Allahabad High Court
Purshottam Das Mahrolia vs Sanjay Kanchan And 3 Others on 3 March, 2020
Equivalent citations: AIRONLINE 2020 ALL 267
Author: Saral Srivastava
Bench: Saral Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved on 17.02.2020
Delivered on 03.03.2020
Case :- WRIT - A No. - 2015 of 2020
Petitioner :- Purshottam Das Mahrolia
Respondent :- Sanjay Kanchan And 3 Others
Counsel for Petitioner :- Ramendra Asthana
Counsel for Respondent :- Rama Goel Bansal
Hon'ble Saral Srivastava,J.
1. Heard Sri Ramendra Asthana, learned counsel for the petitioner and Smt. Rama Goel Bansal, learned counsel for respondents.
2. The petitioner has preferred the present petition challenging the order dated 21.12.2019 passed by Prescribed Authority/Judge Small Causes Court, Jhansi whereby application 47Ka of the petitioner praying for his impleadment in P.A. Case No.2 of 2018 has been rejected.
3. The brief facts of the case are that respondent no.1, Sanjay Kanchan, preferred release application, which was registered as P.A. Case No.2 of 2018 (Sanjay Kanchan Vs. Piyush Sengar), under Section 21(1)(a) of the U.P. Act No.13 of 1972 for release of three houses described in the plaint. The respondent no.4 Smt. Bhagwati Devi is the tenant of house no.193, 193/1, 193/2, new number 439 and the present number 635 (hereinafter referred to as ''suit property') situated at Civil Lines, Jhansi. According to the averments made in the release application, the suit property was allotted to respondent no.4 by the Rent Control and Eviction Officer, Jhansi in the year 1974-75 and she had been living in the suit property as tenant. The need set up by the landlord is that respondent no.1, who is an Advocate, needs space for the chamber near the district court. It is also stated that family of respondent no.1 requires the suit property as they are facing a lot of inconvenience at the present place of their residence.
4. In the aforesaid case, petitioner filed an application 47Ka under Order 1 Rule 10 read with Section 151 of C.P.C. contending inter alia that respondent no.4 was the tenant of the suit property. Respondent no.4 got constructed a house in the year 1985 at Madrasi Colony, Narayan Bagh, Jhansi and has shifted to her new house in 1985. The petitioner is younger brother of husband of respondent no.4 and has been living in the suit property since 1990 with family which fact was well within the knowledge of Late Kunj Bihari Lal Kanchan and respondent no.1. Along with the said application petitioner also filed several documents indicating that he has been living in the suit property. On the basis of aforesaid pleading, the petitioner claimed that he is necessary and proper party in the release application as his interest is directly involved and his presence is also necessary for effective and proper adjudication of the dispute.
5. The aforesaid application was contested by respondent no.1 by filing objection contending inter alia that facts stated in the application under Order 1 Rule 10 of C.P.C. are incorrect. It was stated that respondent no.4 was tenant of the suit property and rent receipts were issued to respondent no.4 by the father of respondent no.1, and after the death of his father, he became the landlord of the suit property. It is also denied that petitioner is tenant of the suit property at the rate of Rs.100/- per month and he was paying rent to the father of respondent no.1 and after his death to the respondent no.1. The respondent no.1 further pleaded that the petitioner is neither a necessary nor property party and accordingly, prayed for rejection of application 47Ka.
6. The Judge Small Causes Court by order dated 21.12.2019 rejected the aforesaid application. The trial court held that paper no.48Ga/5 filed alongwith application 47Ka shows that respondent no.4 is the tenant of the suit property and petitioner has not disclosed as to how he acquired the tenancy of the suit property. The trial court further held that petitioner failed to prove that who is his landlord and who has let the suit property to him.
7. Challenging the aforesaid order, learned counsel for the petitioner has contended that petitioner is living in suit property since 1990 and has been paying rent to the father of respondent no.1 and after his death to respondent no.1. Thus, the fact that petitioner has been living as tenant in the suit property was well within the knowledge of the father of the respondent no.1 and also to respondent no.1, and as the petitioner was paying rent of the suit property to the father of respondent no.1 and after his death to the respondent no.1, therefore, there is relationship of landlord and tenant between petitioner and respondent no1. Hence, petitioner being a necessary and proper party should be impleaded as party in the suit. Thus, he submits that trial court has committed material irregularity in rejecting the application 47Ka.
8. Per contra, Smt. Rama Goel Bansal, learned counsel for the respondents would contend that it is admitted between the parties that suit property was allotted to respondent no.4 by the Rent Control and Eviction Officer who was the tenant of the suit property since the date of allotment, therefore, the petitioner cannot be said to be a tenant of the suit property. She further submits that respondent no.1 has denied the fact that petitioner is tenant of the suit property. She further submits that even if, without admitting, it is assumed that petitioner is in possession of the suit property, his status cannot be more than that of a sub-lessee and it is settled in law that sub-lessee is neither a necessary nor a proper party in a suit for eviction. In support of her contention, she has relied upon the judgement of Apex Court in the case of Rupchand Gupta Vs. Raghuvanshi (Private) Ltd. and Another AIR 1964 SC 1889.
9. I have considered the rival submissions of the parties and perused the record.
10. It is admitted between the parties that suit property was allotted to respondent no.4 by Rent Control and Eviction Officer who was the tenant of the suit property since the date of allotment to her. The petitioner claims to have obtained possession of the suit property from respondent no.4 as she had constructed her own house in the year 1985 and has been living in her new house since 1990. The trial court on the basis of material on record found that there was no relationship of landlord and tenant between petitioner and respondent no.1. The trial court held that sub-lessee is neither a necessary nor property party and accordingly, rejected the application 47Ka of the petitioner.
11. A perusal of application 47Ka of the petitioner reveals that the petitioner was never allotted the suit property, and that he came in possession of the suit property after respondent no.4 had shifted to her own house. Thus, it is also evident from the own case of the petitioner that he was never allotted the suit property as per the procedure prescribed in U.P. Act No.13 of 1972 for allotment of a house to which U.P. Act No.13 of 1972 is applicable. It is manifest from the aforesaid fact that petitioner has not acquired the tenancy right over the suit property as per the law.
12. It is settled in law that sub-lessee/subtenant is neither a necessary nor a proper party in a suit for eviction. In this regard, it would be apt to refer paragraph 12 of the judgement of Apex Court in the case of Rupchand Gupta (supra) which is being extracted hereinbelow:-
"12. Taking the last action first, viz., Raghuvanshi's omission to implead the appellant, it is quite clear that the law does not require that the sub-lessee need be made a party. It has been rightly pointed out by the High Court that in all cases possession of the laid on the basis of a valid notice to quit served on the lessee and does not implead the sub-lessee as a party to the suit, the object, of the landlord is to eject the sub-lessee from the land in execution of the decree and such an object is quite legitimate. The decree in such a suit would bind the sub- lessee. This may act harshly on the sub-lessee; but this is a position well understood by him when he took the sub-leases. The law allows this and so the omission cannot be said to be an improper act."
13. Thus, as the petitioner is not a tenant of the suit property and his status can at the best be of sub-lessee/subtenant, therefore, this Court does not find any error committed by the trial court in rejecting the application 47Ka of the petitioner.
14. Thus, for the reasons given above, the writ petition lacks merit and is accordingly, dismissed.
Order Date :- 03.03.2020 Sattyarth