This petition under Article 227 of the Constitution is directed against an order declaring vacancy dated 30.10.2018 followed by an order, rejecting a review of the vacancy order and granting release of the demised premises, passed under Section 15(1) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act No. 13 of 1972)1. Also impugned is a revisional affirmation of both these orders by the Additional District Judge, Court No. 13, Kanpur Nagar vide judgment and order dated 11.09.2020 passed in Rent Revision No. 36 of 2018.
2. The issue in this petition is about two adjoining shops located in a house bearing Premises No. 122/229, Sarojini Nagar, Kanpur Nagar. The said shops are hereinafter referred to as the 'shops in dispute'. The two shops were let out to one Sundar Singh, who died issue-less. He was unmarried. The owner and the landlady of the demised premises, Smt. Raj Katyal made an application dated 20.12.2017 before the Rent Control and Eviction Officer, Kanpur Nagar, seeking a declaration of deemed vacancy of the shops in dispute on ground that the tenant Sardar Sundar Singh had died on 21.10.2017 and after his death, his nephews, Gurmeet Singh and Ranjeet Singh had illegally occupied the said shops. It was stated that Gurmeet Singh and Ranjeet Singh were not members of the deceased-tenant's family. It was also said that Sardar Sundar Singh was unmarried, and, therefore, had neither left behind a wife or children. The occupation of the shops in dispute by Gurmeet Singh and Ranjeet Singh was claimed to be unlawful, giving rise to a deemed vacancy.
3. It was also asserted that the landlady required the shops in dispute bona fide for her need and that of her family. It was also said that at the appropriate stage, the landlady would make an application seeking release of the shops in dispute under Section 16(1)(b) of the Act of 1972. The Rent Control and Eviction Officer2 directed an inquiry to be made in the matter of vacancy by the Rent Control Inspector. The Rent Control Inspector submitted a report dated 25.01.2018 to the RC & EO. Gurmeet Singh and Ranjeet Singh, who are the petitioners here and faced prospects of the shops in dispute in their possession being declared vacant, filed objection dated 30.04.2018 in the vacancy matter. It was in substance said in the objection that the shops in dispute were rented out to the petitioners' uncle in the year 1967 by the then landlord. The late Sundar Singh, during his lifetime, had admitted the petitioners, his nephews, as partners in his business. In one of the shops, Ranjeet Singh was carrying on trade in watches along with his uncle whereas in the other, Gurmeet Singh was carrying on the trade of dealing in scrap, also along with his uncle. Thus, both the petitioners were in occupation of the two shops as partners with the deceased and lawful tenant thereof, the late Sundar Singh.
4. It was also asserted in the objections that the landlords have never raised any objection to the petitioners occupying and doing business in the shops in dispute over a period as long as 45 years. It was also asserted that after 20.12.2017, when Sardar Sundar Singh suffered from indifferent health, the petitioners had paid rent to the landlady, Smt. Katyal in the sum of Rs.25,000/-, though no receipt for the said rent was issued under the pretext of the plaintiff's receipt book not being by then available. It was also the petitioners' case set out in the objection that both of them had their electricity meters installed on the shop that each was doing business in showing the length and the settled character of their possession as the lawful occupants.
5. Parties exchanged pleadings and evidence in the vacancy matter and the RC & EO vide order dated 30.10.2018 passed in Case No. 2 of 2018, under Section 15(1) of the Act of 1972, declared the shops in dispute to be vacant. He ordered publication of the vacancy in a Hindi and English Daily, directing the matter to come up on 12.11.2018 for consideration of the release/ allotment matter. At this stage, the landlady made an application under Section 16(1)(b) of the Act of 1972 with a prayer to release the shops in dispute in favour of her daughter, Km. Charu Katyal.
6. Pending the release application, the petitioners moved an application for review before the RC & EO, seeking a review of the vacancy order dated 30.10.2018. The RC & EO rejected the review by means of his order dated 04.12.2018 and directed release of the shops in dispute in favour of the landlady. The petitioners challenged both the orders dated 30.10.2018 and 04.12.2018, last mentioned, by carrying a revision under Section 18 of the Act of 1972 to the District Judge, Kanpur Nagar. The revision aforesaid was registered on the file of the learned District Judge as Revision no.36 of 2018. The revision, on assignment, came up before the Additional District Judge, Court no.13, Kanpur Nagar, who proceeded to dismiss the same by his judgment and order dated 11.09.2020.
7. Aggrieved, Gurmeet Singh and Ranjeet Singh have instituted the present petition under Article 227 of the Constitution.
8. Pending this petition, Gurmeet Singh died and his heirs and legal representatives have been substituted as petitioner nos. 1/1, 1/2 and 1/3.
9. Heard Mr. Mohd. Aqueel Khan, learned Counsel for the petitioners and Mr. C.M. Rai, learned Counsel appearing on behalf of the sole respondent-landlord. He waived his right to file a counter affidavit.
