Himachal Pradesh High Court
Ramesh Chander Sehgal vs Rajesh Kumar And Others on 5 June, 2015
Author: Rajiv Sharma
Bench: Rajiv Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA.
CMPMO No. 160/2015
.
Reserved on: 20.5.2015
Decided on: 5.6.2015
___________________________________________________
Ramesh Chander Sehgal. ...Petitioner.
Versus
Rajesh Kumar and others. ...Respondents.
______________________________________________________________
Coram:
Hon'ble Mr. Justice Rajiv Sharma, Judge.
Whether approved for reporting? 1 Yes
For the Petitioner: Mr. Bhupender Gupta, Sr. Advocate with
Mr. Neeraj Gupta, Advocate.
For the Respondents: Mr. Ashok Sood, Advocate for respondents
No.1 and 2.
_________________________________________________________
Justice Rajiv Sharma, Judge:
This petition is instituted against the order dated 10.4.2015 rendered by the Rent Controller, Shimla in CMA No. 9-6 of 2015 in Rent Case No. 7/2 of 2011.
2. "Key facts" necessary for the adjudication of this petition are that respondents No.1 and 2 (hereinafter referred to as the "landlords" for convenience sake) have 1 Whether reporters of the local papers may be allowed to see the judgment? Yes ::: Downloaded on - 15/04/2017 18:21:18 :::HCHP 2 instituted a petition under section 14 of the H.P. Urban Rent Control Act for eviction of respondents No. 3 to 5.
.
According to the averments made in the petition, shop bearing No.61 was more than 100 years old. The premises were rented out to the predecessor-in-interest of respondents No.3 to 5 in the year 1945. The premises under occupation of respondents No.3 to 5 were bona fide required by the landlords for setting up the office-
cum-business premises. Respondent No.1 is 65 years of age. He is graduate in Engineering. He retired as Chief Engineer from H.P.S.E.B. He has no suitable accommodation for running the proposed professional work in the premises occupied by the tenants. He has also decided to shift his daughter Mrs. Itee to Shimla so that she can take care of him and his wife in old age.
They proposed to put up an internet café.
3. The petition was contested by the tenants.
According to the averments made in the reply, respondent No.1 is having sufficient income and he had no intention to start any consultancy business. He owns a number of properties in Shimla. He has also independent house at Lower Jakhu, Shimla town. He ::: Downloaded on - 15/04/2017 18:21:18 :::HCHP 3 has sufficient accommodation if he wants to start the consultancy business. Mrs. Itee is happily married and .
living with her in laws in their family.
4. Petitioner moved an application under order 1 rule 10 read with section 151 of the Code of Civil Procedure for impleadment as respondent in the rent petition. According to the averments made in the application, his father expired on 28.1.2002 leaving behind the petitioner and his brother as legal heir and the estate of the deceased devolved upon him and his brother. He was ordinarily living with his father and was carrying on business in the suit premises/rented premises with his father. He had been rendering assistance to his father in the management and running of the shop. He was looking after the business after the death of his father. He was in possession of the tenanted premises. He is a necessary and proper party being successor of late Sh. Prithi Chand. On 4.11.2014, petitioner is conducting his routine business in the rented premises. Sh. Rajesh Kumar came to the premises alongwith 3-4 persons and threatened him to vacate the premises in dispute on or before 31.3.2015.
::: Downloaded on - 15/04/2017 18:21:18 :::HCHP 45. The application was contested by the landlords. According to them, application has been filed .
to delay the proceedings. Petitioner was fully aware of the pendency of the petition right from its inception.
Petitioner has suppressed material facts from the court.
He was an employee of H.P. Irrigation and Public Health Department. He served the department for about 35 years. He retired on 31.1.2005 as Assistant Engineer/SDO from the department. He has falsely alleged that he was working with his father in the premises in question. It is also stated in the reply that when statutory tenancy is inherited by any legal heirs of deceased tenant then it devolves on them as joint tenants and not tenant in common. One legal heir who was in actual physical possession and working in shop duly represented the interest of other joint tenants who were not working in the shop. Since the petitioner was not in control of business being in Government job, he is deemed to have surrendered tenancy right. He was thus not a necessary party. He could not indulge in business being a Government servant. He was present in the court on 23.4.2013 when the statement of his brother ::: Downloaded on - 15/04/2017 18:21:18 :::HCHP 5 was recorded. Tenants in the reply filed to earlier petition before the Rent Controller (7) had admitted the .
fact that they were only tenants of the landlords and there was no other tenant qua the premises in question.
