Saturday, 13 March 2021

Whether legal heirs of the tenant can challenge compromise entered by a tenant with his landlord after his death?

 As per compromise, after carving out the shop at the

expense of the landlord to be left in possession of the tenant Raj

Bahadur Jain he was to be put in possession and he, admittedly,

continued to remain in possession of the shop for about ten years

till his death at the same old rent @ Rs. 18/- per month. It is,

therefore, clear that the compromise was actively and effectively

acted upon and was respected by both the landlord and the tenant Raj Bahadur Jain. The petitioners herein being daughters of the tenant were obviously beneficiary, may be indirectly, of such compromise as the tenant Raj Bahadur Jain continued in peaceful possession of the said shop till his death as the proceeding of the release application did not proceed further on the basis of such compromise. From the record it is further reflected that even after death of Raj Bahadur Jain no challenge to this compromise was raised for considerably long time, as per landlord, for about 16 years.

11. There is no quarrel with the law that in cases where

protection under a Rent Act is available, no eviction can be ordered

unless ground seeking eviction is made out, even if parties had

entered into a compromise and that the invalidity on that count

can even be raised in execution. However, whether petitioners can take shelter of such law in the facts and circumstances of the

case? I am of the view that the law is also settled that a party

cannot be permitted blow hot – blow cold, where he knowingly

accepts the benefit of a contract, or conveyance, or of an order, he is estopped from denying the validity of, or the binding effect of such contract, or conveyance, or order upon himself. This rule is applied to ensure equity. A reference may be made in this regard to a judgment of Hon'ble Supreme Court in the case of Rajasthan State Industrial Development and Investment Corporation and another vs. Diamond & Gem Development Corporation Limited and another 2013 (5) SCC 470.

12. The net effect of judgment rendered in the case of

Raghunath Prasad Pande vs. State of Karnataka and others

2018 (5) SCC 594 is that once the compromise decree has been

acted upon, a party cannot be permitted to go back from the same and the same is not liable to be set aside.

It is

also clear that he was the sole tenant and had every right to enter

into compromise about his tenancy rights. Not only the existence

of compromise but the execution thereof is still not in dispute and that arrangement under the compromise continued for about 10 years till the death of the tenant Raj Bahadur Jain and they enjoyed the benefits arising out of such compromise.

14. In such view of the matter, at present, clearly it is not a case

where the original tenant is coming forward with a case that some fraud was played upon him and the compromise is contrary to statutory provisions. On the other hand, he remained in possession over the agreed part of the accommodation on old rent @ Rs. 18/- per month, which did not increase for about ten years during his lifetime. In other words, the compromise was

continuously acted upon by the parties. Thus, now the legal heirs

cannot come forward and say that they are the statutory tenant

and this compromise was nullity as they were not a party or that it is contrary to law.

ALLAHABAD HIGH COURT

Case :- WRIT - A No. - 71464 of 2010

Petitioner :- Km. Anshu Jain And Others

Respondent :- Suresh Prakash Garg And Others


Hon'ble Vivek Kumar Birla,J.

Dated: 10.3.2021

1. Heard Sri Nagendra Kumar Srivastava, learned counsel for

the petitioners-tenants and Sri Mohit Kumar along with Sri Mohit

Kumar Shukla, learned counsel appearing for the respondentslandlords.

2. Leading petition has been filed challenging the impugned

orders dated 1.11.1994 and 16.11.2010 passed by the Prescribed

Authority/Judge Small Causes Courts, Bulandshahar.

3. The petitioners herein are the tenants of the shop no. 58,

Chowk Bazar, Bulandshahar. Initially the said shop was in the

tenancy of grandfather of petitioners late Jugmandar Das Jain.

