Allahabad High Court
Shyam Babu Gupta vs Om Prakash Shukla on 7 February, 2019
Equivalent citations: AIR 2020 (NOC) 87 (ALL), AIRONLINE 2019 ALL 411, 2019 (3) ALJ 448, (2019) 133 ALL LR 678, (2019) 1 ALL RENTCAS 910, (2019) 1 RENCR 615, (2019) 2 ALL WC 1565, 2019 (4) ADJ 24 NOC
Author: Manoj Kumar Gupta
Bench: Manoj Kumar Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD ?A.F.R. Court No. - 19 Case :- MATTERS UNDER ARTICLE 227 No. - 803 of 2019 Petitioner :- Shyam Babu Gupta Respondent :- Om Prakash Shukla Counsel for Petitioner :- Manish Tandon Counsel for Respondent :- R.K. Mishra Hon'ble Manoj Kumar Gupta,J.
Heard counsel for the parties.
Supplementary affidavit filed today is taken on record.
The instant petition is directed against the order dated 28.8.2014 passed by Prescribed Authority in Rent Case No. 11/2011 and the judgment and order dated 3.11.2018 passed by Additional District Judge, Court No. 11, Kanpur Nagar in Rent Appeal No. 112/2014.
Brief facts for deciding the instant matter are as under : -
The respondent filed a release application under Section 21(1)(a) of U.P. Act No. 13 of 1972 (hereinafter referred to as 'the Act'). It was registered as P.A. Case No. 11/2011. The release application was in respect of a godown in the tenancy of the petitioner. It was alleged that the godown measures 40' X 20', out of which an area measuring 8' X 10' was released in favour of the respondent in earlier proceedings under Section 21, therefore, the release was sought only in respect of the remaining part. The need set-up in the release application was for opening of a chamber by his son Krishna Kumar Shukla, who is an Advocate and also for setting up another son Sharad Kumar Shukla in business. It was alleged in the release application that the petitioner-tenant has sufficient alternative accommodation in his possession, therefore, he would not suffer any hardship in case of eviction.
The release application was contested by the petitioner inter alia on the ground that the alleged need is not bona fide; that the original tenant was his father late Nathi Lal Gupta and after his death, apart from the widow, his other brothers and sisters had also inherited the tenancy rights, but who were not impleaeded; that 4/5th share was purchased by Surendra Kumar Jaiswal and Smt. Malti Devi, but who have not been impleaded. The release application filed without impleading all heirs of the deceased tenant was not maintainable.
The Prescribed Authority allowed the release application and the Appellate Court has affirmed the findings recorded by the Prescribed Authority, while dismissing the appeal filed by the petitioner-tenant.
Learned counsel for the petitioner submitted that after the death of original tenant late Nathi Lal Gupta, the respondent substituted all his heirs including the widow and other brothers and sisters of the petitioner in SCC Suit No. 212/1986. He further points out that against the decree of eviction and arrears of rent passed in those proceedings, the brother of the petitioner viz. Manohar Ram filed a petition before this Court, in which a conditional stay order was granted in this favour, which is still in operation. In these circumstances, it is submitted that the release application filed only against the petitioner was not maintainable. He has placed reliance on the definition of tenant given in Section 3(a) of the Act. He further submitted that the other co-owners, who have purchased undivided shares in the property filed an impleadment application in appeal, but which was dismissed by the Appellate Court. According to him, they were also necessary parties. He also submitted that the operative part of the release order is confusing and it should be clarified that the area measuring 8' X 10' is not subject matter of release in the instant proceedings, as according to him, the release order passed in earlier proceedings was not executed so far.
On the other hand, learned counsel for respondent submitted that after the death of the original tenant Nathi Lal Gupta, all his heirs inherited the tenancy as joint-tenants.The petitioner, who was one of the joint-tenants sufficiently represented the estate of the deceased original tenant. He further submitted that only an undivided share in the entire house, of which the disputed godown is a part, was sold to certain persons, but since there was no partition by metes and bounds, therefore, the respondent was entitled to maintain the release application in his own right. He also submitted that he has no objection in case, it is clarified that the release order passed in the instant proceedings does not relate to an area measuring 8' X 10', which was subject matter of earlier proceedings.
It is now well-settled that after death of original tenant, his heirs succeed to the tenancy as joint-tenants and not as co-tenants. In this connection, the Supreme Court in H.C. Pandey Versus G.C. Paul, 1989 (2) ARC 26, held as under : -
"It is 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 th 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 other words, the heirs succeed to the tenancy as joint tenants."