Petitioner has never paid the rent to the landlords. Rent Controller dismissed the application on 10.4.2015.
Hence, the present petition.
6. It is evident from the material placed on record that the premises in question were rented out in the year 1945. Respondent No. 4 Kewal Krishan Sehgal and the petitioners are the sons of late Sh. Prithi Chand.
He died on 28.1.2002. The matter was listed for arguments on 11.7.2014. The application under order 1 rule 10 of the Code of Civil Procedure was filed on 3.12.2014. Kewal Krishan, while appearing as RW-1 in his cross-examination, has admitted that he has two brothers and his elder brother Ramesh Chander, i.e. petitioner was present in the court on 23.4.2013. Thus, petitioner knew about the pendency of rent petition. The application was filed on 3.12.2014 after 19 months. It is also not believable that petitioner if he claims to be doing the business did not know about the pendency of the ::: Downloaded on - 15/04/2017 18:21:18 :::HCHP 6 rent petition. He being a Government servant could not undertake business. He has retired on 31.3.2005 as .
Assistant Engineer/SDO and there was no question of his being in business before this date. It is also not evident from the record that there is any evidence of the petitioner paying rent to the landlords or depositing the same in the Court. It was only respondent No.4, who was carrying on business in the premises and in these circumstances, other heirs have impliedly surrendered their rights of tenancy.
7. Learned Single Judge of Delhi High Court in Sushil Kumar vs. Bhagwanti Devi and another, 1989 (1) RCR 365 has held that when the death of tenant of shop occurs and only one of the heirs of tenant continued business and paying rent and getting receipts, other heirs would be deemed to have surrendered their tenancy rights. Learned Single Judge has held as under:
"[14] It is settled principle of law that implied surrender or surrender by operation of law occurs firstly by creation of new relationship or secondly by relinquishment of possession. Implied surrender does not depend on the intention of the parties, like express surrender. It has to be implied from the conduct of the parties. The principle underlying Sec. 111(f) of the Transfer of Property Act is that whatever relationship exists between two parties in respect of particular premises ::: Downloaded on - 15/04/2017 18:21:18 :::HCHP 7 and new relationship arises, if two sets of relationships cannot exist as being inconsistent and incompatible that is to say, if the latter can come into effect only on termination of earlier, .
that would be deemed to have been terminated in order to enable the latter to operate. The essence of implied surrender is net change of possession but the doing of an act which is inconsistent with the continuance of the lease or tenancy.
[15] In view of the admitted facts that after the death of Chaman Lal, Susbil Kumar alone was issued rent receipts in respect of the premises by the respondents-landlords ; other heirs never asserted their tenancy rights and could not produce any rent receipts issued by the respondents-landlords in their favour ; Sushil Kumar was alone carrying on business in the shop ; and other facts, the only inevitable conclusion which can be drawn is that the conduct of the parties is in inconsistent with the continuance of lease of the other heirs of Chaman Lal after his death and is in conformity with creation of new relationship of tenant and landlord between Sushil Kumar and the respondents. Therefore, I uphold the contention of the learned counsel for the respondents- landlords and endorse the finding of the learned Tribunal that Sushil Kumar was alone attorned as tenant after the death of Chaman Lal and by conduct other heirs would be deemed to have surrendered their tenancy rights, if any, impliedly."
8. Learned Single Judge of Delhi High Court in Mohd. Usman vs. Mst. Surayya Begum, 1990 (2) RCR 408 has held that decree is binding against all the heirs even obtained against one of the heirs. Learned Single Judge has held as under:
"[5] I find no force in the contention raised by the learned counsel for respondent No. 1. The provision regarding inheritance of tenancy in respect of Mahomedans and Hindus is not different. The Supreme Court in Gian Devi Anand's case ::: Downloaded on - 15/04/2017 18:21:18 :::HCHP 8 has no doubt observed that tenancy right which is inheritable devolves on the heirs under the ordinary law of succession. It only means that only those heirs who would be entitled to .
