Allahabad High Court
Vijay Kalra vs Anuj Kumar And Another on 10 December, 2024
Author: Ajit Kumar
Bench: Ajit Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:200102 Court No. - 4 'AFR' Case :- MATTERS UNDER ARTICLE 227 No. - 9910 of 2023 Petitioner :- Vijay Kalra Respondent :- Anuj Kumar And Another Counsel for Petitioner :- Gulrez Khan,Javed Husain Khan,Sr. Advocate Counsel for Respondent :- Ajay Kumar Sharma Hon'ble Ajit Kumar,J.
1. Heard Sri W.H.Khan, learned Senior Advocate assisted by Sri Gulrez Khan, learned counsel for the petitioner and Sri M.D.Singh Sekhar, learned Senior Advocate assisted by Sri Ajay Kumar Sharma, learned counsel for the respondent.
2. Petitioner Vijay Kalra has questioned the order passed by Rent Appellate Court in Rent Control Appeal No. 21 of 2022 allowing release application qua tenanted premises in favour of landlord respondent-Anuj Kumar, even though the land lord respondent never admitted petitioner to be tenant and even after his impleadment being ordered in the release application by amendment in release application, it was made specific to opposite party no. 1 therein. It is argued that since release was filed against opposite party no. 1, the release of denied premises could not have been ordered against present petitioner. He claimed to have entered into a partnership firm with his father, Hansraj Kalra in 1984 and after death of his father in the year 1992, he became proprietor of the firm, namely, M/s Hemraj and he having not been treated as tenant by the land landlord, the application could not have been granted taking him to have succeeded the tenancy being one of the heirs of Hemraj for alleged succession of tenancy.
3. In support of his above arguments, so advanced, Sri W.H.Khan learned Senior Advocate assisted by Sri Gulrez Khan, learned counsel for the petitioner placed before the Court the order of High Court allowing impleadment application passed in Writ A No. 16410 of 2015. It is submitted that after impleadment was allowed on 18.5.2015 when it became necessary for the landlord to amend release application and he impladed petitioner only as defendant no. 2 on account of order being passed by the High Court but then proceeded to further amend paragraphs 2, 8,9 and 10 of release application to make release application specific to respondent no. 1 Vinod Kalra only. He also took the Court to the written statement filed by present petitioner in the release application wherein he claimed himself to be the tenant of the landlord as a proprietorship firm of which he was sole proprietor, but the landlord refused to recognize him as tenant as he had made specific pleadings in paragraph 17 of the reply that for mere signing the receipts issued against payment of rent, Vijay Kalra would not become his tenant. He further pleaded before the Court that in paragraph 17 of the said affidavit in reply, the landlord admitted that M/s Hansraj Vinod Kalra tenant.
4. It is further argued that in written statement, it was specifically pleaded by the present petitioner that he was helping his father Hansraj and became a partner with him in 1984 forming a partnership firm, copy whereof has also been brought on record as annexure 8 to the petition. Thus, it is submitted that when petitioner himself was a tenant being partners of the firm and with the dissolution thereof in 1992, petitioner formed a proprietorship firm and was admitted as tenant in individual and independent capacity, the landlord having not maintained the release application against petitioner by amending it to the extent that relief was being claimed as only against Vinod Kalra, namely, defendant no. 1 impleaded in the application, merely because petitioner was a party would not have rendered the release application maintainable against him under Section 21(1)(a) of Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972.
5. In support of above argument, he has placed reliance upon the authority of Supreme Court in the case of Om Prakash and Others v. Ram Kumar and Others, (1991) 1 SCC 441 and Maqboolunnisa v. Mohd. Saleha Quaraishi, Allahabad Rent Cases, 1998 (2).
6. Another argument was sought to be advanced by Mr. Khan that there was no sufficient service of notice upon defendant no. 1 to maintain release as against him and has relied upon judgment of coordinate bench of this Court in the case case of Aayal Das v. Shelendra Agrawal and Others (2015) (113) ALR 28 and another judgment in the case of Shrawaan @ Sarvan Gupta v. Smt. Renu Kushwaha 2020 (138) ALR 660.
