JUDGMENT B. K. Sharma, J.
1. Detailed arguments have been advanced in this appeal on the question of admission which includes the questions whether any substantial questions of law arise in this appeal as are required under Section 100 of the Code of Civil Procedure.
2. The basic facts may be stated first. P.A. Case No. 77 of 1972 for release under Section 21 of the Act 13 of the 1972 was filed by Sri Devki Nandan (since deceased respondent Nos. 1 to 7 being his L. Rs-) versus Sri Guru Bachan Singh and others. In which Sri Sant Ram present respondent No. 8 was one of the defendant as tenant of a part of the premises 15 Ghosi Gali, Dehradun. The release application was duly allowed vide order of the Prescribed Authority on 27.3.1976. Both the tenants Sri Guru Bachan Singh etc. and Sri Sant Ram filed appeal on 20.4.1976 and vide order of the appellate court dated 18.10.1976,the case was remanded to the learned Prescribed Authority for decision afresh in the light of the observations made in the judgment. The Prescribed Authority again allowed the application for release on 11.7.1977. The Rent Control Appeal Nos. 133 of 1977 and 134 of 1977 were filed by Smt. Jaswant Kaur (L.R. of Gurbachan Singh) and Sri Sant Ram respectively, which were decided by the then learned District Judge on 19.12.1977 by which the order of release made by the Prescribed Authority dated 11.7.1977 was upheld. Both the defeated tenants Smt. Jaswant Kaur and Sri Sant Ram filed writ petition before the High Court against the order of the then learned District Judge dated 19.12.1977. The writ petition of Sri Sant Ram was registered as Civil Misc. Writ Petition No. 190 of 1978 and the High Court ultimately vide order dated 19.10.1979 dismissed the writ petition and allowed six months time to the petitioner Sri Sant Ram.
The six months time was to exhaust on 19.4.1980.
3. The Original Suit No. 53 of 1980 was then filed by Smt. Raj Kaushalya (since deceased) on the ground that a part of the property No. 15 Ghosi Gali, Dehradun was allotted to her by the then Rent Control & Eviction Officer and since then she is tenant on the same. It has also been alleged that one Uddoo Mochi was the landlord of the premises and she was paying rent to him against the receipt's duly issued by him (Uddoo Mochi). That somewhere in the year 1953, the said building was allegedly purchased by Sri Devki Nandan (since deceased) and he became the landlord and that her elder son Sri Sant Ram had no concern with the said tenancy and that she had no good relations with her son Sri Sant Ram, that Sri Devki Nandan in collusion with her son Sri Sant Rani has filed the prescribed authority Case. No 77 of 1972 for eviction and ultimately got the order of release which was confirmed upto the High Court and when the landlord Sri Devki Nandan asked her to vacate the premises on 18.3-1980 then and only then, she came to know of the release order in the Prescribed Authority case filed by the landlord against her son Sant Ram and after making inquiry she filed the suit for declaration and injunction. The defendant/landlord Devki Nandan filed written statement alleging that Smt. Raj Kaushalya was never tenant of the disputed premises and the business at that disputed shop was being carried on exclusively by Sri Sant Ram and the proceedings in the Prescribed Authority case was rightly instituted against Sri Sant Ram who very vehemently contested the case for long seven years and even knocked the doors of the High Court by way of writ petition, which was ultimately dismissed with a direction to vacate the premises within six months., It was also stated that Smt. Raj Kaushalya never paid rent of the disputed property to the landlord and she was never recognised to be a tenant by the present landlord.. In the alternative, it was pleaded that even if she had been a tenant since the time of Uddo Mochi, still she surrendered her tenancy right completely and Sri Sant Ram became tenant. It was also alleged that the case of the plaintiff Smt. Raj Kaushalya was barred by the principle of estoppel and acquiescence.
4. The learned trial court recorded a finding of fact that the plaintiff Smt. Raj Kaushalya (since deceased) was the tenant of the part of the property 15 Ghosi Gali and on her death, that present plaintiffs-appellants and respondent No. 8 have inherited the tenancy right on her death and have become lawful tenant of the disputed property, that the suit is not barred by the principles of acquiescence and estoppel and that the plaintiffs of the suit cannot be evicted in execution of the decree passed in P.A. Case No. 77 of 1972 and so ultimately decreed the suit for the said plaintiffs vide order dated 21.11.1990.