inherit the property of a deceased tenant under the ordinary law of succession would be entitled to inherit even the right of tenancy after the death of the tenant. This position is amply clear from the fact that even under Section 19 of the Hindu Succession Act 1956 which prescribes the mode of succession of two or more heirs provides that if two or more heirs succeed together to the property of an intestate they shall take the property as tenants in common and not as joint tenants and in-spite of this the Supreme Court in H.C. Pandey's case has observed that the heirs of a deceased tenant succeed to the right of tenancy as joint tenants. The Supreme Court in H.C. Pandey's case has observed as follows:-
r"It is now well settled 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. 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 there. That is the position as between the landlord and the heirs of the deceased tenant. In other words, the heirs succeed to the tenancy as joint tenants. In the present case it appears that the respondent acted on behalf of the tenants, that he paid rent on behalf of all and he accepted notice also on behalf of all. In the circumstances, the notice was served on the respondent was sufficient. It seems to us that the view taken in Ramesh Chand Bose (AIR 1977 All. 38) is erroneous where the High Court lays down that the heirs of the deceased tenant succeed as tenants in common. In the Transfer of Property Act notice served by the appellant on the respondent is a valid notice and therefore the suit must succeed."
[6] In the light of the above observations of the Supreme Court there can be no doubt that even if one of the legal heirs is not a party to proceedings for eviction filed by ::: Downloaded on - 15/04/2017 18:21:18 :::HCHP 9 the landlord against the legal heirs of the original tenant, that heir who has been left out cannot later on come forward and agitate his or her right in the tenancy. In the present case, I .
find that Surayya Begum who claims to be living in the same disputed premises alongwith other legal heirs after the death of Khalil Raza has chosen to file her objections after the whole round of litigation is over and after the other legal heirs have lost right upto the Supreme Court. It is thus clear that these objections are filed only to defeat the decree and delay the execution of the decree. In my view, therefore, even if Surayya Begum was not a party to the previous litigation between the parties she has no right to object to the execution of the decree and the Additional Rent Controller ought to have dismissed the objections on that ground alone."
9. Their Lordships of the Hon'ble Supreme Court in Pushpa Rani and others vs. Bhagwanti Devi and another, AIR 1994 SC 774 have explained the principles when implied surrender by other heirs of their rights of tenancy can be inferred as under:
"[7] The contention strenuously urged by Sri Aruneshwar Gupta in support of these appeals is that it is a settled law that even a non-residential tenancy is heritable, that the heirs of a deceased tenant inherit the tenancy and that the decree against Sushil Kumar alone was insufficient to denude the rights of the appellants who are the other heirs.
On a consideration of the evidence, the High Court concurring with the findings of fact on the point recorded by the Rent Controller and the Tribunal, held that after the death of Chaman Lal it was Sushil Kumar alone who continued in occupation of and was carrying on the business in the premises and that in the circumstances of the case the other heirs must be held to have surrendered their rights of tenancy. This implied surrender was inferred from the ::: Downloaded on - 15/04/2017 18:21:18 :::HCHP 10 evidence as to the conduct of the other heirs. The principle in Gian Devi's case (1985 (1) Suppl. SCR 1 : (AIR 1985 SC 796) as to the heritability of a non-residential tenancy relied upon by .
Sri Gupta does not detract from, and is not inconsistent with, the principle of implied-surrender. The finding on implied- surrender, in our opinion, is supported by the evidence on record. Both the Rent Control Tribunal and the High Court, in our opinion, were right in not countenancing the claim of the heirs which incidentally came through the challenge on the executing side. So far as the appeal of Sushil Kumar is concerned, there is hardly anything that can be said in support of it."
10. In the instant case, if the petitioner is permitted to be impleaded at this stage, it would amount to de novo trial, more particularly, when the case was already listed for final arguments.