7. Meeting the submissions so advanced above on behalf, the petitioner, Mr. M.D.Singh Shekhar, learned Senior Advocate assisted by Ajay Kumar Sharma, learned counsel for the respondents submitted that petitioner having admitted himself to be tenant, succeeding the tenancy from his father Hansraj, would have made him automatically a tenant by succession and once he had been impleaded in the release application, release application could have been granted on merits against him as well. He argues that admission being the best piece of evidence even if landlord did not amend the entire plaint of release application but having amended the relief clause, it should be taken to be release application as against present petitioner as well.
8. He has further argued that petitioner having succeeded tenancy from his father alongwith his brother and other heirs and tenancy being commercial in nature in respect of non residential building, in view of Section 3(2) of Act No. 13 of 1972, he automatically became a joint tenant. The petitioner and his brother and other heirs of Hansraj have to be taken as joint tenants for having inherited tenancy rights from their deceased father together and so release application under Section 21(1)(a) was maintainable.
9. Sri Singh has further defended the order passed by the appellate authority on this count by referring to the relevant paragraph of the judgment in which he has been taken to be heir of the erstwhile landlord Hansraj and hence release application deserved to be allowed as against him. Mr. Singh has further argued that on the point of bonafide need there are concurrent findings of fact which has not been assailed. He submits that once the petitioner has come to be impleaded as tenant in the release application and he himself admits to have succeeded tenancy from his father as his natural heir, the Court of appeal cannot be said to have manifestly erred in allowing release application as against him as well. Mr. Singh has further argued that there was no tenancy with the partnership firm as has come in the written statement of the contesting petitioner that tenancy was created in 1951 when Hansraj, his father was inducted. He submits that in 1984 partnership firm was formed between him and his father and later on when father died in 1992, the partnership firm got dissolved and upon its dissolution, a new properietorship firm came into existence but there is no averment to the effect that there was any tenancy ever created in favour of either partnership firm or in favour of proprietorship firm and hence release was maintainable against heirs of Hansraj.
10. In his rejoinder affidavit, Mr. Khan argued that sufficient evidence was placed on record that in 1984, a partnership firm was formed and the landlord respondent having admitted in affidavit that he used to issue receipts in the name of M/s Hansraj Vinod Kalra, he would be taken to have admitted that there was firm created in 1984 and that firm was paying rent. Thus according to Mr. Khan this admission itself was indicative of tenancy created in favour of firm.
11. Having heard learned counsel for the respective parties and having perused the records, the only point that arose for consideration before the Court was whether release could have been granted against petitioner once he stood impleaded in the release application as one of the respondents upon his own admission that he was tenant of the landlord. Even though release application did not contain recitals admitting him to be tenant and rather making it more respondent no. 1 specific and yet it has been allowed upon admission of petitioner to be tenant for his succeeding tenancy from his father Hansraj.
12. In order to find answer to this above point in issue, it is to be first determined as to whether there was ever a tenancy in favour of firm or it was in favour of an individual. If tenancy was in favour of firm, it would be taken to have terminated upon death of partner with the dissolution of partnership firm and continuation thereof with one of the partners after he formed a proprietorship firm would be taken to be a tenancy in favour of firm alone. However, if it comes to be established that it was tenancy in favour of individual then all successors of the individual would become heirs to inherit tenancy and would be to be joint tenants and then release application against one would be taken to be release application competent against the other who is a party, even though not much pleadings have been raised admitting other heir to be tenant, in view of legal fiction created under Section 3(2) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972.
