JUDGMENT Rakesh Tiwari, J.
1. Heard earned Counsel for the petitioner and perused the record.
2. The petitioner claims to be daughter of Mohd. Mustafa Khan. She is married to one Aftab Ahmad and is residing with him at 349, Khalapar Dak8hlni. Muzaffamagar. The dispute in this writ petition is regarding rent and eviction of respondent Nos. 3 to 5 from the shop in dispute. Respondent Nos. 3 and 4 are sons of Mohd. Mustafa Khan whereas respondent No. 5 is the wife of Mohd. Mustafa Khan. All the three respondent Nos. 3 to 5 are residents of 501, Khalapar, Muzaffamagar. Thus, the petitioner is sister of respondent Nos. 3 and 4 and daughter of respondent No. 5 Smt. Shamim Bano and Mohd. Mustafa Khan.
3. The accommodation in dispute is a commercial shop and not a commercial building. Respondent Nos. 1 and 2 filed a release application registered as P.A. Case No. 4 of 2004 against respondent Nos. 3 to 5. The release application was allowed by the prescribed authority vide order dated 17.1.2005. Aggrieved, respondent Nos. 3 to 5 filed appeal which was also dismissed vide order dated 16.4.2005. Against the order dated 16.4.2005, a writ petition was filed by respondent Nos. 3 to 5 which too was dismissed vide order dated 23.12.2005. Thereafter the decree was put to execution by respondent-landlord Nos. 1 and 2. In the execution proceedings the petitioner filed objections.
4. The case of the petitioner before the court below was that originally Jameel Khan and Sharif Khan, sons of Vilayat Khan, were tenants and one Mahabir Singh was the landlord who sold the property by virtue of a registered sale deed to Kaushalya Devi on 31.3.1956 and Kaushalya Devi thereafter filed O.S. No. 49 of 1957 against Sharif Khan and Ors. During the pendency of those proceedings Jameel Khan expired and his heirs and legal representatives had been impleaded to the execution proceedings. However, a compromise had been arrived at between the parties in the execution proceedings. The case of the petitioner further was that after the death of Jameel Khan all the heirs of Jameel Khan became statutory tenants. It is further alleged by the petitioner that she is also in possession of the property and in the P.A. Case No. 4 of 2004 she was not impleaded as a party and as such she cannot be evicted and the application under Section 23 is liable to be dismissed. The grievance of the petitioner is that the execution proceedings are pending and without deciding the objection of the petitioner the Prescribed Authority/Civil Judge (Senior Division), Muzaffarnagar, has passed an order directing the Amin to dispossess her and other tenants.
5. The petitioner submits that after the death of Jameel Khan all his heirs and legal representatives became joint tenants and after the death of Mohd. Mustafa Khan the petitioner being his daughter was entitled to be substituted in his place and since the petitioner was not made a party to the proceedings, the proceedings are bad and the executing court ought to have decided the objection before passing the impugned order. The petitioner claims to be tenant under Section 3 of U.P. Act No. XIII of 1972 and ought to have been impleaded as a party to the proceedings and the objection of the petitioner was liable to be decided before passing the impugned order.
6. The petition has been filed on the ground that she is 'heir' as defined under Section 3(2) of U.P. Act No. XIII of 1972. Section 3 which defines tenant' is as under:
3. In this Act, unless the context otherwise requires:
(a) "tenant", in relation to a building, means a person by whom its rent is payable, and on the tenant's death:
(1) in the case of a residential building, such only of his heirs as normally resided with him in the building at the time of his death;
(2) in the ease of a non-residential building, his heirs];
Explanation.--An occupant of a room in a hotel or a lodging house shall not be deemed to be a tenant].
7. It is urged that the Civil Judge (Senior Division) has passed the impugned order without considering the objection of the petitioner vide order dated 26.9.2006. The petitioner has come up in this writ petition against the aforesaid order dated 26.9.2006.
8. I have considered the submissions of the earned Counsel for the petitioner.
9. The definition of 'tenant' given under Section 3 aforesaid of U.P. Act No. XIII of 1972 has to be read with Section 3(g) which defines "family" as under:
"family" in relation to a landlord or tenant of a building, means, his or her:
(i) spouse,
(ii) male lineal descendants,
(iii) such parents, grand-parents 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 or residence in that building.
10. The Legislature has used the word "means" in the definition of "family". It is a settled law that when a word is defined to mean something in the definition, it is prima facie restrictive and exhaustive, i.e., nothing more can be read into the definition than what has been defined. Thus, under Section 3(g) read with Section 3(a) married daughters would be excluded. Thus, married daughters have been excluded from the definition of "family".
11. Moreover, the petitioner is residing with her husband in a separate residential building. It has not been averred in the writ petition that rent is payable by her or that she has ever paid rent to the respondent-landlords. It appears that the release application has been filed against the brothers and mother of the petitioner by the landlord-respondents who fall within the meaning of "tenant" and "family" under the Act and against whom the release application has been allowed. The petitioner is not aggrieved by the aforesaid order allowing the release application as she is not residing in the said building nor is she in the occupation of the shop, hence she has neither any vested right in the shop in dispute nor any cause of action arose for raising the objection.
12. It appears that the objection has been raised by the petitioner only as peshbandi to support respondent Nos. 3 to 5 in delaying the proceedings in the court below by stating that after the death of her father Mohd. Mustafa Khan the petitioner being daughter was entitled to be substituted and since she was not made party to the proceedings, they are bad and that the prescribed authority ought to have decided the objection before passing the impugned order.
13. In my opinion, there is no violation of her rights in passing the impugned order which do not in fact exist in her favour as stated above for the simple reason that tenancy could not have been devolved upon the petitioner as stated earlier. Since it has never been the case of the petitioner before the court below that she has ever paid rent of the shop after death of her father Mohd. Mustafa Khan or that it was payable by her, she is not a tenant. Moreover, she is not doing business in the shop in dispute with her brothers and mother after her marriage; as such it would be deemed that she has surrendered her tenancy right.
14. Per contra, she is living independently with her husband and her family after her marriage in a separate home bearing no nexus with the business of respondent Nos. 3 to 5.
15. Since married daughters have been specifically excluded from the definition of "family" the tenancy would not devolve upon her as a matter of right. For other purposes under the personal law she may have a right but for claiming tenancy right she is excluded by the statute.
16. For the reasons stated above, the petition is dismissed. No order as to costs.