affirmed. 2) Heard learned counsel for the parties and perused of record. 3) Brief facts of the case, giving rise to this appeal, are that the original plaintiff Ram Narain Goel and defendant / appellant Onkar Nath Agrawal jointly purchased the property in suit situated at 8, Rampur Mandi Road, Dehradun, through registered sale deed dated 28.06.1968. The property consists of two floors. It is pleaded by the plaintiff that in 1969, parties to the suit entered into a settlement by which a private partition took place. In the first floor which was a shop, the parties got it divided into two parts, and original plaintiff and the defendant / appellant took possession of their respective portions. The first floor (the floor in dispute in this suit) was occupied as a tenant by one Ramrakhi, as such, the parties could not get physical possession of their portions in that floor but it was settled between them that after the said tenant vacates the house they will occupy their two portions which were specified in the settlement. The plaintiff Ram Narain Goel pleaded that after tenant Ramrakhi vacated the house, the defendant Onkar Nath Agrawal has occupied entire first floor, and as such, encroached 3 upon the portion owned by the plaintiff. With these pleading the plaintiff filed a suit for possession of the portion shown by yellow colour in the plaint map. 4) The defendant / appellant contested the suit and filed his written statement in which he admitted that the property was jointly purchased by the parties. However, as to the settlement in respect of the first floor, the plea taken by the plaintiff was denied. The defendant further pleaded that he is tenant in the portion of the property in dispute of the plaintiff on the first floor. As to the ground floor he admitted what has been pleaded by the plaintiff. The defendant specifically pleaded in the written statement that after the Rent Control and Eviction Officer released the first floor in favour of the landlords, the defendant occupied the portion in dispute as a tenant of the plaintiff on payment of rent at the rate of Rs. 10/- per month. As such, it is pleaded that the defendant is not liable to be dispossessed as his possession over the portion in dispute, is not illegal. 5) The trial court framed following issues on the basis of the pleadings of the parties: 1. Whether, the plaintiff is entitled to the possession of portion, as claimed? 2. Whether, the suit is not maintainable? 3. Whether, the suit is over valued? 4 4. To what relief, if any, the plaintiff is entitled? 6) After recording the evidence and hearing the parties, the trial court held that the defendant could not prove himself to be tenant of the portion in question. The trial court further found that the property was already partitioned between the parties as per the settlement, hence, decreed the suit for separate possession over the portion shown by yellow colour in the plaint map. Aggrieved by said judgment and decree dated 18.12.1982, passed by the trial court (Civil Judge II, Dehradun), in Suit No. 206 of 1978, first appeal was originally filed before the Allahabad High Court, but after the pecuniary appellate jurisdiction of the District Judge in the matters was increased, the Allahabad High Court transferred the first appeal to the District Judge, Dehradun. The appeal appears to have been transferred to the court of Addl. District Judge / Special Judge (Anti Corruption), Dehradun). Said court after hearing the parties dismissed the appeal holding that the defendant / appellant could not prove the tenancy in the portion in dispute. The first appellate court further observed that since the building was covered under the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, even otherwise the house could not have been occupied by the defendant as a tenant without an allotment order. Hence, this second appeal was filed by the defendant before the Allahabad High Court on 5 06.07.1995, where it was admitted on 05.09.1997, on following two substantial questions of law: 1. Whether, the civil court had the jurisdiction to cancel the order of release passed in favour of the defendant / appellant at the instance of the plaintiff / respondent, who was also a party in the release application? 2. Whether, after plea of the plaintiff / respondent that the partition deed was not registered was found to be false, the suit for partition filed by him was liable to be dismissed? [ The appeal is received by transfer to this Court under Section 35 of the U.P. Re-organization Act, 2000 (Central Act No. 29 of 2000), for its disposal. Answer to substantial questions of law No. 1 & 2: 7) The substantial questions of law which is formulated in the memorandum of appeal and on which this appeal is admitted, are misconceived one. In the present case, civil court exercised no jurisdiction cancelling the order of release, passed in favour of the defendant / appellant. Admittedly, the house in question was jointly owned by original plaintiff Ram Narain Goel and defendant / appellant Onkar Nath Agrawal in the year 1968, through registered sale deed. 6 It is also not disputed that in the year 1969, they entered into a settlement, and separate portion in ground floor were occupied by them. It is also not disputed that earlier the first floor was in occupation of a tenant named Ramrakhi. The record shows that in respect of the first floor the parties could not take physical possession as Ramrakhi was in occupation in the first floor. The record further reveals that on 01.07.1975, on application of defendant / appellant Onkar Nath Agrawal (who is one of the owners of the building), the property was released in favour of the landlords. The plaintiff has nowhere challenged the release order. It is settled principle of law that anyone of the landlords can get the property released in favour of both the landlords. Merely for the reason that one landlord has occupied the property released, he is not entitled to occupy the portion which is already agreed by him to be occupied by the another co-owner as per the private partition. 8) Learned counsel for the defendant / appellant argued that the occupation of the defendant / appellant is not illegal, as he is the co-owner of the portion in question. It is further argued that his possession is protected under Section 14 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. I have considered the submissions advanced on behalf of the appellant. When the defendant / appellant has pleaded specifically in the written statement that he occupied the disputed portion of the house as a tenant of 7 the plaintiff on rent at the rate of Rs. 10/- per month, it is not open to him to argue against his own plea that he is occupying as a co-owner. As to the protection under Section 14 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, said Section protects the tenants and licencees, who were in occupation of a building with the consent of the landlord on the date of commencement of the Act to the building. There is concurrent finding of fact of the courts below that the landlord had not consented and not permitted the defendant to occupy the disputed portion, as such, in the opinion of this Court, the defendant / appellant is not protected under Section 14 of the aforesaid Act. 9) Lastly, learned counsel for the defendant / appellant contended that the partition between the co- owners once found not registered could not have been relied and the decree on its basis is liable to be set aside. Said argument is also misconceived, as in Para 4 of the written statement filed on behalf of the defendant it is clearly pleaded that there was complete partition between the plaintiff and the defendant in respect of the property in ground floor as well as in first floor. In Paras 6 and 8 of the written statement it has been pleaded by the defendant that the partition which took place in the year 1969, was registered before Sub Registrar, Dehradun, on 26.09.1969. 8 Accordingly, both the substantial questions of law stand answered in favour of the plaintiff / respondents. 10) For the reasons as discussed above, this appeal is liable to be dismissed. The same is dismissed. No order as to costs. (Prafulla C. Pant, J.) [ Dt.: November 10, 2009 H.Negi