Indrajeet Gulati vs Civil Judge (Senior Division), Mohanlalganj/Prescribed Authority, Lucknow and Others

Mrs. Poonam Srivastav, J.—Heard Sri Surya Kant, learned counsel for the petitioner and Sri U.C. Saxena, Advocate for the contesting respondents.

The impugned judgment and order in the instant writ petition is dated 22.9.2006 passed by the Prescribed Authority in a proceeding under Section 21(1)(a) of U.P. Act No.13 of 1972 (hereinafter referred to as the ''Act'') deciding the preliminary objection raised on behalf of the tenant on an application B90. The tenantpetitioner preferred previous writ petition No.114 (R/C) of 2005 Smt. Indrajeet Gulati v. Civil Judge (Senior Division) and Others claiming themselves to be the legal heirs of late Madan Lal Gulati and the consequent tenancy right after death of her husband and therefore, they are necessary party for proper adjudication of the proceeding initiated under Section 21 of the Act. The writ petition was allowed when it was moved as a fresh case since the counsel for the respondents had also appeared and both the parties were represented and agreed that the writ petition be heard finally. The order dated 1.8.2005 passed in previous writ petition is also on record. It appears that the Prescribed Authority rejected the impleadment application filed at the instance of the petitioner on 20.7.2005, which was challenged in previous writ petition. This Court while disposing of the writ petition, directed that the notices shall be served on the opposite parties/legal heirs except the petitioner who had moved impleadment application and also directed the Prescribed Authority for expeditious disposal, preferably within a period of three months from the date, a certified copy of the order is produced before him. After redressal of the grievance to the effect that the heirs of late Madan Lal Gulati were impleaded, notices were given thereafter an application B90 was moved objecting the maintainability of the release application. The prayer for deciding the question of maintainability as preliminary issue was accepted by the Prescribed Authority and decided by means of the impugned order.

The tenantpetitioner claimed that the landlord was M/s Dittumal Govind Ram & Sons was the landlord of Shop No.54 Goel Market, Gautam Budh Marg, Lucknow. Madan Lal Gulati died on 30.11.2004 and thereafter his heirs inherited the tenancy. The respondent No.2 Narendra Pal Singh, who had instituted the release application, was never landlord and there was no contract of tenancy between the respondent No.2 and erstwhile tenant Madan Lal Gulati. Objection was filed by the respondent No.2 to the aforesaid application stating therein that Karam Chand Agarwal was the Karta of HUF and was owner of the constructed shop, which was in tenancy of the petitioner. The old constructions were demolished in the year 1979 and thereafter new construction came in existence. The old constructions were purchased by the ancestors of Karam Chand Agarwal in two part, one by means of registered sale deed dated 27.10.1949 and remaining part was purchased by means of another registered sale deed dated 28.11.1955. Certified copies of two sale deed were brought on record. Sri Rai Sahab Karam Chand Agarwal constructed a shop as Karta of HUF. He had four sons, Dharam Pal K. Agarawal was the eldest, who was the Karta and M/s. Dittumal Govind Ram was the firm of late Karam Chand Agarwal and therefore, any objection on the part of the tenant is unsustainable. Subhash Chandra was the power of attorney holder of firm Dittumal Govind Ram, who had executed a registered sale deed in favoru of the landlordrespondent on 12.9.2000. The respondent No.2 himself is the landlord, which has been admitted by the tenant Vijay Gulati. The sale deed dated 12.9.2000 has been brought on record as Paper No.C63 and the Court below has recorded a finding that perusal of the said sale deed, it transpired that Dharam Pal K. Agarwal, son of late Rai Sahab Karam Chand Agarwal had appointed Subhash Chandra Agarwal as attorney in the capacity of Karta of HUF and the said sale deed was executed. Written statement was also perused by the Court below where unequivocal statement was given that the applicant is landlord and the opposite parties are the tenant and it is also admitted that the shop in question was purchased in the month of September, 2000. The written statement, Paper No.B25 was also brought on record. However, the finding of the Prescribed Authority accepting the respondent No.2 as landlord is a question, which is a finding of fact. The Court below has placed reliance on the principle laid down by the Apex Court in the case of Harish Tandon v. A.D.M., Allahabad and Others, ARC 1995 (1) 220: 1995 (13) LCD 898 (SC), where it is ruled that after the death of the original tenant, his heirs will be deemed to be holding the premises as joint tenants. For any breach committed by any of such joint tenants, all the heirs of the original tenant have to suffer. The heirs of original tenant are cotenants or joint tenants and the tenancy can not be divided. In H.C. Pandey v. G.C. Paul, AIR 1989 SC 1470: 1989 (7) LCD 292 (SC), the Apex Court ruled, 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 therefore. 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.

Besides, the Court below has come to a conclusion that the sale deed, which is registered sale deed, was documentary evidence and that can not be overlooked unless and until the said evidence is negated by another documentary evidence, mere denial is not sufficient.

Learned counsel for the petitioner has submitted that the opposite party Nos.2 and 3 have colluded with each other and therefore, since the respondent No.2 has never claimed that he has purchased the property from the Firm Dittumal Govind Ram & Sons therefore, the sale deed executed through power of attorney has no evidentiary value and the findings to the contrary are liable to be quashed. The claim of the opposite party that Karam Chand Agarwal was Karta of HUF, is a farfetched contention and the Courts below are absolutely wrong while accepting the said contention. Learned counsel has placed reliance on a Division Bench decision of this Court in the case of Ram Nath Mishra v. Prescribed Authority and Others, 1984 (2) ARC 227.

I have perused the said decision. The question decided by the Division Bench was, in the event one person claiming to be landlord and denying the claim of other person that he is landlord, in such a case the Prescribed Authority is duty bound to decide the question as to who is the landlord and therefore, the Prescribed Authority has no jurisdiction to release the accommodation in favour of a person who is not the landlord.

In the instant case, there is no dispute between the landlord interse. the dispute is between some of the joint tenants who disputed that the respondent No.2 is not the landlord whereas one of them has admitted unequivocally that the respondent No.2 is the landlord, therefore, it is the tenants who have different claims and the proceedings are being stalled on one or the other pretext. The dispute between the two joint tenants can not be a ground to stall proceedings initiated by the landlord and therefore, after taking into consideration the ratio decided in the case of Ram Nath Mishra (supra), there is no illegality while the Prescribed Authority proceeded to determine the release application under Section 21 of the Act. So far the legal duty to determine the status of the person making application under Section 21 of the Act is concerned, that has already been done by means of the impugned judgment. I do not find any illegality whatsoever in the impugned judgment.

In view of what has been stated above, no good ground for interference is made out. The writ petition lacks merit and is accordingly dismissed. It is made clear that this Court while allowing the previous writ petition in the month of August, 2005 had already directed the Prescribed Authority to decide the release application within a period of three months from the date of production of certified copy of the order. Almost three years have passed but the matter is still pending. It is, therefore once again directed that the Prescribed Authority shall ensure that the matter is decided as expeditiously as possible preferably within the stipulated period by this Court on the earlier occasion i.e. within three months. It is made clear that no undue adjournment shall be granted to either parties unless and until compelling circumstances arise to do so.

(Petition dismissed)