After his death, as per family settlement between the legal heirs of

late Jugmandar Das Jain, the shop in question was given to Sri Raj

Bahadur Jain by means of inheritance from his father. Thereafter,

the respondents-landlords initiated the proceedings under Section

21(1)A of the Act No. 13 of 1972 against Sri Raj Bahadur Jain. In

the release application, it was stated that the shop in question is

required to fulfill the need of his family and the need of the

landlord is bona fide and genuine. Thereafter, father of the

petitioner late Raj Bahadur Jain filed his written statement in the

release application stating therein that the need of the landlord is

not bona fide and genuine. On 1.11.1994 one alleged compromise

application was filed before the prescribed authority, on the basis

whereof the prescribed authority passed the impugned order dated

1.11.1994, against which the tenants-petitioners filed a suit being

Original Suit No. 380 of 2004, which was decreed vide judgement

and order dated 25.10.2008 wherein it was recorded that after the

death of father of the petitioners Raj Bahadur Jain the tenancy

right has been inherited by the petitioners and they are the

tenants of the shop in question. No appeal against the said

judgement was filed by the respondents-landlords. Thereafter, the

respondent-landlord Surendra Kumar Jain filed an application

dated 18.11.2004 under Section 23 of the Act No. 13 of 1972 for

execution of the order dated 1.11.1994, against which petitionerstenants

filed their objection on 16.3.2005. The prescribed

authority allowed the application 4A filed under Section 23 of the

Act No. 13 of 1972 vide impugned judgement and order dated

16.11.2010. Hence the present petition.

4. Submission of learned counsel for the tenants-petitioners is

that the orders impugned herein are illegal, perverse and suffer

from manifest error of law. It is next submitted that in view of

provisions of Section 21(1)A of Act No. 13 of 1972 for release of

the shop in question, prescribed authority ought to record its

findings in respect of the bona fide need and comparative

hardship. It is further submitted that the court below in its

judgement 25.10.2008 passed in original suit no. 380 of 2004

recorded a finding that after the death of Raj Bahadur Jain the

tenancy right devolved to his legal heirs. It is further submitted

that application filed by the respondent-landlord under Section 23

of the Act No. 13 of 1972 was not maintainable as all the legal

heirs of Raj Bahadur Jain was not impleaded. He lastly submits

that the respondent-landlord has already got the other shop and

the same was let out to another person and as such, the need of

the respondent-landlord is not at all bona fide.

5. Learned counsel for the petitioners has placed reliance on the

judgements of Ratan Lal vs. Additional District Judge,

Bulandshahar and others 1979 (5) ALR 509, Firozi Lal Jain

vs. Man Mal 1970 (3) SCC 181, Barkat Ali & Another vs.

Badri Narain (D) by Lrs. 2008 (4) SCC 615, Pancham vs.

Ram Gen and others 2009 (3) ARC 593, Jagdish Lal Sah vs.

Additional District Judge, Nainital & Ors. 2006 (1) JCLR 276

(Uttaranchal), Gian Devi Anand vs. Jeevan Kumar & Ors.

1985 (2) SCC 683, Gauri Shanker:Suresh Gupta:Rajat Roy

vs. Union of India:Rajdevsingh: Sobha Singh Private Limited

1994 (6) SCC 349, Nai Bahu vs. Lal Ramnarayan 1978 (1)

SCC 58, Srimathi Kaushalaya Devi vs. K.L. Bansal 1969 (1)

SCC 59, Saroja vs. Chinnusamy (Dead) by LRs. and Anr.

2007 (8) SCC 329, Smt. Kishan Pyare vs. Rent Control and

Eviction Authority-cum-Prescribed Authority, Bulandshahar

2005 (1) JCLR 748, Ramchandra Dagdu Sonavane (D) by

Lrs. & Ors. vs. Vithu Hira Mahar (Dead) by Lrs. & ors. 2009

(10) SCC 273, Sajjadanashin Sayed Md.B.E.E. (D) By Lrs. vs.

Musa Dadabhai Ummer 2000 (2) JT 352, Aanaimuthu

Thevar (Dead) by Lrs. vs. Alagammal 2005 (6) JT 333,

Sulochanaamma vs. Narayanan Nair 1994 (2) SCC 14 and

M/s Alagu Pharmacy & others vs. N. Magudeswari 2018 (8)

SCC 311.

