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REPORTABLE

        IN THE SUPREME COURT OF INDIA

        CIVIL APPELLATE JURISDICTION

          CIVIL APPEAL No.  9727  OF 2016        (ARISING OUT OF SLP (C) No. 16643/2012)

Gulshera Khanam …….Appellant(s)

VERSUS

Aftab Ahmad ……Respondent(s)

          J U D G M E N T

Abhay Manohar Sapre, J.

1) Leave granted.

2) This appeal is filed against the final judgment

and  order  dated  17.01.2012  passed  by  the  High

Court of Judicature at  Allahabad in Civil Misc. Writ

Petition No. 65612 of 2011  whereby the High Court

allowed  the  writ  petition  filed  by  the

respondent-tenant  and  set  aside  the  order  dated

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04.03.1999 of the Prescribed Authority in U.P.U.B.

Case No. 13 of 1994 and order dated 24.08.2011 of

the  Additional  District  Judge,  Aligarh  in  U.P.U.B.

Appeal No. 07 of 1999.

3) Facts of the case need mention, in brief, infra

to appreciate the controversy involved in the appeal.

4) The appellant is the landlady of the shop being

Shop No. 6 situated on the Dodhpur Road, Aligarh,

Building No. 4/569B. The respondent is the tenant

in  Shop  No.  6  and  doing  business  of  selling

Footwear (shoes and sandals) in the name of Khan

Brothers on a monthly rent of Rs.100/-.

5) There  are  in  all  7  shops  in  the  building  in

which suit shop in situated. Except Shop No.7, all

are occupied by different tenants. Shop No. 7 is in

occupation of  the  appellant  wherein her  daughter

Dr.  Naheed  Parveen  is  doing  medical  practice.

Initially, Shop No. 7 was occupied by the husband

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of  the  appellant,  Dr.  Ahsan  Ahmed,  who  was

practicing medicines in the said shop and after his

death,  the  said  shop  remained  closed  for  about

two-three years and after that her daughter started

practicing medicines there.

6) According to the appellant, Shop No. 7 is about

16.9 ft. x10 ft. in area and is inadequate for running

clinic.

7) On  11.02.1994,  the  appellant  personally

requested the respondent to vacate Shop No. 6 but

he did not vacate. Therefore, the appellant filed an

application under Section 21(1)(a) of Uttar Pradesh

Urban  Buildings  (Regulation  of  Letting,  Rent  and

Eviction) Act, 1972 (hereinafter referred to as “the

Act”) in the Court of the Prescribed Authority/Civil

Judge, Senior Division, Aligarh being U.P.U.B. Case

No. 13 of 1994 seeking release of Shop No. 6 in her

favour for  her  bona fide requirement and genuine

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need in comparison to the need of the respondent. It

was alleged that the appellant’s daughter, who is a

doctor and running her private clinic in Shop No. 7

is  finding  it  difficult  and inconvenient  to  run the

clinic due to space constraint in Shop No. 7 and it is

for this reason she requires adjacent Shop No. 6 so

that  both Shops,  i.e.,  6  and 7  could  be  used for

running the clinic in a comfortable manner. It was

also alleged that the appellant’s one son has done

his MBBS and is doing M.D. He too would do his

practice in the shop in question. It was alleged that

there would be no space constraint once both the

Shops  (6&7)  are  clubbed  together.  It  was  further

alleged  that  the  appellant  has  no  other  shop

available except Shop No. 6 which is most suitable

for expansion of clinic being next to Shop No. 7. It

was also alleged that the respondent is having his

own shops in the same area and hence even if he

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vacates  the  shop  in  question,  there  will  be  no

hardship to him.  

8) The respondent filed his written statement to

the  application  denying  the  need  of  the

appellant-landlady as  bona fide or genuine. Parties

adduced evidence.  

9) By  order  dated  04.03.1999,  the  Prescribed

Authority allowed the application and directed the

respondent-tenant  to  vacate  the  shop in  question

within 3 months of the date of the order and to give

the vacant possession to the appellant-landlady and

also pay by way of damages two years’ rent amount

within 30 days from the date of  the order.  It was

held that the appellant’s need for using Shop No. 6

is bona fide and genuine and that it is required for

expansion of clinic run by the appellant’s daughter

in Shop No.  7 and her  son.  It  was held that  the

appellant has no other suitable shop in city where

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her daughter/son can run their clinic. It was also

held  that  the  respondent  has  other  shops  for

running  his  business  in  the  same  locality  and,

therefore, there would be no hardship caused to the

respondent.  