13. The question whether there was a tenancy with partnership firm or not, since respondent no. 1 has not contested the pleadings raised by respondent no. 2, it becomes relevant as he has admitted himself to be tenant. In the written statement filed by the respondent no. 2, present petitioner vide paragraph 18 has admitted to be paying rent @ Rs. 450/- as a tenant and respondent no. 1, namely his brother was not tenant. So there is no quarrel as to jural relationship of landlord between respondent and petitioner. In paragraph 23 of the release application, the applicant denied respondent no. 2 therein to be tenant, and therefore, any request by landlord to respondent no. 1 to release premises in question was absolutely ill founded. In paragraph 25 of the written statement (verified on 29th July, 2016) he claimed that 51 years ago, the shop in question was taken on rent by his father Hansraj kalra from Bhagwandas and ever since then his father continued to be tenant of the shop in question. He claimed to be born in 1962 and after getting admitted, he started sitting with his father and since petitioner was not interested in pursuing studies further and was taking interest in business of Standard Auto Electrics, he became partner of his father in a partnership firm for which agreement was executed on 2nd July, 1984 in writing and ever since then he was paying rent. In paragraph 27, he claimed that on 6th January, 1992 his father died leaving behind widow Smt. Shila , daughter Smt. Kailashrani and four sons, namely Om Prakash, Vinod Kalra ,Ashok Kalra, and opposite party Vijay Kalra as his legal heirs.
14. It is further claimed that petitioner Vinod Kalra shifted to Dehradun and was doing business there only and this was in full knowledge and notice of respondent. In paragraph 28, it is stated that after death of Hansraj, petitioner succeeded tenancy as heir as per law. In paragraph 29, it is stated that after death of his father, petitioner was running partnership firm and this was in full knowledge of Anuj Kumar and his father. The relevant paragraphs 25, 26,27,28 and 29 are reproduced hereunder:
"25. यह कि वास्तविकता यह है कि प्रारम्भ में यानि लगभग 51 साल पूर्व विवादित दुकान विपक्षी उत्तरदाता के पिता हंसराज कालडा ने लाला भगवानदास से किराये पर ली थी तथा वे लगातार दुकान विवादित में किरायेदार चले आते रहे। विपक्षी उत्तरदाता का जन्म सन 1962 में हुआ तथा विपक्षी उत्तरदाता अपनी शिक्षा ग्रहण करने के दौरान अपने पिता के साथ विवादित दुकान पर बैठता चला आता था। विपक्षी उत्तरादाता ने हालांकि एम०एस०सी० मैथ से शिक्षा प्राप्त की थी परन्तु विपक्षी उत्तरादाता की रूचि प्रश्नगत दुकान पर हो रहे ऑटो इलैक्ट्रिक व्यवसाय में थी तथा विपक्षी उत्तरदाता वर्ष 1984 में विधिवत रूप से प्रश्नगत दुकान पर हो रहे कारोबार में अपने पिता के साथ भागीदार शामिल हो गया। इस सम्बन्ध में दिनांक 2-7-1984 को एक भागीदारी विलेख भी विपक्षी उत्तरदाता व उसके पिता के मध्य लिखा गया था जो मूल रूप से आयकर विभाग में दाखिल है।
26. यह कि विपक्षी उत्तरदाता वर्ष 1984 से निरन्तर प्रश्नगत दुकान पर व्यवसाय करता चला आ रहा है इस सम्बन्ध में नियमित रूप से प्रति वर्ष विपक्षी उत्तरदाता द्वारा आयकर रिटर्न दाखिल की जाती रही है।
27. यह कि विपक्षी उत्तरदाता के पिता श्री हंसराज का निधन दिनांक 6-1-1992 में हो गया। विपक्षी उत्तरदाता के पिता श्री हंसराज द्वारा अपने मरने पर अपनी पत्नि श्रीमती शीला एक पुत्री श्रीमती कैलाशरानी व 4 पुत्र ओमप्रकाश, विनोद कालडा, अशोक कालडा व विपक्षी उत्तरदाता बतौर अपने कानूनी वारिस छोडे। विपक्षी उत्तरदाता का भाई विनोद कालडा अरसा दराज पूर्व देहरादून शिफ्ट हो गया था और वहीं पर रहकर अपना व्यवसाय करता चला आता रहा। यह तथ्य आवेदक अनुज कुमार व उनके पिता के भी व्यक्तिगत ज्ञान में रहे व है।
