Hukum Singh vs The Prescribed Authority and Others

M.N. Shukla, J.—This writ petition arises out of proceedings under the U.P. Urban Buildings (Regulations of Letting, Rent and Eviction) Act, 1972 (U.P. Act XIII of 1972)(herein-after referred to as the Act) which were instituted in respect of shop No. 4, Meerut Road, Muzaffarnagar. The Petitioner alleged that he and Respondent No. 3, Janam Singh were joint tenants of the shop, carrying on their business therein under the name and style of M/s. Bharat Ball Bearing and Begi Repairing Works since 1960, that the present landlady, namely, Smt. Shila Rani (Respondent No. 2) purchased the same shop in 1966 and since then she began to receive rent from both the tenants mentioned above and the rent was being paid from the joint fund of the partnership. Subsequently Respondent No. 3, Janam Singh colluded with the landlady, Respondent No. 2 and she filed an application u/s 21 of the Act against Respondent No. 3. Her application u/s 21 of the Act was allowed by the 3rd Additional District Judge against Respondent No. 3 by his order dated 7-8-1975 and the shop was released in favour of the landlady. Consequently, the Petitioner was constrained to file suit No. 890 of 1975 in the Court of Munsif, Muzaffarnagar for injunction against the Respondents on the ground that he was a cotenant in the accommodation in dispute and any order passed against him u/s 21 of the U.P. Act No. XIII of 1972 was not binding on him as he was not a party to those proceedings and the landlady should be restrained from taking possession of the shop in dispute from the Plaintiff. The learned Munsif granted an ex-parte ad-interim injunction to the Plaintiff against which the landlady preferred an appeal which was allowed on 25-8-19/6 by the Additional Civil Judge, Muzaffarnagar and the injunction order was set aside and the learned Munsif was directed to hear and decide the injunction application afresh on merits. The Petitioner filed a civil revision in the High Court which was later dismissed.

Thereafter commenced the crucial chain of events which led to the passing of the impugned order. The landlady filed an application for delivery of possession to her against the Respondent No. 3 u/s 23 of the Act. The Petitioner filed objections and the Respondent No. 3 filed his reply. The Prescribed Authority, however, dismissed the objections of the Petitioner and allowed the application u/s 23 of the Act by a detailed order dated 20-8-1979 which is impugned in this writ petition.

The Respondent No. 2 contested the petition on the ground that the Petitioner was never the tenant of the shop in dispute, the tenancy vested exclusively in the Respondent No. 3, who alone paid the rent, that the Petitioner was the brother-in-law of the Respondent No. 3 and they were in collusion with each other and were interested in delaying the ejectment of the Respondent No. 3 from the shop in dispute, that the Petitioner was neither the tenant of the shop in dispute nor was he in possession thereof and hence he was not entitled to resist Respondent No. 3 in her taking possession of the shop.

We have given our anxious thoughts to the submissions made on behalf of the Petitioner but we are not impressed by the same. The main contention of the Petitioner was that he was not a party to the proceedings instituted u/s 21 of the Act and hence the order dated 20-8-1979 passed u/s 23 of the Act for the implementation of the formal order dated 7-8-1975 was manifestly illegal. We have already mentioned that the Petitioner filed objections in the proceedings u/s 23 of the Act which were duly considered by the Prescribed Authority in its order and were rejected on merits. A bare look at Section 23 of the Act would reveal that it can be pressed into service not only "for evicting any tenant against whom an order is made u/s 21" but also ''''against any other person in actual occupation and for putting the landlord into possession" (emphasis added). The ratio of Chakki Lal v. III Addl. District Judge, Mainpuri 1977 UPRCO 39 decided by this Court supports the view which we are taking. It was observed therein:

In my opinion, in proceedings u/s 23 for enforcement of an eviction order if any person other than the person against whom an order of eviction has been passed, claims to be in possession, the nature of his possession would have to be enquired into. If it is shown by such person that he is occupying the accommodation in his own right for instance as a tenant, he cannot be evicted by enforcing an order to which he was not a party. On the other hand, if his possession is only on behalf of the tenant against whom the order for eviction has been passed for instance as a subtenant within the meaning of Section 25(1) of the Act or as a licensee, such person can be evicted u/s 23 while enforcing the eviction order passed against the tenant.

In an earlier decision also it was held that as soon as an order u/s 21 was passed, the tenant as also all other persons living with him or on his behalf could be ordered to be evicted in proceedings u/s 23 which were in the nature of execution proceedings and it was not necessary that proceedings u/s 21 should be taken ''de novo''. See Keshav Dutt Dwivedi v. Prescribed Authority, Lucknow 1975 ALJ 75.

Secondly, even factually the Petitioner''s version appears to be totally false and was rightly disbelieved by the Prescribed Authority as well as the civil court in all the proceedings taken so far. It is extremely significant that in the proceedings u/s 21 of the Act Janam Singh (Respondent No. 3), who has been held to be a tenant of the shop, never raised the plea that the Petitioner, who was his own brother-in-law, was also a tenant along with him or a partner in his business,. This clearly shows that the case now set up by the Petitioner is an after-thought and the result of a collusion between him and the Respondent No. 3 to delay and defeat the landlady''s application for delivery of possession.