10. It appears from a wholesome detail of the case that the petitioners pleaded before the two Courts below that Sardar Sundar Singh and the petitioners' father, Sardar Kesar Singh, who were brothers, were joint tenants of the shops in dispute. Since Sardar Sundar Singh was the elder of the two brothers, rent receipts were issued in his name, but both brothers carried on business jointly in the shops in dispute. Sardar Sundar Singh was unmarried and had no issues. The petitioners' father and the petitioners looked after Sundar Singh, taking care of his needs, including lodging, board, facilitating medical treatment etc. Sardar Sundar Singh died on 21.10.2017. It was after that event that the respondent launched the present proceedings seeking to declare a vacancy and asking for release of the shops in dispute. It was said that the Rent Control Inspector served notice under Rule 8(2) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 19723. Both parties, including the petitioners made their statements before the Rent Control Inspector. The Inspector found the petitioners to be in possession of the shops in dispute. The Inspector was informed that the shops in dispute were earlier owned by one Jagat Ram Thakur, who had rented them out to Sardar Sundar Singh. The petitioners along with Sardar Sundar Singh carried on business jointly in the shops in dispute.
11. There are assertions about the petitioners being paid compensation in the year 1986, on account of their property housed in the shops in dispute along with Sardar Sundar Singh being pillaged, during the 1984 anti-Sikh riots. It is on the basis of collateral evidence, like the compensation that the petitioners received from the Government for the loss sustained during the 1984 riots, the electricity meters installed in their name in the shops in dispute, that the petitioners seek to show that they were into some kind of a partnership business with Sardar Sundar Singh, who was nominally or formally the tenant of the shop along with the petitioners and their father, being the family elder.
12. In substance, it is the endeavour of the petitioners to establish that they, along with Sardar Sundar Singh, were carrying on business in partnership, where their father too was a partner ever since inception of the tenancy. They urged that the shops in dispute were the business premises of a partnership enterprise comprising Sardar Sundar Singh, the petitioners' father Sardar Kesar Singh and the petitioners. This case is urged in order to place the shops in dispute beyond the mischief of the provisions of Section 12(2) of the Act of 1972. Section 12(2) reads :
"12. Deemed vacancy of building in Certain cases.- (1) A, landlord or tenant of a building shall be deemed to have ceased to occupy the building or part thereof if-
(a) he has substantially removed his effects therefrom, or
(b) he has allowed it to be occupied by any person who is not a member of his family, or
(c) in the case of a residential building, he as well as members of his family have taken up residence, not being temporary residence, elsewhere.
(2) In the case of a non-residential building, where a tenant carrying on business in the building admits a person who is not a member of his family as a partner or a new partner, as the case may be, the tenant shall be deemed to have ceased to occupy the building.
(3) In the case of a residential building, if the tenant or any member of his family builds or otherwise acquires in a vacant state or gets vacated a residential building in the same city, municipality, notified area or town area in which the building under tenancy is situate, he shall be deemed to have ceased to occupy the building under his tenancy :
Provided that if the tenant or any member of his family had built any such residential building before the date of commencement of this Act, then such tenant shall be deemed to have ceased to occupy the building under his tenancy upon the expiration of a period of one year from the said date.
(4) Any building or part which a landlord or tenant has ceased to occupy within the meaning of sub-section (1), or sub-section (2) , or sub-section (3), shall, for the purposes of this Chapter, be deemed to be vacant."
13. The petitioners want this Court to accept that their family comprising their father, Sardar Kesar Singh, Sardar Sundar Singh and the two petitioners, were tenants of the shops in dispute jointly from the inception of the tenancy. It is not that Sardar Sundar Singh alone was the tenant of the shops in dispute but also had the petitioners as partners in his business, housed in the two shops. It is also urged on behalf of the petitioners that they being tenants in occupation of the shops in dispute, with the consent of the landlady much before the commencement of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) (Amendment) Act, 1976 w.e.f. 05.07.1976, against whom no suit or proceedings for eviction were pending before any Court or Authority on the date of such commencement, their tenancy would stand regularized under Section 14 of the Act of 1972, even if it is otherwise in breach of Section 12(2). It is also urged that proceedings for declaration of vacancy are time barred as the respondent was aware, since 1998 about the business being carried on by the petitioners in the shops in dispute, whereas the application for declaration of vacancy was moved much after 12 years, that is to say, on 12.12.2017. In support of this rule of limitation, vis-a-vis the right of the landlady to initiate proceedings for declaration of vacancy, reliance has been placed on the decision of this Court in Hazi Naseem Ahmad v. R.C.E.O./A.D.M. (C.S.), Varanasi & Others4. The said decision lays down a rule of limitation barring proceedings for declaration of vacancy being initiated after lapse of a period of 12 years from the date of accrual of the cause of action. In Hazi Naseem Ahmad (supra), it has been held:
"6. On a plain reading of the relevant provision of the Act, it does appear that no period of limitation for declaration of a vacancy actually or deemed has been prescribed under the Act. The question, then, arises if no period of limitation has been prescribed, an application for declaration of vacancy can be filed within a reasonable period. It has been held in Abdul Khaliq v. Additional District Magistrate, Varanasi, 2007 (2) ARC 629, that with respect to the proceedings under Section 12 of the Act, a period of 12 years should be taken as reasonable time for initiating the proceedings under the Statute from the date of cause of action arises. In this case, the Court has relied upon a decision of the Apex Court in the case of Mansha Ram v. S. P. Pathak and others, AIR 1983 SC 1239. In Anil Kumar Dixit v. Smt. Maya Tripathi and another, 2006 (1) ARC 377 : 2006 (1) AWC 649, the above view has been reiterated.
