Allahabad High Court
Moharram Ali And Another vs Prescribed Authority, Allahabad And ... on 31 March, 1998
Equivalent citations: 1998(2)AWC1438, 1998 ALL. L. J. 1846, 1999 A I H C 2662, (1998) 2 RENCR 322, (1998) 2 ALL RENTCAS 50, (1999) 1 RENTLR 123, (1998) 34 ALL LR 483, (1998) 2 CURCC 419, (1998) 2 ALL WC 1438
Author: J.C. Gupta
Bench: J.C. Gupta
JUDGMENT J.C. Gupta, J.
1. Heard petitioners' counsel and learned counsel for the respondent Nos. 3 and 4 as well as the learned standing counsel.
2. Some of the undisputed facts are that the landlord-petitioners filed an application for release under Section 21 (1) (a) of the U. P. Act No. XIII of 1972 before the prescribed authority against Mohd. Farooq respondent No. 2. real brother of respondent Nos. 3 and 4. The application for release of the landlord-petitioners was allowed and the appeal filed by the respondent No. 2-tenant was also dismissed on 22.7.84. Thereafter Mohd. Farooq-respondent No. 2 filed Writ Petition No. 14615 of 1984. The said writ petition was dismissed on merits on 22.11.1984 and an undertaking was given on behalf of the tenant-Mohd. Farooq that he would vacate the building in question within six months. When the undertaking given by the tenant was not respected, the petitioner moved a contempt petition in this Court as well as filed an application under Section 23 of the Act for the enforcement of the release order and for obtaining possession of the house in question. When the occasion to enforce the order arose, for the first time at this stage respondent Nos. 3 and 4 objected to the delivery of possession and they filed civil suit against the petitioner for an Injunction restraining him from evicting them otherwise than in due course of law. A prayer for interim injunction was also made in that suit which was refused by the trial court. In the appeal filed by respondent Nos. 3 and 4. a temporary injunction was granted in their favour which was challenged by the petitioner in this Court in a writ petition. In that writ petition which is also connected with this writ petition, an interim order was passed that respondent Nos. 3 and 4 may put their grievances in the form of objections before the Court executing the release order under Section 23 of the Act. The respondent Nos. 3 and 4 then filed objections, inter alia, pleading that in the house in question, their father Rahim Buksh was the original tenant and upon his death, tenancy was devolved upon his three sons, namely, Mohd. Farooq respondent No. 2, Mohd. Slddlq respondent No. 3 and Mohd. Ali respondent No. 4 and since they were not impleaded as parties in the release application moved by the petitioner, the release order obtained by the petitioner was not binding upon them and they could not be evicted in execution thereof. In the impugned order, the learned prescribed authority has accepted this objection of the respondent Nos. 3 and 4. Aggrieved, the petitioner has approached this Court in this writ petition.
3. Learned counsel for the petitioner argued that even accepting the findings recorded by the prescribed authority, at best it could be said that the respondent Nos. 3 and 4 inherited tenancy rights of their father as joint tenants along with Mohd. Farooq respondent No. 2 and, therefore, the order passed in the release application moved earlier is also binding upon them.
4. Learned counsel for the petitioner placed reliance on the decision of the Supreme Court in H. C. Pandey v. C. C. Paul, AIR 1989 SC 1470, wherein it was held that on the death of the original tenant, subject to any provision to the contrary either negativing or limiting the succession, the tenancy rights devolve on the heirs of the deceased-tenant as joint tenants and not as tenants in common. The incidence of the tenancy are the same as those enjoyed by the original tenant. It is a single tenancy which devolves on the heirs. There is no division of the premises or of the rent payable therefor. That is the position as between the landlord and the heirs of the deceased-tenant. In that case, it was held that service of notice under Section 106 of Transfer of Property Act on one of the heirs of the original tenant was sufficient. In the case of Harish Tandon v. Addl, District Magistrate, Allahabad and others, 1995 (1) ARC 220, in para 23, it was held that it is difficult to hold that after the death of the original tenant, his heirs become tenants-in-common and each one of the heirs shall be deemed to be an independent tenant in his own right, in para 24, it was further held that 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 to the tenancy as joint tenants.
5. In view of the above decisions, the position is now well-settled with regard to the rights of the heirs who succeed to the tenancy after the death of the original tenant. They succeed as Joint tenants and not as tenants-in-common. Their tenancy remains a single tenancy and the mere fact that rent is only paid by one of the legal heirs would not have the effect of splitting the tenancy. In a recent decision of this Court in Krishna Kumar Agrawal v. XIIth Addl District Judge, Moradabad and others. 1995 (2) ARC 637. It was also held that if an application for release has been allowed impleading only some of the heirs left by the deceased-tenant, the order cannot be quashed merely on the ground of non-impleading of all the legal heirs of the deceased-tenant.
