Rahul Sachdeva and Another vs Kishore Kumar Sharma and Others

Shiv Narayan Dhingra, J.—By this petition under Article 227 of the Constitution of India, the petitioner has assailed the order dated 13th March 2008 passed by learned trial court whereby the application of the petitioners under Order 1 Rule 10 read with Section 151 of the CPC for their impleadment as respondent, has been dismissed by learned trial court.

The petitioners who are son and daughters of Late Shri I.R. Sachdeva filed an application under Order 1 Rule 10 to be impleaded as a party in the eviction petition filed by the landlords on the ground available u/s 14(1)(b) and 14(1)(j) of Delhi Rent Control Act against the petitioners'' mother Smt. Raj Sachdeva and proprietary firm M/s Perfect Pipe Industries and one Mr. Narender Kumar Wadhwa who was stated to be sub tenant.

An eviction petition was earlier filed by the landlord being E 215 of 1999 which was contested by the then tenant i.e husband of Smt. Raj Sachdeva and also by Mr. Narender Wadhwa. That petition was settled by compromise before the learned ARC and statements of parties were recorded on 11th December 2002 and Mr. I.R. Sachdeva was admitted as a tenant by the landlord on a monthly rental of Rs.2750/-. Mr. I.R. Sachdeva died on 12th December 2005 and his widow Smt. Raj Sachdeva became proprietor of M/s Perfect Pipe Industries and she also started tendering the rent of the premises. By way of instant petition, filed on the ground of subletting, the petitioners claimed that the tenanted premises, a room of tin shed with a portion of open space on first floor of building number 24, Nazafgarh Road, was sublet by Smt. Raj Sachdeva to respondent No. 3 and respondent No. 3 alone was using the premises as illegal sub tenant/unlawful occupant.

This eviction petition was being contested by Smt.Raj Wadhwa since 2006 when the present petitioners made an application in January 2008 for being impleaded as a party. The petitioners submission before trial court was that Late Shri I.R. Sachdeva died intestate and left behind his widow Smt. Raj Sachdeva, two sons Prem and Rahul Sachdeva and one daughter Smt. Ruchi Sansi as her legal heirs. The tenancy was a commercial tenancy, therefore, all legal heirs of the deceased inherited the tenancy. The eviction petition was filed by the landlord in connivance with their mother Smt. Raj Sachdeva without impleading them as other legal heirs. That the relationship of the petitioners with Smt. Raj Sachdeva were not cordial and, therefore, the petitioner No. 1 had been living separate from Smt. Raj Sachdeva for last 8 months. It is also submitted that when summons for the eviction petition were received by Smt. Raj Sachdeva, she had assured the applicants that she would look after their interests but she became indifferent. During Diwali festival of 2007, when the applicant No. 1 i.e. the petitioner herein visited the house of Smt. Raj Sachdeva, he was able to lay hands on a copy of the summons of the present petition. He engaged a counsel and inspected the court record and apprehending that the respondent No. 2 was in collusion with the petitioner, he filed an application for being impleaded as one of the respondents.

It is to be noted that a similar application for impleadment of other legal heirs of Late Shri I.R. Sachdeva was filed by Smt. Raj Sachdeva on 3rd July 2006 and this application was dismissed by learned ARC vide order dated 17th February 2007. The landlord took a plea of res judicata and also took the plea that the applicants/petitioners were neither using the premises in dispute nor they were in possession and they never claimed tenancy rights after death of Late Shri I.R. Sachdeva. The learned trial court observed that even if it is considered that the applicant was one of the legal heirs of Late Shri I.R. Sachdeva, all legal heirs after death of Late Shri I.R. Sachdeva were not co- tenants but they became joint tenants. There was no collusion between the petitioners and respondent No. 2 since respondent No. 2 herself had made application earlier for impleadment of the petitioners as parties to the petition. The order of dismissing that application was not challenged by the respondent No. 2 or others. The plea of collusion between landlord and Smt. Raj Sachdeva was false in view of the plea taken by the applicant that the respondent No. 2 was contesting the petition on their behalf and had assured to look after their interests and the petitioners/applicants were visiting respondent No. 2, their mother. The application was dismissed being without merits.

No doubt on death of a tenant, the legal heirs inherit the tenancy rights. However, they inherit the tenancy rights only as joint tenants and not as a co-tenants. In joint tenancy, two or more tenants take identical interest simultaneously with the other tenants. A joint tenancy differs from the tenancy in common. It is not the claim of the petitioner that he was a tenant in his own right. He claimed tenancy after demise of his father as a legal heir. It is settled law that after death of the original tenant, the tenancy rights devolve upon the legal heirs of the deceased tenant as joint tenants. The incidence of tenancy are the same as those enjoyed by the original tenant and if one of the legal heir is not made as a party, the other legal heirs who are joint tenants represent the tenancy. This Court in 1990(3) Dl 163 Mohd. Usman v. Surayya Begum has observed as under:

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 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 Kanji Manji Vs. The Trustees of The Port of Bombay, Supreme Court has observed that where the tenancy was a joint tenancy, a notice to one of the joint tenants was sufficient to terminate the tenancy and the suit filed against one of the joint tenants was, for the same reason also good. Thus, the notice and the frame of the suit were proper.

The plea of the petitioner that petitioners were co-tenant is not tenable. Under Delhi Rent Control Act, in case of joint tenancy, there is a unity of possession and anyone of the joint tenants has a right to possess the property. The rights under joint tenancy can be given up by one or the other joint tenant in favour of other joint tenant directly or indirectly and when possession of the tenanted premises is left to one of the joint tenants, the court can easily presume that the other joint tenants have forsaken their rights in favour of the one who is in occupation.

I find no force in this petition. The petition is hereby dismissed. No orders as to costs.