7. The aforesaid pronouncements have been constantly followed by this Court as is apparent from Sarla Devi v. Shailesh Kumar and Ors. 2008 (3) ARC 632 and Jamuna Devi v. District Judge, Kanpur Nagar and others, 2009 (1) ARC 266. There is, thus, no reason for me to take a contrary view.
8. In Shambhu alias Shambhu Dayal (supra) it has been held by this Court that a conjoint reading of Sections 11 and 13 of the U.P. Act No. 13 of 1972 prohibits the letting without order of allotment and it can safely be concluded that the Act restrains the landlord for giving the accommodation on rent without a valid order or allotment and none can occupy without issuance of valid allotment order in his favour.
9. It appears that the attention of the Court was not drawn to the earlier decision of this Court in the case of Anil Kumar Dixit v. Smt. Maya Tripathi (supra). Nor the attention of the Court was invited towards the judgment of the Apex Court in the case of Mansha Ram v. S. P. Pathak (supra). Therefore, the decision laid down therein should be read and understood in the context of the fact of that case."
14. The learned Counsel for the respondent, on the other hand, has opposed the submissions made by the petitioners and said that given the provisions of Sections 12(1) and 12(2) of the Act of 1972, the petitioners, who are not members of the tenant's family, cannot be inducted as partners or new partners in any business, nor can the tenant permit occupation of a tenanted premises by a person, who is not a member of his family. It is urged that the brother's son does not fall within the definition of family in relation to a tenant of a building as defined under Section 3(g) of the Act of 1972. Therefore, occupation by the petitioners clearly attracts the fiction under Sections 12(1) and 12(2) of the Act of 1972 leading to a deemed vacancy in the shops in dispute. It is also argued that there is no evidence led on behalf of the petitioners to show that they were carrying on business in the shops in dispute as a partnership from inception of the tenancy, along with Sardar Sundar Singh.
15. I have considered rival submissions advanced by the learned Counsel for parties and perused the record.
16. The petitioners' case that the two along with their father and the tenant, late Sardar Sundar Singh, were all tenants together in the shops in dispute, where they were doing business as partners, is difficult to accept. Admittedly, the tenancy stood in the name of late Sardar Sundar Singh alone, about which the petitioners say that the tenancy was recorded formally in his name as he was the senior most member of the family. They want this Court to accept that Sardar Sundar Singh was a karta of sorts of a joint family, where all the four persons were carrying on business in partnership; and, this partnership of ''four' was the tenant in the shops in dispute. There is no rent deed or rent note or rent receipt in the name of the petitioners, their father and Sardar Sundar Singh. There is no document either to show that there was any partnership firm, comprising these men in existence, let alone being that the partnership firm was inducted as a tenant in the year 1967.
17. To the contrary, it is accepted that it was Sardar Sundar Singh who contracted a tenancy of the shops in dispute in the year 1967 with the then owner/ landlord. There is also no municipal assessment record that may show the tenancy to stand jointly in the name of Sardar Sundar Singh, his brother Kesar Singh and the petitioners. There is also no case that there was an order of allotment issued by the competent Authority way back in the year 1967, allotting the shops in dispute to Sardar Sundar Singh, his brother Kesar Singh and the petitioners together, as joint tenants or as a partnership for the purpose of doing business. To the contrary, the tenor of the evidence shows that the shops in dispute were in the exclusive tenancy of Sardar Sundar Singh for the purpose of carrying on his business, that he had divided into two departments, one relating to some kind of a trade in watches and the other in scrap.
18. Evidence is also eloquent about the fact that Sardar Sundar Singh was an unmarried and issue-less man. The two petitioners being his brother's sons, helped him with his business. The petitioners appear to have grown dominant in that business with an aging Sundar Singh. They later on divided the business in the two shops between them with Sundar Singh occupying the back seat until his demise on 21.10.2017. What does not appear to be in doubt is the fact that till the end of his life, it was Sardar Sundar Singh, who was the lawful tenant of the shops in dispute. Tenancy, even in case of one that is regulated or governed by Statute, is a matter of contract between the landlord and the tenant. Unless there be evidence to show that there is an underlying contract between the tenant and the landlord that constitutes a demise of the tenanted premises, it is difficult to infer tenancy from mere incidents of occupation of a premises by one who claims that status.