28. यह कि विपक्षी उत्तरदाता के पिता स्व० श्री हंसराज के मरने के उपरान्त उनके सभी वारसान को हकूक किरायेदारी हस्ब मंशा कानून विवादित सम्पत्ति के विषय में प्राप्त हो गये।
29. यह कि प्रश्नगत दुकान पर विपक्षी उत्तरदाता अपने पिता के निधन के पश्चात बहैसियत प्रोपराईटर कार्य करता चला आ रहा है। इस तथ्य का ज्ञान भी आवेदक अनुज कुमार व उनके पिता को व्यक्तिगत रूप से रहा।"
15. Reply to above has been submitted by Anuj Kumar, the landlord in which vide paragraph 16 he denied about partnership firm and claimed that shop was constructed sometimes in 1975 only. In his affidavit, the landlord vide paragraph 17, it was stated that tenancy was with M/s Hansraj Vinod Kalra and tenancy continued as such. In paragraph 21, it is stated that merely because receipts used to be signed by Vijay Kalra, it cannot be said that there was any tenancy with Vijay Kalra. Paragraphs 17 and 21 of the affidavit of Anuj Kumar are reproduced hereunder:
"17. यह कि शपथ पत्र-वी के पैरा नम्बर-13 में कहे गये कथन गलत है और स्वीकार नही है। उसके प्रतिउत्तर में मैं अपने पूर्व शपथ पत्र के कथनो को पुनः दोहराता हूँ। जैसा कि ऊपर कथन किया गया है कि किरायेदारी फर्म मैसर्स हंसराज विनोद कालडा के नाम से थी। हंसराज की मृत्यु के बाद फर्म की किरायेदारी चली आती रही तथा विनोद कालडा के द्वारा ही किराया अदा किया जाता रहा। इसके विपरीत पैरा नम्बर-13 में कहे गये कथन गलत है और स्वीकार नही है।
21. यह कि शपथ पत्र-वी के पैरा नम्बर 17 में कहे गये कथन गलत है और स्वीकार नही है। जहाँ तक रसीद मुसन्ना पर विजय कालडा के हस्ताक्षर की बाबत कथन है, इस बाबत यह स्पष्ट किया जाता है कि कभी कभी आवेदक शपथकर्ता की ओर से उनका कर्मचारी किराया प्राप्त करने जाता था तो किराये की अदायगी की रसीद के काउन्टर फाईल पर विजय कालडा के हस्ताक्षर करा लेता था लेकिन रसीद मैसर्स हंसराज विनोद कुमार के नाम से ही काटी गयी। केवल विपक्षी नम्बर-2 के काउन्टर फाईल पर हस्ताक्षर मात्र से यह सिद्ध नही होता है कि वह प्रश्नगत सम्पत्ति में किरायेदार है।"
16. From the perusal of the above pleadings, this much becomes clear that tenancy continued with Hansraj since prior to 1984 as he was admittedly inducted by the father of the landlord respondent but when the partnership firm came to be formed in 1984 by the Hansraj with his son Vijay Kumar, there was no fresh tenancy agreement entered between the parties. The partnership deed, which has been brought on record does not contain any recital to the effect that this partnership firm acknowledges its address with concurrence of the landlord to provide a place for the firm to run its business. The partnership deed only acknowledges the business and partnership with Hansraj kalra having 25 per cent share and vijay Kalra having 75 per cent share. Even in 1992 when the partnership firm got dissolved with the death of Hansraj Kalra, it has not come to be established on record that partnership firm entered into some agreement of tenancy between respondent landlord and present petitioner.
17. The pleadings as I have reproduced hereinabove raised by petitioner in written statement fully demonstrate that it was tenancy inherited by heirs in succession and that petitioner has succeeded tenancy on account of being heirs of Hansraj. The affidavit of Anuj Kumar has simply states that receipts to be used issued in the name of M/s Hansraj Vinod Kalra having signed receipts, he would not become his tenant.
18. The denial established two things are very clear and that while Vijay Kalra, present petitioner claimed to be proprietorship firm having tenancy with landlord respondent whereas landlord respondent totally denied any such tenancy rights ever created in favour of partnership firm and still further there is no such document brought on record which may demonstrate that any jural relationship by landlord and tenant was created either first time in 1984 or 1992.