6. Per contra, learned counsel for the landlord submitted that

the property was required for personal use of landlord and family

of the landlord being Surendra Prakash Garg. Consequently, an

appeal under Section 21(1)(a) of the Act was filed before the

prescribed authority and that since the tenant Raj Bahadur Jain

could not defend against the personal need of the landlord and

admittedly entered into a compromise and since the tenant was

old person, therefore, taking a sympathetic view of the matter a

settlement was arrived at between the landlord and the tenant and

compromise to this effect was entered into and filed on 1.11.1994

in the aforesaid PA Case No. 27 of 1992. According to this, the

release application was allowed in part and out of the total area of

shop being 7.9 ft x 23 ft a shop having 5.6 ft x 12 ft was repaired /

constructed and was left in possession of the tenant on the

condition that he will remain in possession till his lifetime and

thereafter there will be no succession of any right devolving

tenancy on legal heirs. The tenant was barred from giving

possession of the shop. It was decided that he shall continue to

pay rent @ Rs. 18/- per month, which was the earlier rent of the

entire accommodation, which will not be changed during his

lifetime. It was further provided that the legal heirs shall handed

over possession of the shop after death of the original tenant, Raj

Bahadur Jain and it was left open that if they failed to do so, the

process of recovery of possession of the shop may be initiated as

admittedly, compromise was entered into between the landlord

and tenant. Although, petitioners herein claimed that they were

not aware of such compromise and that they were only aware of

this fact that the part of the shop in possession of Raj Bahadur

Jain, their predecessor, was handed over to the landlord. It is

submitted that this fact itself is sufficient to indicate that the

petitioners were aware of this fact that the release application has

been compromised on the basis of a compromise and the

compromise was admittedly acted upon and the original tenant

had, in fact, taken benefit of the same by avoiding the possession

of the release application as well as by remaining in possession of

a part of the shop. Submission is that the original tenant had, in

fact, admitted the bonafide need of the landlord and agreed to

release the shop in part and it is only on that basis the

compromise was entered into and undisputedly, is a part of the

order of the judgment of the prescribed authority. Submission,

therefore, is that now the petitioners herein cannot go back on the

compromise entered into by the original tenant on technical

ground as the compromise was acted upon and they have enjoyed

fruits of the compromise for such long years from 1994 to 2014 till

the filing of the present litigation for obtaining possession of the

shop under tenancy when the petitioners failed to vacate the

same. He further submitted that the Original Suit No. 380 of 2014

filed by the petitioners herein for permanent injunction against the

landlord was not maintainable and in any case, has no effect on

the proceedings before the prescribed authority, moreso, when the

landlord adopted proper procedure of law for taking back the

possession. It is submitted that the said suit was barred under

Section 41 (h) of the Specific Relief Act and was not maintainable.

He further submitted that in any case, the tenancy right stood

extinguished in view of the compromise of the year 2004 and that

the status of Raj Bahadur Jain was that of a licensee thereafter till

his death, which stood terminated on his death. Submission,

therefore, is that the petitioners did not have any right to acquire

any tenancy right in place of Raj Bahadur Jain and the present

process is nothing but an abuse of process of law as the

compromise was acted upon and the petitioners have enjoyed the

fruits of the compromise, which was never disputed by Raj

Bahadur Jain and he enjoyed the possession in pursuance of part

release only till his death and even the rent was never enhanced.

7. Learned counsel for the landlord has placed reliance on

judgments of in the cases of Rakesh Shukla vs. District

Magistrate / Sub Divisional Magistrate and another 2002

ALL. L.J. 2388, Saudan Singh Yadav vs. Asstt. Regional

Transport Officer (ADM) Mainpuri 1994 (23) ALJ 299, Shree

Krishna Jotish Pathshala Kanya Inter College, Bisalpur,

Pilibhit and another vs. District Inspector of Schools,

Pilibhit and others 1988 UPLBEC 739, Deepa Bhargava and

another vs. Mahesh Bhargava and others 2009 (75) ALR

317, Sova Ray vs. Gostha Gopal Dey 1988 AIR (SC) 981,

Suleman Noormohamed vs. Umarbhai Janubhai 1978 AIR

(SC) 952, Mehar Jahan vs. J.S.C.C./Prescribed Authority,

Meerut 1998(2) ARC 587, State of West Bengal vs. Hemant

Kumar Bhattacharjee 1966 AIR(SC) 1061, Raghunath and

others vs. Ram Khelawan and others 1968 RD 344,

Chandrika Misir vs. Bhaiya Lal 1973 AIR(SC) 2391, Jaggan

vs. Dular and others 1966 ALJ 1966, Mathura Prasad Bajoo

Jaiswal vs. Dossibai N.B. Jeejeebhoyf 1971 AIR (SC) 2355,

P. Nirathilingam vs. Annaya Nadar and others AIR 2002 SC

42, Annamreddi Bodayya vs. Lokanarapu Ramaswamy 1984

AIR (SC) 1726, K.V. George vs. Secretary to Government,

Water and Power Department, Trivendrum 1990 AIR (SC)