19. The evidence offered by the petitioners about receiving compensation in the year 1986 for the 1984 Anti-Sikh Riots on ground of their business and property being damaged, that was placed in the shops in dispute, cannot lead to an inference of tenancy of any kind in favour of the petitioners. All that would show is that the petitioners were lending a helping hand to Sardar Sundar Singh in his business, who was their father's brother. One inference could be that taking advantage of this fortuitous circumstance, they claimed compensation for damages to property, that were lawfully the effects of their uncle's business. The other would lead to a result hardly favourable to the petitioners, and that would be that the petitioners indeed entered into a partnership with Sardar Sundar Singh, when their property was destroyed during Anti-Sikh Riots, for which they received compensation from the Government. If that be so, it brooks little doubt that the petitioners not being members of Sardar Sundar Singh's family as defined under Section 3(g) of the Act of 1972, the act of Sardar Sundar Singh in permitting the petitioners, constitutes admission of persons as partners or new partners, who were not members of Sundar Singh's family. It would clearly attract the fiction under Section 12(2) of the Act of 1972, leading to a deemed vacancy. On the evidence that has figured on record, if it is held that Sundar Singh did not admit the petitioners as partners to his business, but with aging years, allowed them to occupy the shops in dispute to carry on their own business, the tenant would still be deemed to have ceased to occupy the shops in dispute under Section 12(1)(b) of the Act of 1972. Section 3(g) of the Act of 1972 enlists, who would be members of the tenant's family for the purposes of the Act. It reads:
"3. Definitions.--In this Act, unless the context otherwise requires--
(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;"
20. Clearly, the petitioners, who are collaterals of Sardar Sundar Singh and not his lineal descendants, do not qualify as members of his family. Whichever way, the petitioners' entry in the shops in dispute is viewed during the lifetime of Sardar Sundar Singh, the inference of a deemed vacancy is inescapable.
21. It is alternatively argued that the petitioners being brother's sons of Sundar Singh, who was an issue-less man, were entitled to inherit his tenancy, upon his demise as they are his heirs under the law of succession applicable to parties. In this connection, it is emphasized that for the purpose of inheriting the tenancy, Section 3(g) of the Act of 1972 is not at all relevant. The definition of ''family' there with reference to the provisions of Sections 12(1) and 12(2) would apply, if the petitioners' rights are to be determined as tenants, entering the shops in dispute during the lifetime of Sundar Singh. If they are to be regarded as mere helping hands during Sundar Singh's lifetime, but his heirs entitled to inherit the tenancy upon his demise, Section 3(g) is not at all relevant. In that case, their rights would be governed by Section 3(a)(2) of the Act of 1972. Section 3(a) reads:
"3. Definitions.--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 case 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;"
22. In support of their contention, reliance has been placed by Mr. Mohd. Aqueel Khan on behalf of the petitioners on the decision of the Supreme Court in Durga Prasad v. Narayan Ramchandaani (Dead) through Legal Representatives5 where it has been held:
"9. A careful analysis of the above provisions indicates that Section 3(a) uses the word "heir". Definition in Section 3(a) deals with the contingency when a tenant dies. It is significant to note that the words "family member" are absent in Section 3(a). "Family member" are defined under Section 3(g) of U.P. Act 13 of 1972 and is also referred to in Section 12 of U.P. Act 13 of 1972. The word "heir" in Section 3(a) is used in relation to a "tenant" who has to succeed as "tenant on the tenant's death"; while "family" is used in Section 12 which deals with a situation of an existing tenant. The definition of "family" as occurring in Section 3(g) may not be relevant for the purposes of determining the question as to who would become tenant on the death of the original tenant, since Section 3(a) uses the word "heir".
10. In the present case, we are dealing with the case as to who would become "tenant" on the death of Lalita. Hence, the definition of "family" is not relevant for the purposes of determining as to who would become tenant on the death of tenant Lalita. The only question falling for consideration is whether the appellant brother of the tenant Lalita is an "heir" under Section 3(a) of U.P. Act 13 of 1972. The word "heir" is not defined in the Act. "Heir" is a person who inherits or may inherit by law. Section 3(1)(f) of the Hindu Succession Act defines "heir" as--
"3. (1)(f) "heir" means any person, male or female, who is entitled to succeed to the property of an intestate under this Act;"
The word "heir" has to be given the same meaning as would be applicable to the general law of succession. In the present case, as pointed out by the High Court, the deceased tenant Lalita being a Hindu female, the devolution of tenancy will be determined under Section 15 of the Hindu Succession Act."