11. Learned Single Judge of Delhi High Court in Prakash Wati Bali vs. Manish Dewan, 1996 (2) RCR 378 has held that tenant leaving behind a number of legal heirs, only one of them paying rent and obtaining rent receipts from landlord and others did not object nor asserted tenancy rights, the other legal heirs impliedly surrendered the tenancy. Learned Single Judge has held as under:
"[8] The Supreme Court in the case of Mst. Surayya Begum (supra) dealt with the question, as to whether, the eviction decree against one of the legal heirs who was not made a party to the proceedings was valid, the Court came to the ::: Downloaded on - 15/04/2017 18:21:18 :::HCHP 11 conclusion that the eviction decree obtained by the landlord is binding on all the legal heirs of the deceased-tenant irrespective of whether or not they were impleaded as parties .
to the eviction proceedings. However, such heirs are entitled to object to the decree on the ground of fraud or collusion between the landlord and the other heirs of the deceased- tenant and if it can be shown any conflict of interests.
[9] In the background of the settled law the facts of the present case may be looked into. It is established that appellant No.2 after the death of his father was accepting the rent receipts and was paying rent and rent receipts were issued in his name in respect of the premises. He has also admitted that neither his mother nor sister nor any of the brothers ever objected to it. The mother, appellant No.1, remaining two brothers and sisters never asserted their tenancy rights. The Rent Controller as well as the Rent Control Tribunal,therefore, came to the obvious conclusion that there was implied surrender of tenancy by the other heirs of the deceased-tenant in favour of appellant No.2 who alone became the tenant in the disputed premises. It may also be noticed that in the eviction petition filed by the earlier landlady Smt. Kishan Devi, appellant No.2 was only made party as a tenant. In paragraphs 3 and 9 of the eviction petition the specific plea was taken that Shri S.C.Bali was the tenant and the premises were occupied by him. The said appellant clearly replied to the averments made in the eviction petition and accepted that he was the tenant and was living in the premises along with his family. Similarly, the position is not denied in his own statement recorded as R.W.1.
In the above background the conduct of appellant No.2 cannot be held to be bona fide and even in the present proceedings he has been contesting the same as it is conceded by the learned counsel for the appellant that he will be the ultimate beneficiary if this appeal is accepted. There is no challenge to the findings by appellant No.2 and the learned counsel has only confined his relief qua appellant No.1. The facts, accordingly, establish that appellant No.2 was admittedly ::: Downloaded on - 15/04/2017 18:21:18 :::HCHP 12 accepted as a tenant after the death of his father and in the absence of any collusion or mala fide on his part to defend the case and conflict of interest between himself and the .
respondent-landlord, the plea of appellant No.1 to be impleaded as a party at a belated stage before the Tribunal could not have been entertained and her application, as a consequence, was correctly dismissed. It is held by this Court in the judgment as reported in Mohd. Usman (supra) that a decree for eviction is binding against all the heirs even when one of the heirs is not impleaded as a party. The judgments cited by the learned counsel for the appellants will be, therefore, of no application to the present case."
12. Learned Single Judge of Delhi High Court in Smt. Amrit Kaur vs. M/s Om Prakash Fateh Chand Ltd., 2000 (1) RCR 286 has held that the plaintiff is the dominus litis of his litigation and he cannot be compelled to fight against a person against whom he does not wish to fight and against whom he does not claim any relief. Learned Single Judge has held as under:
"[8] It is well settled proposition of law that as a rule a party cannot be added when the plaintiff is opposed to such addition. Plaintiff is the dominus litis of his litigation. He cannot be compelled to fight against a person against whom he does not wish to Fight and against whom he does not claim any relief. A third person is only impeaded as a party in exceptional cases as has been mentioned in South Asia Industries Pvt. Ltd. 's case (supra). Certainly not in a case where the petitioner herself has taken contradictory stands."::: Downloaded on - 15/04/2017 18:21:18 :::HCHP 13
