Heard Sri Om Prakash holding brief of Sri S.C. Mandhyan, learned counsel for the petitioners and Sri Lalit Kumar, learned counsel for the respondent.
Petitioners filed Original Suit no. 334 of 1996 seeking relief of injunction on the ground that the petitioner no. 1 and his brother namely Ratan Prakash who are members of joint Hindu Family living in the same rented house from very inception should be declared as co-tenant.
Another SCC suit no. 63 of 1996 was filed by the respondent against Smt. Kanta Devi, widow of Ratan Prakash alleging that her husband was tenant in the house in dispute, that tenancy devolved upon her and she having permanently shifted to Agra has sublet the house to one Raj Kumar and that she had defaulted in payment of rent as such was liable to be evicted.
Respondent contested the Original Suit no. 334 of 1996 by filing written statement on the ground that there is evidence that the petitioners were not the tenants and that their tenancy was not for the benefit of Joint Hindu Family.
As regards the SCC suit no. 63 of 1996 was concerned, the petitioners filed their written statement denying the allegations regarding subletting as well as default of payment of rent. It was their stand that petitioner no. 1 and Ratan Prakash being brothers were living jointly in the house in dispute and as such were co-tenants. It was denied that Raj Kumar was a sub-lessee.
During pendency of the aforesaid proceedings Smt. Kanta Devi died and petitioner no. 1 Om Prakash was impleaded as her legal heir and representative. It was stated that she had died issueless and therefore tenancy right was inherited by heir of her husband namely Ratan Prakash, and in any case the tenancy would devolve upon him as he was the only legal heir and successor of Ratan Prakash and Smt. Kanta Devi. As regards petitioner no. 2 in the writ petition is concerned he is the son of petitioner no.1 Om Prakash.
Parties led their oral and documentary evidence. The trial court vide its judgment and order dated 29.9.2004 dismissed the Original Suit no. 334 of 1996 holding that the tenancy was not a Joint Hindu Family tenancy and Ratan Prakash was only tenant in the said accommodation. With regard to SCC suit No. 63 of 1996 it was held that notice terminating the tenancy was valid and that petitioner no. 2 was sub-lessee. It was further held that Om Prakash was only entitled as heir of Kanta Devi but not tenant in his own right.
Aggrieved, the petitioners filed Civil Appeal no. 128 of 2004 and SCC Revision no. 43 of 2004. The cases were consolidated together and the case was transferred to the Court of 1st Additional District Judge, Khurja, District Bulandshahar. The appeal has been dismissed whereas the SCC revision was partly allowed remanded back to the trial court for amendment in the decree in the light of the observations made in the judgment and for recovery of rent from Om Prakash the heir of Smt. Kanta Devi. The Court was directed to pass appropriate orders for eviction of the petitioner in accordance with law.
Being aggrieved, the petitioners have filed this writ petition praying for quashing of the impugned judgment and order dated 13.1.2006 passed by the 1st Additional District Judge, Khurja, District Bulandshahar and order dated 29.9.2004 passed by the Judge, Small Causes Court/Civil Judge (Senior Division), Khurja, District Bulandshahar which have been appended as Annexures No. 1 and 2 to the writ petition. A prayer for mandamus has also been made for directing the respondents not to give effect to the impugned judgment and order dated 13.1.2006 and 29.9.2004. Writ of prohibition has also been prayed for directing the Judge Small Causes Court/ Civil Judge (Senior Division), Khurja, District Bulandshahar not to proceed further with SCC suit No. 63 of 1996.