23. The aforesaid guidance of their Lordships in Durga Prasad shows without doubt that in the event the tenancy is regarded as one that was exclusively held by Sundar Singh until his death, Section 3(g) of the Act of 1972 would not be relevant to decide, who would inherit the tenancy. That would be governed by Section 3(a) of the Act of 1972. A perusal of Section 3(a) (2) shows that in case of of a non-residential building, it would be the heirs of the tenant. The decision in Durga Prasad clearly holds that the word 'heir' under Section 3(a) of the Act of 1972 has to be given the same meaning as would be applicable under the general law of succession. Admittedly, the parties being Sikhs, their right to succession would be governed by the Hindu Succession Act, 19566. Section 8 of the Act of 1956 provides that the property of a male Hindu dying intestate shall firstly devolve upon his heirs, specified in Class I of the Schedule and if there be none in Class I, upon the heirs, specified in Class II of the Schedule. Section 9 of the Act of 1956 provides for the order of succession amongst heirs in the Schedule. It lays down the rule that various heirs in Class II shall take in the manner that an heir placed in the higher entry, shall be preferred to those in the lower entry. Now, Sundar Singh died intestate leaving behind his brothers, Sardar Kesar Singh and Sardar Balbir Singh. The fact that these two brothers of Sundar Singh were alive at the time of his death, had been recorded for a finding of fact by the learned Additional District Judge in the order impugned. There is no issue about it for a fact. Brothers and brother's sons, both qualify as Class II heirs under the Schedule appended to the Act of 1956. Brothers of a deceased Hindu male instate are placed in Entry II, whereas brother's son is placed in Entry IV. Clearly, therefore, upon death of Sardar Sundar Singh, if any one would have inherited his tenancy, it would be his brothers, Kesar Singh and Balbir Singh. Though, there is a case to begin with that Kesar Singh, Sundar Singh and the petitioners, together had entered the shop in dispute as joint tenants doing business in partnership, it has already been held that there is absolutely no evidence about it. There is no case that Sardar Kesar Singh or for that matter Sardar Balbir Singh, ever laid a claim to succeed to the tenancy of the late Sundar Singh. It is not the case of the petitioners either that they claim through Sardar Kesar Singh in any way. The unexceptionable inference is, therefore, that during lifetime of Sardar Kesar Singh and Sardar Sundar Singh, the petitioners could not have succeeded to the tenancy of Sardar Sundar Singh.
24. It was urged on behalf of the petitioners that Sardar Sundar Singh and Sardar Balbir Singh, being Class II heirs in Entry II of the Schedule, if they did not claim rights to the tenancy they inherited from Sardar Sundar Singh, it would pass to the next available Class II heirs, that is to say, the petitioners, who figure in Entry IV. This submission is not tenable. The correct position of the law is that so long as the heir entitled to inherit is alive, the heir lower down in the order of inheritance cannot inherit. There is no passing over of the heir entitled in the order of priority under the Schedule appended to the Act of 1956, as if it were, if the heir immediately entitled on the death of a Hindu intestate does not assert his right. In this regard, reference may be made to the proposition about a tenancy being inherited by a person lower in order of priority than the heir available and entitled to inherit, that fell for decision of this Court in Om Prakash & Others v. The Prescribed Authority & Others7. In Om Prakash (supra) it was held :
"12. In view of the clear and specific meaning of the word "heir" what has to be seen is whether the petitioners would inherit the properties of Ganpat Ram (assuming that he was the original tenant). Succession to the property of a Hindu dying intestate has been indicated in the Hindu Succession Act, 1956. Section 8 of the said Act provides that the property shall devolve upon the heirs specified in Class I of the Schedule and if there was no heir of Class I then upon the heirs specified in Class II and so on. A grandson in the life-time of his father would not inherit the properties of the grandfather dying intestate. Tenancy right is immovable property. It is heritable as any. other immovable property.
13. On the death of Ganpat Ram (assuming that he was the original tenant), the tenancy right would devolve upon his heir in accordance with the provisions of the Hindu Succession Act and consequently Chhotu Ram alone, in his capacity as son and heir of Ganpat Ram, would become the tenant of the premises in question. The petitioners in their capacity as grand children of Ganpat Ram would not inherit the tenancy right in the presence of their father, Chhotu Ram. In any case since it was at no time pleaded that the petitioners along with their father and grand father constituted a joint Hindu family, it is not required of me to look to the provisions of Section 6 of the Hindu Succession Act under which the interest of the deceased devolves upon the surviving members of coparcenary, The Prescribed Authority, therefore, does not appear to have committed any error in rejecting the application of the petitioners on the ground that they have not inherited tenancy rights and that they were not necessary parties to the proceedings under Section 21 of the Act."
25. This question whether an heir lower down in order of preference was entitled to inherit the tenancy, arose in the context of Act of 1972 in Man Singh v. Machau Lal & Others8. The facts giving rise to the issue in Man Singh are succinctly narrated in paragraph nos. 2 and 3 of the report, which read :
"2. The facts found by the Courts below and which are not in dispute, lie within a narrow compass. One Smt. Kashi Devi was admittedly residing in the accommodation in dispute as its tenant. The Plaintiff-Respondents were the landlords of the same. At the time of her death in the year 1973, the Appellant who is the son of the brother of Smt. Kashi Devi's husband, was residing with Smt. Kashi Devi. The Appellant's father Gopal Singh, though alive at that time, was, however, not residing with Smt. Kashi Devi. Gopal Singh also died in 1975. On the death of Smt. Kashi Devi the present suit was brought by the Plaintiff-Respondents against the Appellant on the ground that the Appellant was residing with Smt. Kashi Devi only as the latter's licensee and inasmuch as he was not an heir of Kashi Devi he did not inherit her tenancy rights. With the result that after her death the Appellant had ceased to have any legal claim to remain in possession over the disputed accommodation.