5. Against the said judgment and decree Civil Appeal No. 2 of 1991 was preferred by Jaswant Singh and others present respondent Nos. 1 to 7 who were the heirs of Devkinandan, landlord. In this appeal the learned Additional District Judge, Dehradun after a detailed discussion of the evidence, the circumstances and the legal position upset the findings of the learned trial court. He found that the evidence on record reveals that Sri Sant Ram was carrying on business at the disputed premises at all relevant times and that in P.A. Case No. 77 of 1972 he had claimed that previously his mother was the tenant but later on he became the tenant : that the fact that he filed three receipts from his possession which were issued by previous landlord in favour of Smt. Kaushalya made it clear that Sant Ram and Smt. Kaushalya had no strained relations inter se ; that at all relevant time Sri Sant Ram was carrying on business of charcoal at the disputed property and that Smt. Raj Kaushalya from the very beginning knew about the pendency of the prescribed authority case. He also found that the licence of the charcoal business was in the name of Sri Sant Ram and the payment of rent was sent by Sri Sant Ram to the landlord. He also found that Smt. Raj Kaushalya, if at alt she was a tenant, had surrendered the tenancy and at that relevant times she was not tenant at all. He held that the plaintiffs has filed the suit in collusion with Sant Ram. He observed on the basis of a large number of authorities cited by him in his judgment that tenancy can be surrendered by operation of law and implied surrender is the expression used to describe all those cases where the law implies a surrender from unequivocal conduct of both parties which is inconsistent with the continuance of the existing tenancy. He also observed that the legal position supported by the authorities is that the surrender of tenancy can be expressed or implied, he also found that the suit was barred by principles of estoppel and acquiescence since as a fact. Smt. Raj Kaushalya had knowledge of the pendency of the prescribed authority case in between Devkinandan and Sant Ram and that she had not tried to get herself impleaded as a party and so her conduct was such as to estop her from challenging the tenancy rights of Sant Ram. The learned lower appellate court also took into consideration another aspect of the case that even assuming that Smt. Raj Kaushalya was tenant uptil her death. her legal representatives, including Sant Ram aforesaid, became Joint tenants. He cited the authority of Apex Court in support of the proposition and concluded that they cannot be treated to be independent tenants and since one of the Joint tenants Sri Sant Ram had admittedly contested the earlier proceedings hotly upto the High Court, it is not open for the rest of them to challenge the validity of the release order which was confirmed even by the High Court. He consequently allowed the appeal, set aside the judgment and decree of the trial court and dismissed the suit.
6. The argument of the learned counsel for the appellants in this second appeal is that Smt. Raj Kaushalya, being the allottee from the Rent Control' Eviction Officer, her rights were to continue and that the finding of the lower appellate court about the implied surrender of tenancy was illegal inasmuch as there is no provision for surrender of tenancy in Act 13 of 1972. He has pointed out that in Act 13 of 1972, there is provision of a deemed vacancy in Section 12 and then there is a provision for allotment of the accommodation under Section 16 of U. P. Act No. 13 of 1972 and that unless there is declaration of a deemed vacancy and there is an allotment, there is no question of Sant Ram becoming tenant of the disputed accommodation. He has placed reliance on Section 38 of Act No. 13 of 1972 in support of his contention that there could be no surrender of tenancy rights as the provisions of T. P. Act were excluded by reason of Act No. 13 of 1972. It is further argued that since Smt. Raj Kaushalya was not a party to the proceedings against Sant Ram, the decree or orders in those proceedings would not bind her and that, infact all judgments and decree were a nullity as she was a tenant all along. The lower appellate court has cited authorities in his Judgment in support of his view that the surrender of tenancy rights could be implied under law from the conduct of the parties which is inconsistent with the continuance of the original tenancy. Even assuming that the provisions of Act 13 of 1972 were to be applicable. Section 38 of Act No. 13 of 1972 overrides the T. P. Act only to the extent of inconsistency with the express provisions of Act No. 13 of 1972. The learned counsel for the appellants has not been able to show any provision in Act No. 13 of 1972 providing that the tenancy right cannot be surrendered. Such a surrender can be implied under law by the conduct of the parties. As a matter of fact, the provision of Section 12 of Act No. 13 of 1972 is a recognition of the principle that a surrender of tenancy right could be implied from the conduct of the tenant when he had substantially removed his effects from the accommodation or has allowed it to be occupied by other or in certain other contingencies. Here we are not concerned whether a deemed vacancy took place under Section 12 of the Act 13 of 1972 and whether an allotment has been made in favour of Sant Ram in respect of disputed premises under Section 16 of Act No. 13 of 1972. In this case the crucial question is not whether Sant Ram became a tenant of the disputed shop under law or not. The question is whether Smt. Raj Kaushalya was the tenant on the date of suit. Her tenancy right would be taken to be surviving only in case the factual finding of the lower appellate court on the point of surrender of tenancy could be shown to be illegal and untenable. No such infirmity has been pointed out. A surrender of tenancy rights could be implied under law from the conduct of the parities and the inference in this regard by the lower appellate court was perfectly legitimate. Once the finding of fact of implied surrender of tenancy by Smt. Raj Kaushalya stands, her suit became wholly untenable and had to be dismissed and was rightly dismissed by the lower appellate court. We have already noted that it is immaterial that there was no allotment order in respect of the disputed shop in favour of Sant Ram at any stage. Sant Ram has lost the legal battle upto the High Court., The learned lower appellate court has given valid reasons for its conclusion that the suit is barred by estoppel and acquiescence and no exception can be legally taken to the same.