13. Division Bench of Calcutta High Court in Santosh Kumar Mitra vs. Smt. Snehalata Roy, 2000 .
(2) RCR 616 has held that when the suit was filed for eviction against all legal heirs except one who had left the premises, the suit was not bad and there was implied surrender of tenancy by the legal heir who left the premises. Division Bench has held as under:
"[8] Be that as it may, as noted herein earlier, we may note that originally one Surendra Krishna Mitra was a tenant in respect of the suit premises under Promotha Nath Roy Public Charitable Trust and after his demise, the tenancy was inherited by all the heirs of the deceased Surendra Krishna Mitra. But the rent receipts were issued only in the name of defendant No. 1 by the Promotha Nath Roy Charitable Trust, the previous landlord. After purchase, by the respondent from Promotha Nath Roy Charitable Trust, the said trust issued a letter of attornment in favour of Sri Sudhangshu Kumar Mitra defendant No. 1 only and accordingly, Sudhangshu Kumar Mitra on behalf of the heirs and legal representative of the deceased tenant paid rent to the plaintiffs/respondents and the plaintiffs/respondents also granted rent receipt in the name of the defendant No. 1 Sudhangshu Kumar Mitra. In the year 1984, an ejectment suit was filed by the respondents for eviction against the defendant No. 1 only but the said suit was subsequently withdrawn after finding that an application for addition of party was filed by the defendant Nos. 5 and 7 on the ground that on the death of the original tenant Surendra Krishna Mitra, all the heirs and legal representatives of the deceased original tenant became monthly tenants under the plaintiff/respondents. In order to shorten the litigation, the plaintiffs/respondents thought it fit to withdraw the suit which was filed against defendant No. 1 alone and accordingly ::: Downloaded on - 15/04/2017 18:21:18 :::HCHP 14 the present suit was filed for eviction on the ground of reasonable requirement against all the heirs and legal representatives of the deceased tenant excepting Smt. Anita .
Mitra. Now the question is whether without making Smt. Anita Mitra a party to the suit, the suit could be decreed by the trial Court. In our view, the trial Court was, in the facts and circumstances of this case, fully justified in decreeing the suit of the plaintiffs/respondents even in the absence of Smt. Anita Mitra. It is true that on the death of one of the heirs and legal representatives of the deceased original tenant Sisir Mitra, his widow Smt. Anita Mitra was not made a party in the suit although his son who is appellant No. 2 before us was made a party to the same. It is not in dispute in this case that Smt. Anita Mitra has not been living in the suit premises for a long time and in fact has now become practically a permanent resident of Delhi. As noted hereinafter, the admitted position is that on the death of the original tenant, the tenancy was made in the name of the defendant No. 1 only and the rent receipts which were issued by the plaintiffs/respondents also stood in the name of the defendant No. 1 only. It is also an admitted position that one of the heirs and legal representatives of Sisir Kr. Mitra who was also one of the heirs and legal representatives of the deceased original tenant was made a party to the suit. The appellants also duly contested the suit by filing a written statement and denied the requirements of the plaintiffs/respondents of the suit premises. They also adduced evidence in support of their case in defence. Therefore, the question is whether the estate of the original deceased tenant was duly represented in the suit or not. In our view, in the facts and circumstances of the case as noted hereinabove, the principles relating to doctrine of representation would operate or at least in its number inasmuch as when from the record, it appears that Smt. Anita Mitra was residing elsewhere and all the heirs and legal representatives of the deceased tenant made arrangement that rent was to be paid by the defendant No. 1 alone, the question of filing the suit also against Smt. Anita Mitra cannot ::: Downloaded on - 15/04/2017 18:21:18 :::HCHP 15 arise as it has to be presumed that the defendants had represented Smt. Anitra Mitra also by the application of the principles of doctrine of representation.
.
[11] There is yet another aspect of this matter.
It is an admitted position in this case that Smt. Anita Mitra had never exercised any right of tenancy in the disputed premises after the death of the original tenant or after the death of her husband Sisir Kr. Mitra. On the contrary, only the defendant No. 1 on the death of the original tenant paid rent to the plaintiffs/respondents on behalf of all the heirs and legal representatives of the deceased tenant. Only the defendant Nos. 5 and 7 by contesting the suit claimed to have acquired right of tenancy by inheritance in respect of the suit property. The defendant No. 1, in whose name, the rent receipts were issued by the landlord also did not choose to contest the suit. It is an admitted position that at any point of time that is to say during the pendency of the earlier suit for eviction which was filed only against the defendant No. 1, although the defendant Nos. 5 and 7 asserted their tenancy right by filing an application under Order 1 Rule 10 of the Code of Civil Procedure even then at that stage, Smt. Anita Mitra did not come forward to assert her right of tenancy in the suit premises. Either in the written statement or in the evidence it has not been stated that Smt. Anita Mitra has ever exercised any right of tenancy after the death of the original tenant or after the death of her husband. It is also not evident from the records that there was evidence that Smt. Anita Mitra paid rent either to the plaintiffs or to the defendant No. 1 after the death of the original tenant or after the death of her husband. It is also not evident from record that Smt. Anita Mitra did ever deposit any rent in the office of the Rent Controller, in respect of the suit premises. Therefore, all the above facts, in our view, would lead us to conclude that Smt. Anita Mitra had relinquished her right of tenancy in the suit premises by her conduct as aforesaid more so when there is no evidence that Smt. Anita Mitra has been residing in the suit premises nor she visits the suit premises regularly and on the ::: Downloaded on - 15/04/2017 18:21:18 :::HCHP 16 other hand she has been living in Delhi permanently. In the case of Pusparani and others v. Bhagwanti Devi and another, 1994 Supp3 SCC 76, in paragraph 9 the Supreme Court .