3. The defence of the Appellant, on the other hand, was that, firstly, he had legally inherited the tenancy rights of Kashi Devi as one residing with her normally and also being an heir and consequently till his tenancy was determined the Plaintiff could not seek a decree for dispossession; and, secondly, he having been adopted by Nanhe Singh and his wife Smt. Kashi Devi, he became a tenant of the disputed accommodation after the death of Smt. Kashi Devi, Nanhe Singh the original tenant having predeceased Kashi Devi."
26. In the context of the said facts, it was held in Man Singh (supra) dealing with a similar contention as the one now raised before us thus :
"10. The question that, however, falls , for determination is whether we should import the considerations of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, as suggested by Sri. S.M. Dayal, in determining the question as to who was the heir of Smt. Kashi Devi entitled to claim the tenancy rights after the death of Kashi Devi. Sri. Dayal submitted that as Gopal Singh was not residing with Smt. Kashi Devi, he did not inherit her tenancy rights. Consequently this Court should hold that there was no heir available among those mentioned in the second entry of Class II. That being so, the heirs mentioned in the fourth entry of Class II should be deemed to have inherited the tenancy rights of Smt. Kashi Devi.
11. I find it difficult to accept the contention. The submission can be accepted only by stretching the language of the statute, viz. Section 3(a)(1) of U.P. Act No. 13 of 1972 beyond permissible limits. In fact, what the learned Counsel wants this Court to hold is that in construing the term 'heirs' in Clause (1) we should read further that if a preferential heir was not residing with the deceased tenant then the heir next in order of preference as prescribed under the Hindu Succession Act who was residing with the tenant, should be deemed to be the heir of the tenant within the meaning of that clause. Such a construction is not warranted either by the language or the scheme or purpose of U.P. Act No. 13 of 1972. On a plain and simple construction of Section 3(a)(1) of this Act, only that heir would be entitled to inherit the tenancy rights in respect of residential accommodation who was actually residing with the tenant and the heir would be one who is entitled under the personal law to inherit the rights of the deceased............"
27. The question again came up for consideration before this Court in a much later decision in Ishwar Chand v. Additional District Magistrate (Civil Supply)/R.C.E.O., Kanpur Nagar & Another9. It was, again, a case where a grandson laid claim to the inheritance of the grandfather's tenancy, because he was living with him, whereas the tenant's son was not. The question that arose, therefore, was whether the grandson, who was living with the tenant in the residential building, was entitled to inherit as his heir, because the tenant's son was not normally residing with him. In Ishwar Chand (supra) is was held :
"6. The contention of the learned counsel for the petitioner is that after the death of the tenant, any of his heirs who normally resided with him at the time of his death is entitled to inherit the tenancy rights and where a person who is entitled to inherit the tenancy was not normally residing with the tenant at the time of his death, such other person who comes in the category of an heir under the law is entitled to Inherit the tenancy if he was residing with the tenant at the time of his death. The personal law will determine as to who is the person under the law to inherit the tenancy. Section 8 of the Hindu Succession Act. 1956 provides that the property of a male Hindu dying intestate shall devolve according to the provisions mentioned under the Act-
(a) firstly, upon the heirs, being the relatives specified in class 1 of the Schedule ;
(b) secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II of the Schedule ;
(c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased ; and
(d) lastly, if there is no agnate, then upon the cognates of the deceased.
7. Section 9 of the Act provides that among the heirs specified in the Schedule, those in class I shall take simultaneously and to the exclusion of all other heirs ; those in the first entry in class II shall be preferred to those in the second entry ; those in the second entry shall be preferred to those in the third entry ; and so on in succession.
8. The son has preference to succeed to the exclusion of grandson. The inheritance takes place on the death of the tenant. In case he is survived by four sons, such son shall inherit the tenancy who was residing with his father but in case the tenant dies leaving behind him the only son but he was not residing and shifted elsewhere but his grandson is living, he will not inherit the tenancy as for inheritance two conditions are required to be fulfilled ; firstly, that he inherits the rights of the deceased tenant to the property under the personal law and secondly, he was residing at the time of death of the tenant in such residential building............"
28. It must be remarked that the decisions in Man Singh (supra) and Ishwar Chand (supra) and the earlier one in Om Prakash (supra) proceed on the principle that in the presence of various heirs of the deceased-tenant under the Act of 1956, tenancy would not go to an heir lower in order of preference, whether the heir immediately entitled to inherit, according to the order of preference, accepts the tenancy or not, or is otherwise not entitled under the Act of 1972. In no case, in the presence of an heir of a tenant higher in order of preference or class, an heir in a lower class or lower category of preference would take the tenancy. It is, thus, held that the petitioners would not inherit the tenancy of the late Sardar Sundar Singh during the lifetime of Sardar Kesar Singh and Sardar Balbir Singh, whether they claimed the tenancy or forsook it.