19. In the circumstances, therefore, tenancy rights came to be inherited by heirs and since other heirs left or get settled somewhere else as is case of the petitioner in his written statement, he succeeded tenancy. Since tenancy was in favour of individual with his death all the heirs came to be succeeded the tenancy, they become tenancy in common. The settled legal position is that if one of the tenant in common is impleaded by landlord for release other cannot question maintainability of release application. Thus, even though no release application was filed against Vijay kalra, the release application against Vinod Kalra as heirs of Hansraj was fully maintainable and Vijay Kalra having subsequently joined the release application as a part,y his release could have equally been ordered. I have already held that since there was no tenancy agreement with partnership firm merely because a tenant has formed partnership firm, the firm will not become tenant that is for individual business purpose of the tenant and to make liability of tax that tenant might have formed firm that is son, but this duration partnership would not change character of partnership and would not change the character of tenancy.
20. Now Section 3(2) of the Act is reproduced hereunder:
"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."
21. From a bare reading of the aforesaid provision it becomes clear that since building in question was non-residential, the petitioner being heir of Late Hansraj and having admittedly succeeded tenancy from his father, was to be equally bound by release application. It was fair admission on the part of the petitioner that he was tenant, he having succeeded tenancy from his father and after having admitted to be tenant even if certain amendments made to release application making specific to respondent no. 1, in the event ultimately relief was sought in the relief clause against present petitioner, petitioner could not have maintained a plea that release being not directed against him, it could not have been granted against him.
22. It is worth interesting to notice that petitioner was not party to release application and he could have remained as such to question the order of release for non joinder of necessary party but since he was aware that he had succeeded tenancy from his father and release application had rightly been filed against of the heirs who were joint tenants and since petitioner was in possession in such capacity of a tenant, order of release would certainly bind him. Since petitioner had decided to contest the matter setting up a claim of tenancy, it would be,therefore, not lie in the mouth of tenant to suggest that release order could not have been passed against him just for his admission to be a tenant. In the affidavits that have been filed by parties, I find that landlord did, of course, show that tenancy was succeeded by Vinod Kalra but he impleaded petitioner also and prayed for relief in the release application against him, so it should be taken that release application was also directed against him.
23. The judgment of the court that has been cited before him refer to Section 13 of the Tenancy Act of State of Haryana, namely, Haryana Urban (Control of Rent and Eviction) Act, of 1973. The Court has held that merely because tenant was a party, he would not be liable to be evicted unless landlord takes specific stand in view of Sub section 2 of Section 13 of said Act. From the judgment, it is not inferable as to whether there was any provision in the statute of the other state as contained under Section 3(2) of the Act No. 13 of 1972 applicable in the State of U.P. Section 3(2)very clearly stipulates that rent is payable by person upon death of tenant :
1. who is normally residing in the building at the time of his death but;
2. in the case of non residential building, his heirs.
24. This Court has interpreted the heirs to be joint tenant and has held that application for release against one is maintainable against all these heirs who inherited tenancy.
25. In the case Hajra Begum v. Mansoor Ali and Others, passed in Writ A No. 43707 of 2003 decided on 23.1.21012, the Court has held vide paragraph 21,22,23 and 24 thus:
"21. What would be the position in the context of tenant? Can a similar principle be applied in the context of joint-tenancy/co-tenancy as also in the case of tenancy in common or there are some other principles. The concept and consequences of joint-tenancy and co-tenancy and tenancy in common have been considered in various authorities. In the case of tenant in common, each one shall be an individual tenant in his own rights and tenancy will have that much of units of tenancy as the number of tenants in common. In such a case neither one tenant can represent all others nor any proceeding can be validly prosecuted without impleading all the tenants. In such a case all the tenants, i.e., tenants in common, would constitute necessary parties and without impleading anyone of them the proceedings by landlord would not be maintainable for want of necessary parties.
22. The position, however, would be different in the case of joint-tenancy/co-tenancy. Such rights come into existence as a result of devolution of certain rights to enjoy immoveable property by virtue of certain incident, natural or otherwise. For example if ''A', a tenant has ''B' wife and ''C' and ''D' sons or ''C' son and ''D' daughter; after death of ''A', tenancy rights shall devolve on all the legal heirs i.e., ''B', ''C' and ''D' without multiplying tenancy to number of legal heirs vis a vis landlord. It would continue to be a single tenancy though the legal heirs, if more than one, all shall become joint-tenant/co-tenant but continue to maintain a single unit of tenancy.