observed as follows :-
"On a consideration of the evidence, the High Court concurring with the findings of fact on the point recorded by the Rent Controller and the Tribunal, held that after the death of Chaman Lal it was Sushil Kumar alone who continued in occupation of and was carrying on the business in the premises and that in the circumstances of the case the other heirs must be held to have surrendered their rights to tenancy. This implied surrender was inferred from the evidence as to the conduct of the other heirs. The principle in Gian Devi case as to the heritability of a non-residential tenancy relied upon by Shri Gupta does not detract from and is not inconsistent with the principle of implied surrender. The finding on implied surrender, in our opinion, is supported by the evidence on record. Both the Rent Control Tribunal and High Court, in our opinion, were right in not countenancing the claim of the heirs which incidentally came through the challenge on the executing side. So for as the appeal of Sushil Kumar is concerned, there is hardly anything that can be said in support of it."
[12] From the aforesaid decision of the Supreme Court, it can be concluded that since in this case admittedly Smt. Anita Mitra is not residing in the suit premises for a long time and in fact has been living in Delhi permanently, a case of implied surrender can easily be inferred from the evidence and the conduct of other defendants. Therefore, we are unable to hold that in the facts and circumstances of the case either the suit is bad for defect of parties or the notice was illegal and invalid as it was not addressed to or served upon Smt. Anita Mitra. Before parting with the submissions regarding the point of dismissal of the suit for defect of parties and illegality of the notice to quit as the same was not served upon Smt. Anita Mitra, we may note that both the aforesaid submissions of Mr. Bagchi were not urged before the trial Court and, therefore, ::: Downloaded on - 15/04/2017 18:21:18 :::HCHP 17 they may not be permitted to raise such submissions for the first time in appeal. Union of India v. N.V. Phoneedran, 1995 6 SCC 45."
.
14. Learned Single Judge of Madhya Pradesh High Court in Fatima Bai vs. Shakir Ali and others, 2005 (1) RCR 159 has held that when the tenant leaves behind a number of legal heirs, suit for eviction against only one of the heirs who was actually occupying the premises and paying rent, was maintainable.
Single Judge has held as under:
"[7] DW/1 Fatima Bai has stated that her husband late Ali Learned Husain was first inducted into the tenancy. On his death she continued paying rent to the plaintiff/respondent late Tahir Ali. Late Ali Husain was survived by herself the widow, four daughters and 2 sons. As against this statement, PW/1 Shakir Ali in para 11 has stated that the defendant/appellant DW/1 Fatima Bai was inducted into tenancy some 14-15 years ago on monthly rent of Rs. 15/- per month. Stressing on the statement of DW/1 Fatima Bai, it has been contended that all heirs of contractual tenant late Ali Husain on his death notwithstanding they are in possession or not ought to have joined as tenants in the suit seeking eviction of defendant/appellant Fathima Bai. In Shambhudayal v.
Suleman, 1978 MPLJ 541 and Kanhaiyalal v. Shri Ram Singh,1991 JabLJ 119 considering the matter it has been held that the heirs on death of the original tenant, were joint tenants qua landlord and service of notice on the defendant alone was sufficient to determine the entire tenancy. Suit against such defendant who was in actual possession was maintainable. In this case DW/1 Fatima Bai has admitted that she was paying rent to late Tahir Ali. The suit house in fact is ::: Downloaded on - 15/04/2017 18:21:18 :::HCHP 18 in her possession. As such, the plaintiff/respondents having sent the notice (Ex. P/2) rightly instituted the suit for eviction only against the defendant/appellant. Therefore, .
decree of eviction cannot be assailed on this ground."