10) Felt  aggrieved  by  the  said  order,  the

respondent-tenant  filed  an  appeal  being  U.P.U.B.

Appeal No. 7 of 1999 under Section 22 of the Act

before  the  Additional  District  Judge,  Aligarh.  By

order dated 02.02.2000, the appellate court allowed

the appeal and set aside the order dated 04.03.1999

on  the  ground  that  the  Presiding  Officer  has  no

jurisdiction to pass the order.

11) Against  the  said  judgment/order  dated

02.02.2000,  the  appellant-landlady  filed  C.M.W.P.

No. 10669 of 2000 before the High Court. The High

Court  by  order  dated  18.02.2011  allowed  the

petition and set aside the order dated 02.02.2000

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and remanded the matter to the appellate Court for

deciding the same on merits in accordance with law.

12) Thereafter  by  order  dated  24.08.2011,  the

appellate  court  dismissed  the  appeal  (U.P.U.B.

Appeal No. 7 of 1999) of the respondent-tenant and

confirmed the order dated 04.03.1999 passed by the

Prescribed Authority.  

13) Feeling  aggrieved  by  the  said  order,  the

respondent-tenant filed C.M.W.P. No. 65612 of 2011

before the High Court.

14) By impugned judgment dated 17.01.2012, the

High Court allowed the writ petition and set aside

the  order  dated  04.03.1999  of  the  Prescribed

Authority  and  order  dated  24.08.2011  dismissing

the  appeal  of  the  respondent-tenant.  The  High

Court held that firstly, the appellant’s daughter- Dr.

Naheed  Parveen  is  not  a  member  of  family  as

defined under Section 3(g) of the Act because she is

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a married daughter whereas Section 3(g)(iii) include

only an “unmarried daughter”. Secondly, it was held

that  for  this reason, the appellant could not seek

eviction for the need of her married daughter; and

lastly, it was held that the appellant’s need is not

bona fide.  

15) Against  the  said  judgment,  the

appellant-landlady has filed this appeal by way of

special leave before this Court.

16) Heard  Mr.  Salman  Khurshid,  learned  Senior

Counsel,  for  the  appellant  and  Mr.  V.K.  Garg,

learned senior counsel, for the respondent.  

17) Mr.  Salman  Khurshid,  learned  counsel  for  the

appellant  (landlady)  while  assailing  the  legality  and

correctness  of  the  impugned  judgment  of  the  High

Court urged three submissions.

18)   His first submission was that the High Court

erred in allowing respondent's writ petition by setting

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aside  the  order  of  the  appellate  court  and  the

Prescribed Authority and thereby erred in dismissing

the appellant's eviction petition filed under Section 21

of the Act.

19) His second submission was that the High Court

erred in holding that the married daughter of landlady

does  not  fall  within  the  definition  of  an  expression

"Family" as defined in Section 3 (g) of the Act.  Learned

counsel urged that the High Court failed to notice that

the definition of "family" is an inclusive definition and

includes  therein  "any  female  having  a  legal  right  of

residence in the building (tenanted accommodation)".

Learned  counsel  pointed  out  that  since  it  was  an

admitted fact that the appellant's husband (Muslim by

religion)  died  intestate  leaving  behind  daughter-Dr.

Naheed Parveen as one of his heirs, she inherited an

undivided but specific ownership right and interest in

the suit  building as provided in Mahomedan Law of

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inheritance. Learned counsel contended that the word

"female"  used  in  the  definition  of  family  would,

therefore, include  "daughter" regardless of the fact as

to whether she is married or not provided she is able to

show  that  she  has  an  interest  in  the  suit  building

which, in turn, entitles her to claim a right of residence

in such building. It was urged that the daughter of the

appellant  did inherit  interest  in the suit  building as

one of  the  co-owners  which,  in  turn,  entitles  her  to

claim a right of residence in the suit building by virtue

of she being a female.  

20) His third submission was that when two courts

below, i.e., Prescribed Authority and the first appellate

court  after  appreciating  oral  and  documentary

evidence, held that the appellant's need was genuine

and bona fide and that she has no other suitable shop

of her own in the city where her daughter could shift

her clinic and lastly, since the respondent (tenant) is

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having  his  more  than  one  alternative  suitable  shop

near to the suit shop, the appellant is entitled to claim

the respondent’s eviction from the suit shop,  the High

Court while hearing writ petition under Article 227 of

the Constitution of India had no jurisdiction to upset

the concurrent findings of fact. It was urged that these

concurrent findings were binding on the High Court.