23. The concept of joint-tenancy/co-tenancy has been considered in H.C. Pandey Vs. G.C. Paul 1989 (2) ARC 26. The Apex Court said that on the death of original tenant, subject to any provision to the contrary, either negativing or limiting succession, tenancy rights devolve on the heirs of the deceased tenant. The incidence of tenancy is the same as those enjoyed by the original tenant. Thus in other words, the heirs succeed the tenancy as "joint tenants".
24. The above legal exposition was reiterated and approved by a three-Judge Bench of Apex Court in Harish Tandon Vs. Addl. District Magistrate, Allahabad and others 1991 (1) ARC 220. In para 23 and 24 of judgment, the Court said, it is difficult to hold that after the death of original tenant, his heirs become tenant in common and each one of the heirs shall be deemed to be an independent tenant in his own right. On the contrary, it is a single tenancy which devolves on the heirs and there is no division of the premises or of the rent payable therefor, and, the heirs succeed the tenancy as joint tenants. The Court also referred and followed an earlier Constitution Bench Judgment in Smt. Gian Devi Anand Vs. Jeevan Kumar and others 1985 SCFBRC 229 SC. The Bench also referred to a contrary decision in Mohd. Azeem Vs. District Judge, Aligarh 1985 (2) ARC 85 (SC), and, having considered the same in para 27, held that decision in Mohd. Azeem (surpa) does not lay down correct law. The decision in H.C. Pandey (supra) is however affirmed."
26. The Supreme Court in the case of Suresh Kumar Kohli v. Rakesh jain and Another, (2018)6 SCC 708 has distinguished co-tenancy and joint tenancy and has held that where the tenancy has jointly inherited and then it becomes joint tenancy. Vide paragraph 14 and 15 the Court has held thus:
"14. The issue at hand is what would be the status of the succeeding legal representatives after the death of the statutory tenant. In this regard, it would be worthy to discuss the two capacities viz. tenancy-in-common and joint tenancy, and the rights that one holds in these two different capacities. Fundamentally, the concepts of joint tenancy and tenancy-in-common are different and distinct in form and substance. The incidents regarding the co-tenancy and joint tenancy are different : joint tenants have unity of title, unity of commencement of title, unity of interest, unity of equal shares in the joint estate, unity of possession and right of survivorship.
15. Tenancy-in-common is a different concept. There is unity of possession but no unity of title i.e. the interests are differently held and each co-tenant has different shares over the estate. Thus, the tenancy rights, being proprietary rights, by applying the principle of inheritance, the shares of heirs are different and ownership of leasehold rights would be confined to the respective shares of each heir and none will have title to the entire leasehold property. Therefore, the estate shall be divided among the co-tenants and each tenant in common has an estate in the whole of single tenancy. Consequently, the privity exists between the landlord and the tenant in common in respect of such estate."
27. In view of above, therefore, the points stands answered in favour of landlord respondent that release was maintainable against respondent no. 2 as well, being heir of Late Hansraj as no independent tenancy could be established in favour of partnership firm or proprietorship firm.
28. In so far as question of notice is concerned, since petitioner's own admission is that respondent no. 2 was not residing and he did not receive notice, respondent no. 2 would have been best person to deny the same. Petitioner has himself admitted that Vijay Kalra, his brother was not tenant and he was tenant and had contested the matter through out, now he could not be permitted to take plea of no notice. The order to proceed ex parte after acknowledgement of notice and service at the end of landlord by the Prescribed authority was never put to challenge by either Vinod Kalra respondent no. 1 impleaded in release application, nor even by present petitioner. Hence, this Court would not go into question of service of notice upon respondent no. 1 at this stage.
29. In view of above, the petition lacks merit and is accordingly dismissed with no order as to cost.
Order Date :- 10.12.2024 Sanjeev