A two Judge Bench of the Supreme Court in Mohd Azeem Versus District Judge, Aligarh and others, 1985 (2) ARC 85, however, took a contrary view. The conflict was resolved by a Three Judge Bench of the Supreme Court in Harish Tandon Versus ADJ, Allahabad, 1995 SCC (1) 537. It is held that after death of original tenant, the incidence of tenancy remains the same as those enjoyed by the original tenant. There is no division of rent, nor of the premises. It is a single tenancy which devolves on his heirs. They succeed as joint-tenants and not co-tenants : -
"According to us, it is difficult to hold that after the death of the 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. This can be examined with reference to Section 20(2) which contains the grounds on which a tenant can be evicted. Clause (a) of Section 20(2) says that if the tenant is in arrears of rent for not less than four months, and has failed to pay the same to the landlord within one month from the date of service upon him of a notice of demand, then that shall be a ground on which the landlord can institute a suit for eviction. Take a case where the original tenant who was paying the rent dies leaving behind four sons. It need not be pointed out that after the death of the original tenant, his heirs must be paying the rent jointly through one of his sons. Now if there is a default as provided in clause (a) of sub-section (2) Section 20 in respect of the payment of rent, each of the sons will take a stand that he has not committed such default and it is only the other sons who have failed to pay the rent. If the concept of heirs becoming independent tenants is to be introduced, there should be a provision under the Act to the effect that each of the heirs shall pay the proportionate rent and in default thereto such heir or heirs alone shall be liable to be evicted. There is no scope for such division of liability to pay the rent which was being paid by the original tenant, among the heirs as against the landlord what the heirs do interse, is their concern."
Following the above principle of law, this Court in Om Prakash Versus Jaswant Singh and others, 1999 (2) ARC 709, held that release application filed against one of the joint-tenants is perfectly maintainable. The same view has been taken by this Court in 1996 (1) ARC 525 - Shamshe Alam Versus District Judge, Gorakhpur and others.
Concededly, none of the other joint-tenants came forward to seek their impleadment, although, the petitioner claims that they are also in possession of the godown along with him. Consequently, this Court does not find any merit in the submission that release application was not maintainable on account of non-impleadment of all heirs of the original tenant.
As regards an interim order passed by this Court in favour of the brother of the petitioner, that was admittedly in a matter arising out of an altogether different proceedings. It emanated from a suit for recovery of arrears of rent and for eviction. The suit was dismissed by the trial Court, but the Revisional Court decreed the suit. This Court in the petition filed by brother of the petitioner, challenging the eviction order, passed an interim order, on the ground that once the trial Court had dismissed the suit, the Revisional Court should not have interfered with the findings recorded by the trial Court. These proceedings, in the considered opinion of the Court, will have no effect on the present proceedings, which arises out of application under Section 21(1)(a) of the Act, based on bona fide need of the landlord.
Coming to the second submission, it is noteworthy that in SCC Suit No. 212/1986, instituted by the respondent-landlord against the original tenant Nathu Lal Gupta, there was no dispute regarding relationship of landlord and tenant between the parties. The petitioner in the instant proceedings denied the relationship of landlord and tenant on account of the fact that other co-sharers of the building, of which the disputed godown is a part, had sold their undivided 4/5th share in favour of Surendra Kumar jaiswal and Smt. Malti Devi by two different sale deeds. A sale of undivided share of the building, of which tenanted premises is a part, did not result in snapping of the relationship of the landlord and tenant between the parties. Concededly, till date, there is no division of the building by metes and bounds amongst the co-sharers.
In Gopal Dass Versus Ist ADJ, Varanasi, 1987 (3) ALR 275, a Full Bench of this Court has long back declared Rule 15(2) requiring all landlords to sign the release application to be invalid holding that one co-owner is competent to maintain an action for eviction of the entire tenement in possession of a tenant. Consequently, this Court is unable to accept the submission that release application was incompetent on account of sale of an undivided share in the house, in which the disputed godown is situated.
As regards the third submission in respect whereof there is no objection by the respondent-landlord, it is clarified that the release order in the instant case would not include area of 8 X 10 square feet, which the respondent-landlord claims was subject matter of release in earlier proceedings. It is further clarified that under the garb of execution of the release order passed in the instant proceedings, the respondent-landlord would only be entitled to possession of the part in respect of which prayer has been made in the release application. This duly takes care of the apprehension of the petitioner that he may be evicted from the entire godown in execution of the release order passed in the instant proceedings.
At this stage, counsel for the petitioner prayed for some time being granted to vacate, to which learned counsel for respondent-landlord has no objection.
Accordingly, the petition is dismissed, subject to the clarification made above. The petitioner is granted three months' time to vacate the premises, provided he furnishes an undertaking before the Prescribed Authority, within three weeks from today that he would hand over vacant possession of the premises to the respondent-landlord on or before expiry of the aforesaid period, failing which it would be open to the respondent-landlord to execute the release order.
(Manoj Kumar Gupta, J.) Order Date :- 7.2.2019 AM/-