Thirdly, the order of the learned Additional Civil Judge, Muzaffarnagar date 25-8-1976 allowing the landlady''s appeal and discharging the injunction was ''inter-parties''. It is a very well-reasoned order in which the learned Judge had expressed his considered opinion that the Petitioner had no prima facie case. It records a finding that the Petitioner had never remitted rent to the Respondent No. 2, that the rent had been exclusively paid by the tenant, namely, Janam Singh (Respondent No. 3) and that the Petitioner had tried to deceive the court by making interpolations in the moneyorder coupons and adding his own name in different ink. Even though the case may not come within the purview of Section 11 of the Civil Procedure Code, yet the doctrine of res judicata had been very broadly applied and its general principles have been extended even to miscellaneous proceedings and orders passed at different stages of the same litigation or even when one proceeding was a suit and the other was not a suit. See Satyadhyan Ghosal and Others Vs. Sm. Deorajin Debi and Another, , Arjun Singh Vs. Mohindra Kumar and Others, and Gulabchand Chhotalal Parikh Vs. State of Bombay (Now Gujarat), . In our opinion the observations made by the learned 3rd Additional Civil Judge are entitled to much weight and prima lacie they preclude the Petitioner from claiming joint tenancy of the shop in dispute along with Respondent No. 3. If it be so, it follows that Janam Singh, Respondent No. 3 was the sole tenant of the shop and the Petitioner Hukum Singh was not a joint tenant with him and consequently he was liable to eviction by virtue of the order passed u/s 23 of the Act,

Lastly, even if it be assumed that the Petitioner was a joint tenant of the shop in dispute with Respondent No. 3 we are inclined to hold that the order of release dated 7-8-1975 passed u/s 21 of the Act against Respondent No. 3 was binding on the Petitioner as well. The Petitioner''s specific case was that he and Respondent No. 3 were joint tenants. In case of joint tenancy even if one of the joint tenants is impleaded in the proceedings for release of the accommodation in dispute, he sufficiently represents the rights and interest of the remaining joint tenants and the order passed against the impleaded tenant is equally binding on others not so impleaded. The point is concluded by the dictum of the Supreme Court in Kanji Mant v. Trustees, Port of Bombay AIR 1963 SG 468 : ''in case of joint tenancy a notice to determine lease to one of the joint tenants is sufficient and hence the suit for ejectment against one of the tenants is also good.'' That is the distinction between ''joint tenants'' and ''tenants in common'' which was emphasised by H.N. Seth, J. in Smt. Shafiqa v. Maqsood Ahmad Kan 1970 AWR 100 in the following words:

It is obvious, that the principle on which, notice given to one of the joint tenants may be considered to be notice to the entire body of joint tenants, cannot apply to a case of co-tenants. Co-tenants have no unity of title. Each one of the co-tenants is the owner of specific interest in the property and, therefore, notice given to one of them cannot have the effect of determining the interest of other interest holder.

The above passage was quoted with approval in Budh Sen Vs. Sheel Chandra Agarwal and Others, where a Division Bench of this Court succinctly brought out the distinction between ''joint tenants'' and ''tenants in common'' and observed:

The basic distinction thus between ''joint tenant'' and ''tenant in common'' is that in the case of joint tenant there is unity of title and possession while in the case of tenants in common though there is unity of possession there is no unity of title. The view, therefore, appears to be reasonsable that while a notice served u/s 106 of the T.P. Act only on one of the joint tenants is effective to terminate the tenancy of all the joint tenants who have unity of title, no such result follows where a notice is served only on one of tenants in common since there is no unity of title as between them in contrdiction to the joint tenants.

The learned Counsel for the Petitioner referred to two rulings which are clearly distinguishable on facts. The case of Smt. Shafiqa (supra), dealt with the case of ''tenants-in-common'' and not ''joint tenants'' and the dictum enunciated in that case, which we have already quoted earlier, does not support the Petitioner''s contention in so far as it relates to cases of joint tenancy. The second authority relied upon bythe Petitioner in Ramesh Chand Bose Vs. Gopeshwar Pd. Sharma, was also a case of ''tenants in common'' and not ''joint tenants''. There the tenancy had been inherited by the heirs of the original tenants and so it was held that the heirs were tenants in common and not joint tenants. In the instant case according to the Petitioner''s own pleadings he and the Respondent No. 3 were joint tenants and it is a corollary from this that there was unity of title and possession between them and an order of release or ejectment passed against one would be effective against the other also and he would be liable to eviction. Thus, the legal proposition urged on behalf of the Petitioner, even if facts be assumed as stated is devoid of substance. The impugned order, therefore, does not suffer from any manifest error of law.

There is no force in this writ petition and the same is dismissed with costs. The interim order dated 23rd August, 1979, is hereby discharged.