15. Learned Single Judge of this High Court in Raj Rani and others vs. Naresh Kumari Puri and others, 2007 (1) Shim. L.C. 149 has held that when heirs of tenant on his death succeeded to his tenancy, service of notice to one is sufficient to all.
16. Learned Single Judge of this High Court in Harish Kumar Plaha vs. Shashi Kumar and others, Latest HLJ 2009 (HP) 371 has held that implied surrender can be established by conduct of parties even if there is no intention to surrender. In this case, the tenant after the death of father did not reside in the tenanted premises and never paid rent amount, thus, it was a case of implied surrender. Learned Single Judge has held as under:
"5. Ms. Radhika Gautam appearing on behalf of the respondents-landlords No. 1 and 2 contends that she is not disputing the proposition of law that tenancy is heritable. According to her, in the present case, it is apparent that the applicant had surrendered his right of tenancy. In support of her submission she has made reference to Section 111 (f) of the Transfer of Property Act which provides that the lease of immoveable property may be determined by implied ::: Downloaded on - 15/04/2017 18:21:18 :::HCHP 19 surrender. She submits that the death of the original tenant took place in 1985. Thereafter it is only respondent No.3 who was inducted as tenant in the premises. The rent for all these .
years was paid only by defendant No.3. The applicant never remained in possession of the tenanted property nor he ever paid the rent for the same and therefore, the only conclusion is that the applicant had surrendered his tenancy.
6. In the application filed by the petitioner, there is no allegation that the applicant and his step brother are doing a joint business or that that they are residing in a joint family. All that was stated was that after the death of Ram Nath Plaha the applicant alongwith defendant No.1 came into possession of the suit property. This fact is not correct. One of the main argument of Shri Anand Sharma was that the deceased father was running a joint business in the premises and this business was jointly inherited by the applicant and his brother. This submission is without any basis since no such allegations have been made in the application. In fact, the applicant has not seriously contested the stand of the landlords that after the death of Ram Nath Plaha the applicant never remained in possession of the premises nor paid any rent thereof. The original defendant did not also raise the plea that the applicant is also a joint tenant in the premises. There is no proof that the brothers are living jointly or that they have a joint mess or that they are residing as a joint family. In fact, from the material on record, it appears that they are not real brothers but step brothers and they have never lived together.
7. The Andhra Pradesh High Court in Konijeti Venkayya and another vs. Thammana Peda Venkata Subbarao and another, AIR 1957 Andhra Pradesh 619 (V 44, C 205, Oct.) considered the scope of ambit of Section 111(e) of the Act. In para 12 of the said judgement, it was held as follows:-
"..........Implied surrender is, however, recognized and provided for by section 111, clause (f) of the Transfer of Property Act and the illustration thereto, which refers to a lessee accepting from his lessor a new lease of the property leased, to take effect during the continuance ::: Downloaded on - 15/04/2017 18:21:18 :::HCHP 20 of an existing lease. The illustration is oviously not exhaustive of cases of implied surrender. The principle of implied surrender or surrender by operation of Law .
was thus enunciated by Parke, B in (1844) 153 ER 118 at p. 127 (E).
This term is applied to cases where the owner of a particular estate has been a party to some act, the validity of which he is, by law, afterwards estopped from disputing and which would not be valid if this particular estate had continued to exist. There the law treats the doing of such act as amounting to a surrender..... All the old cases will be found to depend on the principle to which we have adverted, viz., an act done by or to the owner of a particular estate the validity of which he is estopped from disputing and which could not have been done if the particular estate continued to exist. The law there says, that the act itself amounts to a surrender. In such case it will be observed there can be no question of intention. The surrender is not the result of intention. It takes place independently and even in spite of intention."
8. Similar view was taken by a single Judge of the Allahabad High Court in Smt. Madhubala vs. Smt. Budhiya and another, AIR 1980 Allahabad 266, wherein the Court has observed:-
"In the instant case none of the heirs have come up before the court to assert their tenancy rights. The name of the heirs have also not been categorically stated. None of the alleged heirs are living in the property. None of them have paid any rent and it is the own case of the respondents that they alone are the tenants of the property. In the circumstances it is a clear case of implied surrender of tenancy by other heirs of Kundan."