Learned  counsel  further  urged  that  it  was  more  so

because  the  findings  were  neither  perverse  to  the

extent that no average judicial person could ever reach

to such conclusion nor these findings were against any

provisions  of  law  and  not  against  pleadings  or

evidence.       

21) In  reply,  learned  counsel  for  the  respondent

(tenant)  supported the reasoning and the conclusion

arrived  at  by  the  High  Court  and  urged  that  the

impugned judgment does not suffer from any error.

22) Having heard the learned counsel for the parties

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and on perusal of the record of the case, we find force

in the submissions urged by learned counsel for the

appellant.

23) Two  questions  arises  for  consideration  in  this

appeal, first, whether the High Court was justified in

reversing  the  concurrent  findings  of  the  two  courts

below  and  thereby  was  justified  in  dismissing  the

appellant's  eviction  petition  filed  against  the

respondent under Section 21 of the Act by holding that

the  appellant's  need  set  up  in  the  petition  for  her

daughter was not  bona fide; and second, whether the

finding that the appellant's married daughter does not

fall within the meaning of the word "family" as defined

under Section 3(g) of the Act and, therefore, her need

cannot be considered under Section 21 of the Act for

granting eviction of the tenant is proper or not?

24) Coming  to  the  second  question  first,  in  our

opinion,  its  answer  depends  upon  the  proper

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interpretation of the definition of the word "family" as

defined in Section 3(g) of the Act. It reads as under:   

“3(g)  “Family”,  in  relation  to  a  landlord  or tenant of a building, means, his or her- (i) spouse; (ii) male lineal descendants; (iii) such  parents,  grandparents  and  any

unmarried  or  widowed  or  divorced  or judicially  separated  daughter  or daughter of a male lineal descendant, as may have been normally residing with him or her,

and includes,  in relation to a landlord,  any female  having  a  legal  right  of  residence  in that building;”

25) Perusal of the afore-quoted definition would go to

show that family in relation to landlord or tenant of a

building  would  include  (1)  spouse  (2)  male  lineal

descendants  (3)  such  parents,  grandparents,

unmarried  or  widowed  or  divorced  or  judicially

separated  daughter  or  daughter  of  a  male  lineal

descendant  as  may  have  been  residing  with  the

landlord.  The  definition  further  says,   "Family”

includes in relation to landlord, any female having a

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legal right of residence in that building.

26) The  inclusive  part  of  the  definition,  which  is

enacted only for the benefit of “female” in relation to

the  landlord,  adds  one  more  category  of  person  in

addition to those specified in clauses (i) to (iii), namely,

“any female having a legal  right of  residence in that

building”.  

27)  A fortiori, any female, if she is having a legal right

of  residence  in  the  building,  is  also  included in  the

definition of “family” in relation to landlord regardless

of  the  fact  whether  she  is  married  or  not.  In  other

words,  in  order  to  claim  the  benefit  of  expression

"family", a female must have a "legal right of residence"

in the building. Such female would then be entitled to

seek eviction of the tenant from such building for her

need.

28)  Coming  to  the  facts  of  this  case,  it  is  not  in

dispute that Dr. Ahsan Ahmad was the original owner

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of  the  building  in  question.  He  died  intestate  and,

therefore,  on his death,  the appellant,  two sons and

four daughters inherited the estate left by Dr. Ahsan

Ahmad, which included the building, in question.

29) Since  Dr.  Ahsan  Ahmad  was  Mahomedan,  his

entire  estate  including  the  building  in  question,

devolved on the appellant (wife), his two sons and four

daughters as per the shares defined in Hanafi Law of

Inheritance. The shares of the heirs which are defined

in  the  Table  in  Chapter  VII  titled   "Hanafi  Law  of

Inheritance"   (at  page  66-A  of  Mulla-Principles  of

Mahomedan  Law-20th  Edition)  would  show  that

daughter is also entitled to claim her specific share in

her father’s estate. The daughter’s share is defined in

column Nos.  2,  3  and 4 at  serial  number 7,  in  the

table. It reads as under:

  (1) Sharers

             (2)        Normal Share

       (3) Conditions under which the normal share is inherited

       (4) This  column  sets out- (A)  Shares  of

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Sharers  Nos. 3,4,5,8 and 12 as varied  by  special circumstances; (B)  conditions under  which sharers  Nos. 1,3,7,8,11 and 12 succeed  as Residuaries

Of one Of  two  or more collectively (b)

7. Daughter 1/2   2/3 When no son [With  the  son she  becomes  a residuary:  see Tab.  Of Res.,No.1]

30) Dr.  Naheed  Parveen  being  the  daughter,

accordingly, received her share and became co-owner

of  the building along with other  co-sharers.  Being a

co-owner,  she  got  a  legal  right  of  residence  in  the

building as provided under Section 3(g) of the Act. In

this way, she fulfilled the definition of “family” under

Section 3 (g) of the Act.