53, ITC Limited vs. Debts Recovery Appellate Tribunal 1998

AIR(SC) 634 and Jagdish Chander Ghatterjee vs. Kishan

1972 (2) SCC 461.

8. I have considered the submissions and have perused the

record.

9. On perusal of record I find that the crux of the argument of

learned counsel for the petitioners is that if the compromise decree

is contrary to statutory provisions, the same is a nullity and cannot

be executed. Placing reliance on judgment already referred above

crux of the submission is that since prescribed authority had not

satisfied itself and that the bonafide need and comparative

hardship had not examined any relevant material to find out

whether the statutory provisions ground of eviction are proved, the

compromise decree, purely on that basis, was a nullity. In the

present case, from perusal of record it is clear that the original

tenant Raj Bahadur Jain was in possession of a shop measuring

7.9 ft x 23 ft and in the release application filed on the ground of

personal need of the family, he agreed to remain in possession of

the shop 5.6 ft wide x 12 ft. deep only, which was to be handed

over to him by the landlord after the order of the court within 15

days. The compromise further reflects that the old rent @ Rs. 18/-

per month was to continue. One cannot be oblivious of the fact

that this release application was filed in the year 1992 and even on

that point of time Raj Bahadur Jain was old tenant on a meagre

rent (old rent) of Rs. 18/- per month, which was not to be

increased till he was to remain in possession. The tenant Raj

Bahadur Jain clearly stated that he has only daughters and no son,

he, therefore, agreed in his wisdom that he will remain in

possession of the shop till his lifetime and thereafter, the tenancy

shall not devolve on his legal heirs. This fact was specifically

mentioned in paragraph 3 of the terms of the compromise and

there was a clear understanding that neither his daughters nor

their husbands shall claim any tenancy over the shop left in

possession of Raj Bahadur Jain and shall hand over the possession

to the landlord and if they failed to do so, the landlord will be at

liberty to take possession through court. Paragraph 4 of the terms

clearly indicates that the expenses for repair of the shop (after

making the shop smaller to be left in occupation of the tenant) was

to be borne by the landlord. This compromise is not in dispute and

is an admitted document. It is also not in dispute that this

compromise was acted upon and the release application was

decided accordingly. For ready reference terms of the compromise


are quoted as under:-

न्यायालय श्रीमान ित स्थित अधिधिकारी प्रथिम अधपर िसिविविल जज बुलन्दशहर।

विाद सिवंख्या 27 सिवन् 1992

सिवुरेन्द्र प्रकाश गर्गर्र बनाम राज बहादुर जैन

सिवमझौता पत

श्रीमान जी,

उपरोक्त विाद मे हम फरीकेन मे िनम्न शतो के आधिार पर बाहमी फैसिवला हो

गर्या हेः-

1- यह िक िनजाई वि दुकान इसिव सिवमय 7 फीट 9 इंज चौड़ाई मे वि 23 फीट

गर्हराई मे है िजसिवमे सिवे 5 फीट 6 इंच चाडी वि 12 फीट गर्हरी तैयार दुकान मािलक

जायदाद आदेश के बाद 15 िदन मे मरम्मत कराकर िविपक्षी िकरायेदार को देगर्ा तथिा

िविपक्षी िकरायेदार अधिधिक शेष आराजी उत्तर को पूर्विर को मािलक जायदाद को छोड़ेगर्ा