The impugned order has been challenged on the ground that the findings recorded by both the Courts below that tenancy was not a Joint Hindu Family is manifestly erroneous and are against evidence on record as according to the learned counsel for the petitioners it is proved that from the very inception of the tenancy Ratan Prakash and petitioner no. 1 Om Prakash who were real brothers were residing in the house in dispute and as such petitioner no. 1 was co-tenant and even otherwise the tenancy was for the benefit of Joint Hindu Family. It is stated that findings recorded by the Courts below that petitioner no. 2 is the sub-lessee is also erroneous in law as he is member of Joint Hindu Family and his status is also of co-tenant. It is however, submitted that notices given by the respondent terminating the tenancy is erroneous in law for the reasons that rent was being paid by petitioner no.1. though the receipts were issued in the name of his brother namely Ratan Prakash and even after his death, the rent receipts continued to be issued in his name which ought to have been issued in the name of Kanta Devi or the petitioner no.1. It is argued that as Kanta Devi has died and the petitioner No.1 was admittedly impleaded as her legal heir and representative, therefore on her death also the tenancy would otherwise devolve upon the petitioner no.1 as there being no other legal representative of the deceased is alive. It is lastly submitted that order of remand passed by the 1st Additional District Judge, Khurja, District Bulandshahar is an exercise in futility under the law as petitioner no. 1 being tenant is not liable to be ejected from the accommodation in dispute on the ground of default in payment of rent as there was no such default. It is stated that petitioner no. 1 being legal heir was entitled to notice terminating his tenancy which admittedly has not been given and hence the impugned orders and decrees passed by the Court below are passed on misreading and misconstruction of provisions under the law are liable to be quashed.
Per contra, learned counsel for the respondent has submitted that the petitioner no. 1 is not a dependent of the tenant. He has emphatically denied that Om Prakash petitioner no. 1 was living in the same rented house in question with Ratan Prakash and as such was not co-tenant. The factum of tenancy of Joint Hindu Family is also denied. As regards, the rent receipts are concerned, he stated that since the plaintiff Om Prakash and his son Raj Kumar were not living with Ratan Prakash they are not 'tenant' within the meaning of Section 3(a) of the Act which means a person by whom its rent is payable and on his death only heir normally resides with him in the rented portion.
Next contention of the learned counsel for the respondent is that plaintiff petitioner no.1 has not filed any evidence before the Court below to prove the fact that he was living with his brother Ratan Prakash since inspection of the tenanted portion or even at the time of his death. It is submitted that answering respondent had filed documentary evidence such as voter list in the courts below to establish the fact that Om Prakash and Ratan Prakash the two brothers were residing in two different residential houses/accommodation and as such the pleading of co-tenancy is not denied and is incorrect on the face of record.
On the question of devolving of co-tenancy it is stated that since the tenancy did not devolved upon the petitioners after the death of Ratan Prakash but on Smt. Kanta Devi, as the petitioners were not members of the family of the tenant as defined under Section 3(g) of the U.P. Act No. 13 of 1972 nor they were living with Ratan Prakash at the time of his death and the tenancy not being the Joint Hindu Family tenancy, the petitioners are not entitled to any relief.
After hearing learned counsel for the parties and on perusal of the record, a query was put by the Court to the learned counsel for the petitioners as to "how the joint tenancy is proved before the court below particularly when the evidence in this regard was not produced"? Learned counsel for the petitioners has been unable to give any reply.
From the perusal of the judgement, it is apparent that he Court below on appreciation of evidence recorded categorical findings of fact that Ratan Prakash and the petitioner Om Prakash who claims himself to be co-tenant were living in separate residential buildings. The petitioners, therefore are not tenant as defined in Section 3(a) or family of the tenancy when read with Section 2(g) of the Act. They cannot be said to be heirs of Ratan Prakash or Smt. Kanta Devi. The notice for determining the so claimed tenancy was found served upon petitioner no.1 on the ground that he was unauthorised person occupying/ holding over the accommodation in dispute in which his brother was living who had sublet the premises in dispute to the respondents. Both the Courts have recorded findings of fact that the petitioner Om prakash was neither a co-tenant with his brother Ratan Prakash nor any rent was payable by the petitioners or was paid to the landlord during the life time of Ratan Prakash as such Om Prakash and his son the two petitioners in this petition were sub-tenants of Ratan Prakash without the consent of the landlord. The rent was been paid by Ratan Prakash and then by his widow Smt. Kanta Devi to whom receipts were issued. This also go to show that rent was never paid by the petitioners nor any receipts were ever issued in their names but after the death of Smt. Kanta Devi.
For the above reasons, there appears to be no illegality or infirmity in the impugned order passed by the court below which have dismissed the Original Suit No. 334 of 1996 and decree in SCC suit no. 63 of 1996. Since the petitioners could not prove the factum that the tenancy claimed by them was tenancy of Joint Hindu Family. They are not entitled to any relief.
The writ petition is devoid of merit and is accordingly dismissed.
No order as to costs.
Order Date :- 10.2.2011 P.P.