31) In the light of foregoing discussion, we are unable

to  agree  with  the  reasoning  of  the  High  Court  and

while reversing the finding answer the second question

in  appellant's  favour  and  accordingly  hold  that  the

appellant  was  entitled  to  claim  eviction  of  the

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respondent from the building in question for the need

of her daughter Dr.  Naheed Parveen for running her

clinic  as  the  daughter  was  having  a  legal  right  of

residence in the building in question.

32) This takes us to examine the first question as to

whether  the  High  Court  was  justified  in  its  writ

jurisdiction to reverse the concurrent findings of  the

two  courts  below  and  was,  therefore,  justified  in

holding  that  the  appellant's  (landlady)  need  for

expansion of clinic run by her daughter was not bona

fide.    

33) The Constitution Bench of this Court settled the

law  relating  to  exercise  of  jurisdiction  by  the  High

Court while deciding revision in rent matters under the

Rent  Control  Act  in  Hindustan  Petroleum  Corpn.

Ltd.  vs.  Dilbahar  Singh, (2014)  9  SCC 78,  Justice

R.M. Lodha, the learned Chief Justice  speaking for the

Bench held in para 43 thus: (SCC pp. 101-102)

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“43. We hold, as we must, that none of the  above  Rent  Control  Acts  entitles the  High  Court  to  interfere  with  the findings  of  fact  recorded  by  the  first appellate court/first appellate authority because  on  reappreciation  of  the evidence, its view is different from the court/authority  below.  The consideration  or  examination  of  the evidence  by  the  High  Court  in revisional jurisdiction under these Acts is confined to find out that finding of facts  recorded  by  the  court/authority below is according to law and does not suffer from any error of law. A finding of  fact  recorded  by  court/authority below, if perverse or has been arrived at without  consideration  of  the  material evidence or such finding is based on no evidence or misreading of the evidence or is grossly erroneous that, if allowed to  stand,  it  would  result  in  gross miscarriage  of  justice,  is  open  to correction because it is not treated as a finding according to law. In that event, the  High  Court  in  exercise  of  its revisional jurisdiction under the above Rent Control  Acts shall  be entitled to set aside the impugned order as being not legal or proper. The High Court is entitled  to  satisfy  itself  as  to  the correctness  or  legality  or  propriety  of any decision or order impugned before it  as  indicated  above.  However,  to satisfy  itself  to  the  regularity, correctness, legality or propriety of the impugned  decision  or  the  order,  the High Court shall not exercise its power as an appellate power to reappreciate or reassess the evidence for coming to a

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different  finding  on  facts.  Revisional power  is  not  and  cannot  be  equated with the power of reconsideration of all questions  of  fact  as  a  court  of  first appeal.  Where  the  High  Court  is required  to  be  satisfied  that  the decision  is  according  to  law,  it  may examine  whether  the  order  impugned before  it  suffers  from  procedural illegality or irregularity.”

34) Coming now to the facts of this case, keeping in

view  the  principle  of  law  laid  down  in  the

aforementioned case and on perusal of the order of the

Prescribed  Authority/Civil  Judge  and  the  first

appellate court, we find that both the courts properly

appreciated  the  facts  and  evidence  adduced  by  the

parties  and  on  that  basis  recorded  all  necessary

findings (detailed above) in favour of the appellant and

granted decree of eviction against the respondent. This

the  Prescribed  Authority/Civil  Judge  and  the  first

appellate court could do in their respective jurisdiction

and, in our opinion, both the courts rightly did it in

the facts of this case.

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35) Likewise,  when  we  peruse  the  impugned

judgment,  we  find,  as  rightly  urged  by  the  learned

counsel for the appellant,  the High Court did not keep

in mind the aforesaid principle of law laid down by the

Constitution Bench in  Hindustan Petroleum Corpn.