6. In the present case, undisputedly Mohd. Farooq respondent No. 2 is the real brother of respondent Nos. 3 and 4, he as per the own case of respondent Nos. 3 and 4 also inherited tenancy rights along with them as joint tenants and it is admitted in the counter-affidavit that the tenancy remained one and the same and it had never been bifurcated or splitted. It could not be shown by them that after the death of the original tenant, they themselves were paying rent in their own rights and it was not disputed that the rent was being paid by Mohd. Farooq only. It is also not in dispute that the release application was made against Mohd. Farooq without impleading respondent Nos. 3 and 4 and Mohd. Farooq contested the said release application upto this Court and after having lost from all corners, an undertaking was given by him to deliver possession of the house in question to the landlord-petitioner within six months. However, instead of complying with that undertaking and respecting the Court's order, it appears that a collusive application has been moved by respondent Nos. 3 and 4 in order to defeat the fruits of the order to which the petitioner-I and lord was entitled to after the expiry of period of six months as mentioned in the undertaking given by Mohd. Farooq as early as in the year. 1984. There could not be any better case than the present one to show abuse of process of Court. When Mohd. Farooq lost every battle, it appears that he has set up his two brothers to resist the execution of the release order despite giving an undertaking to vacate the house in question within the specified period of six months. There is no finding nor any material on record to hold that Mohd. Farooq was in collusion with the present landlord-petitioner. It also does not sound to reason that if he was in collusion, he would have contested the preceding right upto the stage of this Court. The view taken by the Court below, therefore, is patently erroneous and not sustainable in law. The execution of the order of release made in favour of the petitioner could not be refused only on the ground of non-impleadment of respondent Nos. 3 and 4 in the release application as they were merely joint tenants along with Mohd. Farooq in the premises in question even as per their own case.
7. Learned counsel for the respondents argued before this Court that while considering the release application moved against Mohd. Farooq at no stage, the need of the present respondents vis-a-vis the landlord was considered nor their hardship were compared. Since Mohd. Farooq had contested the said application and his contention was not accepted and it was held upto this Court that the landlord was in bonafide need of the house in question, the question of bonajide need cannot be reopened.
8. Learned counsel for the respondents further argued that in the aforesaid release application, the petitioners-landlords had impleaded Mohd. Farooq as the sole tenant and not as an heir of the deceased-tenant, therefore, the decisions cited on behalf of the petitioner have no relevance for deciding the question in controversy here. It may be stated that the respondent Nos. 3 and 4 are objecting to the execution of the order of release made against Mohd. Farooq and as per their own case, they do not claim any independent rights in themselves and they claim only rights as Joint tenants with Mohd. Farooq. It is also their case that the tenancy has remained one and same and there has been no splitting thereof after the death of their father.
9. In these circumstances, it can safely be held that the respondent Nos. 3 and 4 were duly represented by Mohd. Farooq in the proceedings held before the prescribed authority on the release application moved by the petitioners-landlords.
10. For the above reasons, this writ petition must succeed and ts allowed. The order of the prescribed authority dated 20.9.1985 (Annexure-6 to the writ petition) is set aside and the prescribed authority is directed to put forthwith the petitioners-landlords in actual possession of the house in question after getting the respondent Nos. 3 and 4 evicted in accordance with the procedure prescribed under the Act.
11. In the circumstances, this Court also feels that for having dishonoured the undertaking given before this Court and for delaying the execution of the release order for a period of about 14 years, the respondents should be punished with heavy costs. Learned counsel for the petitioner further pointed out that during this period of 14 years, rent amounting to Rs. 1.728 has become due which has neither been paid by Mohd. Farooq nor by respondent Nos. 3 and 4.
12. In the circumstances, this Court feels that ends of Justice would be met if the contesting respondents are directed to pay the entire amount of rent due upto date and a sum of Rs. 5,000 as costs to the petitioner within one month, falling which the costs and the aforesaid amount shall be got recovered by the prescribed authority in accordance with the provisions of sub-section (3) of Section 34 of the Act.
13. The connected Writ Petition No. 7309 of 1985 has become infructuous in view of the aforesaid order and, therefore, the same is also disposed of.
14. The Writ Petition No. 2503 of 1986 is allowed while Writ Petition No. 7309 of 1985 is disposed of as infructuous.