िजसिवमे कोई ऐतराज नहीं है।

2- यह िक भविविष्य मे पुराना िकराया 18-00 माहविार ही िलया जाविेगर्ा और

भविविष्य मे िकराया नही बढ़ेगर्ा।

3- यह िक िविपक्षी भविविष्य मे िकसिवी अधन्य व्यिक्त को दुकान मे नही िबठायेगर्ा तथिा

यिद दौरान िकरायेदारी िकसिवी भवी कारणो सिवे िविपक्षी श्री राज बहादुर जैन की मृत्य हो

जाती है तो उसिव सिवूर्रत मे श्री राज बहादुर जैन की ओर सिवे कोई उत्तरािधिकारी

िकरायेदारी का नही होगर्ा। श्री राज बहादुर जैन के पुत न होने के कारण सिवे श्री राज

बहादुर की पुितयों वि उनके पितयों को कोई हक हकूर् क िकरायेदारी मे नहीं पहूंचेगर्े ओर

दुकान मे सिवे सिवामान िनकालकर स्विामी जायदाद को श्री राज बहादुर के विािरसिवान वि

जानशीन सिवौप देगर्े अधन्यथिा सिवक्षम अधदालत सिवे दखल ले िलया जाविेगर्ा।

4- खचार मरम्मत दुकान मािलक जायदाद करेगर्ा।

5- खचार मुकदमा फरीकेन बिजम्मे फरीकेन होगर्ा।

अधतः उक्त फैसिवले के शतो के बाजार पर मुकदमा िनिणरत फरमाया जाविे।

बुलन्दशहर

िदनांक/ िविपक्षी प्राथिी

9

राज बहादुर जैन सिवुरेन्द्र प्रकाश गर्गर्र

(राज बहादुर जैन) सिवुरेन्द्र प्रकाश गर्गर्र

िकरायेदार मािलक जायदाद

आज यह तफसिवीमानामा 32 ए पक्षकारो द्वारा िदया गर्या है। सिवुरेन्द्र प्रकाश गर्गर्र को श्री

अधिनल जोसिवी ने शनाख्त िकया हे तथिा राज बहादुर को श्री राकेश विमार द्वारा ने

शनाख्त िकया पेश होकर आदेश हुआ िक तस्दीक हो।

स्विीकार िकया जाता है।

ह० अधस्पष

1-11-94

एडी. िसिव. जज

1-11-94

सिवुरेन्द्र प्रकाश गर्गर्र राज बहादुर जैन

ह० अधपठनीय

1-11-94

10. As per compromise, after carving out the shop at the

expense of the landlord to be left in possession of the tenant Raj

Bahadur Jain he was to be put in possession and he, admittedly,

continued to remain in possession of the shop for about ten years

till his death at the same old rent @ Rs. 18/- per month. It is,

therefore, clear that the compromise was actively and effectively

acted upon and was respected by both the landlord and the tenant

Raj Bahadur Jain. The petitioners herein being daughters of the

tenant were obviously beneficiary, may be indirectly, of such

compromise as the tenant Raj Bahadur Jain continued in peaceful

possession of the said shop till his death as the proceeding of the

release application did not proceed further on the basis of such

compromise. From the record it is further reflected that even after

death of Raj Bahadur Jain no challenge to this compromise was

raised for considerably long time, as per landlord, for about 16

years.

11. There is no quarrel with the law that in cases where

protection under a Rent Act is available, no eviction can be ordered

unless ground seeking eviction is made out, even if parties had

entered into a compromise and that the invalidity on that count

can even be raised in execution. However, whether petitioners can

take shelter of such law in the facts and circumstances of the

case? I am of the view that the law is also settled that a party

cannot be permitted blow hot – blow cold, where he knowingly

accepts the benefit of a contract, or conveyance, or of an order, he

is estopped from denying the validity of, or the binding effect of

such contract, or conveyance, or order upon himself. This rule is

applied to ensure equity. A reference may be made in this regard

to a judgment of Hon'ble Supreme Court in the case of Rajasthan

State Industrial Development and Investment Corporation

and another vs. Diamond & Gem Development Corporation

Limited and another 2013 (5) SCC 470.

12. The net effect of judgment rendered in the case of

Raghunath Prasad Pande vs. State of Karnataka and others

2018 (5) SCC 594 is that once the compromise decree has been

acted upon, a party cannot be permitted to go back from the same

and the same is not liable to be set aside.