29. As a corollary to the submission that the petitioners have inherited the tenancy, learned Counsel for the petitioner has made another point, which depends upon a testamentary succession to the tenancy. The attention of the Court has been drawn to the fact that the late Sardar Sundar Singh had executed a will dated 04.07.2011, that is on record as Paper No. 170 before the Court of first instance, according to which, the testator left all his movable and immovable property to the wives of the petitioners. Learned Counsel for the petitioners has urged that this point was mooted before the Courts below, particularly the Court of Revision, where the learned Additional District Judge looked into the will dated 04.07.2011 propounded by the petitioners to claim tenancy. It is submitted by the learned Counsel that the learned Additional District Judge committed an error by accepting another and a later will dated 29.01.2013, said to be left by the deceased Sardar Sundar Singh, revoking his earlier will as one based on fraud and by the later device, bequeathing all his movable and immovable properties to his niece, Km. Harmeet Kaur, daughter of his brother Sardar Balbir Singh. Learned Counsel for the petitioners submits that the learned Additional District Judge committed an error in accepting the subsequent will, because the landlord could not have propounded the said will. He was neither the executor of the will nor its beneficiary. Km. Harmeet Kaur, the beneficiary of the will, never came forward to propound the will dated 19.01.2013 that derogated from the earlier will dated 04.07.2011 left in favour of the petitioners' wives. Learned Counsel for the petitioners submits that based on the will dated 04.07.2011, the petitioners would inherit the tenancy as testamentary heirs of the tenant, the late Sardar Sundar Singh.
30. There are many fallacies to this submission, the one most obvious being that the will of the year 2011 did not bequeath the tenancy to the petitioner, but to their wives. If the will of 2011 is to be accepted as a valid source of acquisition of tenancy rights, the tenancy would go to the petitioners' wives, and not the petitioners. But, that is not a reason that should, at all, weigh with this Court to dispose of this part of the submission urged on behalf of the petitioners. The reason is to be found in the principle of law that is attracted to the inheritance of tenancy rights under Section 3(a) of the Act of 1972. The principle appears to be that heirs entitled to inherit the tenancy referred to under Section 3 (a) are the heirs of the deceased tenant, according to intestate succession; not his testamentary heirs. While the testamentary heirs may be entitled to take all that has been bequeathed to them, according to the deceased-tenant's will, the tenancy would be governed not by the bequest, but by intestate succession, under the Act of 1956. The principle aforesaid, which does not appear to have been doubted or overturned, was laid down by this Court in Ratan Lal v. The Additional District Judge, Bulandshahr & Others10. In Ratan Lal (supra) it was held :
"20. This gives rise to the question about the scope of the word 'heirs' used in Section 3 of U.P. Act No. 13 of 1972. Counsel contended that the word 'heirs', would include testamentary heirs as well. The word 'heir' has several meanings. In some of the cases this word has been interpreted as including the testamentary heirs whereas in some other cases it has been held as confining its operation only to the heirs of the deceased to be determined in accordance with the personal law. The word 'heirs' does, I think, connote an idea of succession as well as an idea of consanguinity. In the light of the various provisions of the Act, it appears that the word 'heirs' in relation to a tenant should be construed as referring to the persons entitled to the property under the law of intestate succession applicable on the date when the testator dies.
21. Counsel for both the parties have referred to the various dictionary meanings in support of their respective contentions. It is not necessary to refer to those inasmuch as I have already said above that in the context in which the word 'heir' has been used, it is amply clear that this expression must be confined to the persons receiving the property if a tenant dies intestate. In Wealth-tax Commissioner, A.P. v. Courts of Wards, AIR 1977 SC 113, the Supreme Court has laid down the principle which would apply to such matters as follows:
We think that it is not correct to give as wide a meaning as possible to terms used in a statute simply because the statute does not define an expression. The correct rule is that we have to endeavour to find out the exact sense in which the words have been used in a particular context. We are entitled to look at a statute as a whole and give an interpretation in consonance with the purpose of the statute and what logically follows from the terms used. We are to avoid obscure and absurd results........."
31. Thus, some for added reasons and others, for very different, this Court concurs in the conclusions that the learned Additional District Judge has reached, to wit, that the petitioners are not entitled to inherit the tenancy of Sardar Sundar Singh, either as his heirs intestate or testamentary, under the Act of 1972. A fortiori, this Court must also concur with the conclusion of the learned Additional District Judge that after the death of Sardar Sundar Singh, the shops in dispute have fallen vacant.
32. The other submission advanced on behalf of the learned Counsel for the petitioners based on the principle in Hazi Naseem to the effect that the application for declaration of vacancy, in regard to the shops in dispute being moved in the year 2017, it would be barred by limitation, inasmuch as the petitioners were carrying on business in the said shops since the year 1998, is also without substance. This is for the reason that there is precisely no evidence to indicate at what point of time the petitioners came to occupy the shops in dispute, either exclusively or together with Sardar Sundar Singh, to do business in their own right, as contrasted to their position as nephews of Sardar Sundar Singh, who would help him in one way or the other with his business, without any kind of right or occupation of their own. It has not been indicated as to when the electricity meters in the petitioners' name were installed, or other evidence to show the petitioners' occupation of the shops in dispute in their own right, exclusively or together with the late Sardar Sundar Singh. In the absence of a precise date, by the time at or about which the petitioners came to occupy the shops in their own right, exclusively or along with Sardar Sundar Singh to do their own business, it is very difficult to apply the bar of limitation of 12 years against the landlady, seeking a declaration of vacancy.