7. Another point is that the lower appellate court has considered the aspect of the case in view of the admitted fact that Smt. Raj Kaushalya had died during the pendency of the suit assuming that her tenancy rights allegedly continued upto her death and that so these will devolve upon her sons (the present plaintiffs-appellants and Sant Ram present respondent No. 8 in this appeal before us). The legal position has been rightly expressed by the lower appellate court in its judgment that in that case the heirs became joint tenants and not tenants-in-common and that when one of them Sant Ram had contested the earlier proceedings hotly upto the High Court, the other heirs of Smt. Raj Kaushalya cannot legally challenge the validity of the release order which was upheld upto the High Court. He has cited authorities in support of his view and the law is settled on the subject. So considering the arguments of the learned counsel for the appellants, in any case there is no substantial question of law involved in this case and the appeal has no force consequently this appeal has to be dismissed at the admission stage itself.
8. As a matter of fact Sri S K Gupta, learned counsel for the present defendant respondent Nos. 1 to 7 has pointed out that the suit of Smt. Raj Kaushalya in question was barred by Section 41(i) of the Specific Relief Act as the facts established in the suit as stated above show that the conduct of Smt. Raj Kaushalya _ and after her death, of her heirs had been such as to disentitle them to the assistance of the civil court. In my view the applicability of this provision iS quite clear from the established facts of the case and therefore, the suit had to be dismissed in all events and there is no legal ground to challenge the findings given by the lower appellate court.
9. The learned counsel for the present defendant-respondent Nos. 1 to 7 has also pointed out that it is clear from the findings of fact arrived at by the lower appellate court that the implied surrender of tenancy took-place prior to the date when Act No. 13 of 1972 came into force and so the U. P. Temporary Control and Eviction Act, 1947 (U. P. Act No. 3 of 1947) was applicable wherein the provisions about the control of letting were not at par with the provisions of Act No. 13 of 1972. Section 7 (1) (a) of Act No. 3 of 1947 enumerated various modes by which the tenancy could come to an end. It says that vacancy may arise by the tenant ceasing to occupy or vacating it or otherwise ceasing to occupy it or in any other manner whatsoever. There may be obligation to intimate vacancy but the arising of vacancy is not dependent on the giving of notice and it is immaterial whether a contract of tenancy could arise with Sant Ram without an allotment order from the Collector or not.
10. So there was no legal impediment in an implied surrender of tenancy by Smt. Raj Kaushalya and the learned lower appellate court rightly held that an implied surrender of her tenancy had taken place and that consequently her tenancy rights came to an end and she had no legal right to maintain the suit before the civil court and on her death no tenancy rights could devolve on her heirs and that even if her tenancy rights be taken to subsist uptil her death her heirs could become only Joint tenants in law and if Sant Ram (who incidentally even happened to be her eldest son) contested the release proceedings under Section 21 of Act No. 13 of 1972 and even preferred writ before the High Court and failed, the other heirs were bound by the result and were not entitled to challenge the same as not binding and seek relief against eviction in those proceedings. There is no doubt that it is a proxy and collusive litigation and the lower appellate court had rightly deprecated it.
11. To sum up in this case it cannot be said that there was any substantial question of law arising in this case. There is absolutely no ground to interfere with the judgment and decree passed by the lower appellate court.
12. The appeal, is consequently dismissed summarily at the admission stage itself.