13. In the present case, it is very much clear that release

application was filed on the ground of bonafide need. It is a case

where the property was released in part and therefore, it is clear

that the old tenant had entered into compromise (1) that probably

he was not in a position to defend the release application and (2)

that he was to remain in possession over the part of the property

on the front side for old rent of Rs. 18/- per month throughout his

lifetime. It is also reflected that the smaller shop was carved out,

out of the bigger shop and was again handed over to the tenant

Raj Bahadur Jain to remain in his possession till his lifetime. It is

also clear that he was the sole tenant and had every right to enter

into compromise about his tenancy rights. Not only the existence

of compromise but the execution thereof is still not in dispute and that arrangement under the compromise continued for about 10 years till the death of the tenant Raj Bahadur Jain and they enjoyed the benefits arising out of such compromise.

14. In such view of the matter, at present, clearly it is not a case

where the original tenant is coming forward with a case that some fraud was played upon him and the compromise is contrary to statutory provisions. On the other hand, he remained in possession over the agreed part of the accommodation on old rent @ Rs. 18/- per month, which did not increase for about ten years during his lifetime. In other words, the compromise was

continuously acted upon by the parties. Thus, now the legal heirs

cannot come forward and say that they are the statutory tenant

and this compromise was nullity as they were not a party or that it is contrary to law.

15. Insofar as the injunction suit is concerned, decree of civil

court granting permanent injunction cannot override the

proceedings under the provisions of UP Act 13 of 1972 between

the landlord and tenant. Therefore, even if the decree of the

Original Suit No. 380 of 2014 was not challenged any further, the

same would be of no consequence. The petitioners herein have

remained in possession all throughout and have been successfully

delayed the delivery of possession, which they were supposed to

deliver under the compromise entered into by the predecessor, the

original tenant immediately after his death.

16. I have also gone through the judgments relied on by the

learned counsel for the parties. Their facts appears to be

distinguishable in nature although, as already noticed, there is no

quarrel with the settled law as noted in the preceding paragraphs

of this judgment.

17. In the opinion of the court the compromise was validly

entered into between the landlord and the sole tenant, who

enjoyed the fruits or the benefits of the same. The issue of decree

to be a nullity is being raised by the legal heirs by simply seeking

relief, bye-passing the benefits enjoyed by their predecessor, the

original tenant and therefore by them also through him. The terms

of the compromise further indicate that the compromise was, in

fact, executed at the cost of the landlord carving out a new shop

out of a larger shop and handing over the same to the original

tenant and by incurring loss towards rent as well as, the rent of

the tenant was continued to be Rs. 18/- per month during lifetime

of the original tenant Raj Bahadur Jain.

18. In such view of the matter, I do not find any good ground to

interfere in the orders impugned herein in exercise of powers

under Article 226 of the Constition of India.

19. Present petition is devoid of merits and is accordingly

dismissed.

20. However, having considered the facts and circumstances of

the case, subject to filing of an undertaking by the petitionertenant

before the Court below, it is provided that:

(1) The tenant-petitioner shall handover the peaceful

possession of the premises in question to the landlord-opposite

party on or before 31.8.2021;

(2) The tenant-petitioner shall file the undertaking before the

Court below to the said effect within two weeks from the date

of passing of this order;


(3) The tenant-petitioner shall pay damages @ Rs. 2,000/- per

month by 07th day of every succeeding month and continue to

deposit the same in the Court below till 31.8.2021 or till the

date he vacates the premises, whichever is earlier and the

landlord is at liberty to withdraw the said amount;

(4) In the undertaking the tenant-petitioner shall also state

that he will not create any interest in favour of the third party

in the premises in dispute;

(5) Subject to filing of the said undertaking, the tenantpetitioner

shall not be evicted from the premises in question till

the aforesaid period;

(6) It is made clear that in case of default of any of the

conditions mentioned herein-above, the protection granted by

this Court shall stand vacated automatically.

(7) In case the premises is not vacated as per the undertaking

given by the petitioner, he shall also be liable for contempt.

21. There shall be no order as to costs.

Order Date :- 10.3.2021


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