33. Still another submission that has been pressed in aid by learned Counsel for the petitioners to defend the validity of their possession as lawful tenants is the right of regularization of existing tenants under Section 14 of the Act of 1972. Section 14 is extracted below :
"Section 14 - Regularisation or occupation of existing tenants-Notwithstanding anything contained in this Act or any other law for the time being in force, any licensee (within the meaning of Section 2-A) or a tenant in occupation of a building with the consent of the landlord immediately before the commencement of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) (Amendment) Act, 1976, not being a person against whom any suit or proceeding for eviction is pending before any Court or authority on the date of such commencement shall be deemed to be an authorised licensee or tenant of such building."
34. A perusal of the provisions under Section 14 of the Act of 1972 makes it pellucid that in order to attract the creation of a valid tenancy by regularization under this provision of the Statute, the person in occupation of a building must be in occupation on the date of enforcement of the Act No. 28 of 1976, that is, before 05.07.1976 either as a licensee or as a tenant, with the consent of the landlord. There is absolutely no evidence on record to show that the petitioners were ever in occupation of the shops in dispute before 05.07.1976 or that they were in such occupation either as licensees or tenants and with the consent of the landlord. About this fact, there is an eloquent finding by the Revisional Court recorded in the impugned order, which reads :
"पुनरीक्षणकर्तागण प्रश्नगत दुकान में किस तिथि से कब्जे में हैं, इस तथ्य का उल्लेख न तो अवर न्यायालय की पत्रावली में किया गया है और न ही प्रश्नगत पुनरीक्षण की पत्रावली में। अवर न्यायालय में दिए गए बयान दिनांकित-16/01/2018 कागज संख्या 10 में रंजीत सिंह द्वारा अपने बयान में मात्र यह कहा गया है कि मुझे इस व्यापार में लगभग 45 (पैंतालिस) वर्ष हो चुके हैं। इसी प्रकार गुरमीत सिंह द्वारा बयान कागज संख्या 15 में कहा गया है कि मुझे व्यापार में 30 (तीस) वर्ष हो चुके हैं। पत्रावली पर उपलब्ध कागज संख्या 43ग, 44ग तथा 45ग आदि से मात्र इतना स्पष्ट हो रहा है कि गुरमीत सिंह सन 1984 के दंगो में प्रभावित होने के कारण क्षतिपूर्ति प्राप्त करने के अधिकारी पाए गए थे। रंजीत सिंह का नाम उक्त प्रपत्रों में कहीं नहीं है। इस प्रकार 5 जुलाई 1976 के पूर्व पुनरीक्षणकर्तागण का कब्जा साबित नहीं है। ऐसी स्थिति में अवर न्यायालय द्वारा पुनरीक्षणकर्तागण को धारा 14 यू0पी0 एक्ट नंबर 13 सन 72 का लाभ प्रदान न कर कोई त्रुटि कारित नहीं की गई है।"
35. There is indeed nothing on record to indicate that the petitioners were in occupation of the shops in dispute before 05.07.1976, either as licensees or tenants, with the landlord's consent. The findings of the Revisional Court, as above recorded, are well borne out from the evidence and there is no reason for this Court to take a different view, in exercise of our jurisdiction under Article 226 of the Constitution. This Court must also remark that the RC & EO has very validly taken note of the fact that there is not a solitary rent receipt placed on record to show that the petitioners ever paid rent for the shops in dispute to the respondent-landlady. This Court also finds that there is no material to show that at any stage in point of time, the petitioners paid rent to whoever was the landlord for the time being. Until his death, it was Sardar Sundar Singh alone who was the lawful and recorded tenant of the shops in dispute. His heirs entitled to inherit having not come forward to claim it, the finding of a vacancy must logically follow. If the petitioners' occupation at some point of time after Sardar Sundar Singh fell ill is to be taken note of, where they claim to carrying of business separately in the two shops, the finding of deemed vacancy is inescapable, as the petitioners are not members of Sardar Sundar Singh's family.
36. The impugned orders passed by the RC & EO and the learned Additional District Judge are flawless, both in law and equity - equity this Court says because after all, the petitioners never contracted a tenancy of the shops in dispute with the landlady or an earlier landlord. They have tried to attempt a backdoor entry to claim their uncle's tenancy, to which they are not entitled under the law. They have never paid rent to the respondent-landlady or any earlier landlord, which decisively tips the scale of equity against the petitioners.
37. In the result, this petition fails and stands dismissed with costs. The RC & EO is free to enforce the impugned order of release dated 14.12.2018 passed in favour of respondent no. 3.
38. Let this order be communicated to the RC & EO/Additional City Magistrate-VII, Kanpur Nagar through the District Magistrate, Kanpur Nagar by the Registrar (Compliance).
Order Date :- September the 29th, 2021 Anoop / I. Batabyal