The aforesaid Judgement was approved by the Division Bench of the Allahabad High Court in J.J.Pancholi vs. Sridharjee and others, AIR 1984 Allahabad 130. The Rajasthan ::: Downloaded on - 15/04/2017 18:21:18 :::HCHP 21 High Court has also taken a similar view in Noratmal vs. Mohanlal AIR 1966 Rajasthan 89.
9. From the perusal of the aforesaid judgements and a .
bare reading of Section 111(f), it is apparent that the Transfer of Property Act recognizes the concept of implied surrender. This implied surrender can be established by the conduct of the parties. Even if there is no intention to surrender, the surrender of tenancy can be implied from the attending circumstances. In the present case, there is ample material on record to show that after the death of his father, the applicant never resided in the demised premises. He never paid the rent thereof. He did not ever remain in possession thereof, He never contested the right of his brother to be the sole tenant. His conduct leaves no manner of doubt that he had no intention to continue with the tenancy. He impliedly surrendered his tenancy and therefore, his brother became the sole tenant of the premises in question."
17. Learned Single Judge of Delhi High Court in Tahira Begum vs. Sumitar Kaur and another, 2011 (1) RCR 49 has held that it is settled law that one heir of the tenant is capable of representing the entire estate unless shown to be in collusion with the landlord.
Learned Single Judge has held as under:
"[26] Though the application for leave to defend appears to have been contested before the Additional Rent Controller merely on the aspect of ownership but the counsel for the respondents before this Court also urged that there are other heirs also of Sardar Nihal Singh against whom no petition for eviction has been filed. However, the other heirs are the married daughters of Sardar Nihal singh who are residing in their matrimonial home and not permanently residing in the tenancy premises. It is not the case that the respondents are ::: Downloaded on - 15/04/2017 18:21:18 :::HCHP 22 not capable of representing the interest even if any of the other heirs. It is settled law that one heir of the tenant is capable of representing the entire estate unless shown to be in .
collusion with the landlord. See Surayya Begum Vs. Mohd.
Usman, 1991 3 SCC 114. That is not the position here. The respondents have contested the case before the Additional Rent Controller and before this Court tooth and nail. Thus, the said ground cannot constitute a ground for grant of leave to defend."
18. Learned Single Judge of Uttarakhan High Court in Shiv Kumar and others vs. Shareef Ahmed and others, 2011 (2) RCR 426 has held that decree passed against joint tenant would bind heirs of deceased tenant though they were not impleaded as party to the petition, and therefore, rejection of application for impleadment by one of heirs of deceased tenant when one heir was already on record was proper. Learned Single Judge has held as under:
"[13] From the aforesaid propositions of law, it can safely be inferred that the decree passed against joint tenant, would bind other heirs of the deceased tenant, though they were not impleaded 4 in the suit. The learned Prescribed Authority has observed in the impugned order that since the property involved is a non-residential building, hence heirs of tenant Ram Kishan, father of Arun Kumar shall be the tenants and it is also on record that one of the heir of Ram Kishan is already on record. The impleadment application was ultimately rejected.
[14] In view of above discussion, I am of the view that the application for impleadment moved by the petitioners has ::: Downloaded on - 15/04/2017 18:21:18 :::HCHP 23 been rightly rejected by the Prescribed Authority. The impugned order does not suffer from any perversity or manifest error of law. The writ petition being devoid of merit .
is liable to the dismissed outright."
19. Present application has been filed very belatedly and the same has unnecessarily delayed the decision of the main rent petition. There is neither any illegality nor any perversity in the order passed by the Rent Controller.
20. Accordingly, there is no merit in the petition and the same is dismissed. The Registry is directed to transmit the record forthwith to the learned Rent Controller, Shimla. The parties, through their counsel, are directed to appear before the Rent Controller, Shimla on 18.6.2015. Learned Rent Controller is directed to decide the Rent Petition within a period of three weeks.
Pending application, if any, also stands disposed of. No costs.
(Justice Rajiv Sharma), Judge.
5.6.2015 *awasthi* ::: Downloaded on - 15/04/2017 18:21:18 :::HCHP