Ltd.  (supra) so also the  principle  laid down by this

Court  in  relation  to  exercise  of  jurisdiction  under

Article  227  of  Constitution  of  India  in  the  case  of

Surya Dev Rai vs. Ram Chander Rai & Ors., (2003) 6

SCC  675  while  deciding  the  writ  petition  and

proceeded to decide like the first appellate court. The

High Court as is clear from the judgment probed all

factual aspects of the case, appreciated evidence and

then  reversed  the  factual  findings  of  the  appellate

court and the Prescribed Authority. This, in our view,

was  a  jurisdictional  error,  which  the  High  Court

committed  while  deciding  the  writ  petition.  In  other

words,  the  High  Court,  in  our  view,  should  have

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confined  its  inquiry  to  examine  as  to  whether  any

jurisdictional  error  was  committed  by  the  first

appellate court while deciding the first appeal. It was,

however, not done.  

36) In  our  considered  opinion,  the  question  in

relation  to  the  bona  fide need  of  the  appellant's

daughter to expand the activities of running the clinic

was rightly held by the Prescribed Authority and the

first  appellate Court in appellant’s favour by holding

the appellant’s need to be  bona fide and genuine. We

find no ground on which the High Court could have

upset  the  concurrent  finding  on this  question in its

writ jurisdiction under Article 227, which is more or

less akin to revisional jurisdiction of the High Court.

The High Court also failed to hold that finding of the

two courts were so  perverse to the extent  that  any

judicial person could ever reach to such conclusion or

that the findings were against any provision of law or

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were contrary to evidence adduced etc.   

37) The High Court, in our view, should have seen, as

was  rightly  held  by  the  two  courts  below,  that  the

appellant's  daughter  had  been  running  her  medical

clinic in shop No. 7 for quite some time. This fact was

not in dispute. Though a feeble attempt was made by

the  respondent  contending  that  after  appellant's

daughter's  marriage,  she  has  started  living  in

Moradabad and, therefore, her need to run the clinic

and expand its activity is not  bona fide but this plea

did not find favour with Prescribed Authority and the

first appellate Court and, in our view, this being a pure

finding of fact, was binding on the High Court in its

writ jurisdiction.  

38) In our considered opinion,  the  appellant's  need

for  additional  space  for  the  expansion  of  clinic

activities for her daughter cannot be said to be unjust

or unreasonable in any manner. It is for the reasons

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that, firstly, the suit shop No.6 is adjacent to Shop No.

7 and secondly, the need for expansion of clinic could

be accomplished effectively only  with the use of  two

shops, which are adjacent to each other. It is a well

settled  principle  laid  down  by  this  Court  in  rent

matters that the landlord is the sole judge to decide as

to how much space is needed for him/her to start or

expand  any  of  his/her  activity.  This  principle  was

overlooked by the High Court while deciding the issue

of need. That apart, the High Court should have also

seen that the two courts below have recorded a finding

that the respondent was having his own shops in the

same area where he could shift his existing business

activity without suffering any comparative hardship.  

39) In the light of aforementioned factual findings of

the  courts  below,  in  our  view,  there  was  no

justification  on  the  part  of  the  High  Court  to  have

probed  into  any  factual  issues  again  in  depth  by

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undertaking  appreciation  of  evidence  like  a  first

appellate court and reversed the findings.    

40) In view of foregoing discussion, we are unable to

agree with the reasoning and the conclusion arrived at

by  the  High  Court.  The  impugned  judgment  is,

therefore, not legally sustainable and is accordingly set

aside.  As  a  result,  the  order  dated  04.03.1999  of

Prescribed  Authority  in  U.P.U.B.  No.  13/1994  and

order  dated  24.08.2011  of  the  Additional  District

Judge,  Aligarh  in  U.P.U.B.  Appeal  No.  7/99  are

restored.  The respondent is, however, granted three

months’ time to vacate the suit shop from the date of

this  order  subject  to  furnishing  of  the  usual

undertaking in this Court to vacate the suit premises

within 3 months and further, the respondent would in

addition  to  the  directions  given  by  the  Prescribed

Authority also deposit all arrears of rent till date at the

same rate at which he had been paying monthly rent

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to the appellant (if there are arrears) and would also

deposit  three  months’  rent  in  advance  by  way  of

damages for use and occupation as permitted by this

Court. Let the undertaking, arrears of rent, damages

for  three  months  and  compliance  of  direction  to

deposit damages by Prescribed Authority and the cost

awarded by this Court be deposited within one month

from the date of this order.

41) The  appeal  is  accordingly  allowed  with  cost,

which is quantified at Rs.10000/-, to be paid by the

respondent to the appellant.     

                  ………...................................J.    [J. CHELAMESWAR]

                             …...……..................................J.

 [ABHAY MANOHAR SAPRE] New Delhi; September 27, 2016     

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