Savitri Devi vs IInd Additional Distt.& Sessions Judge Deoria & Ors.

R. H. Zaidi, J.—In theses petitions the subjectmatter of dispute (i.e. shop), the question of law and fact involved and parties are common, therefore, they were connected and were heard together on the request made by the learned counsel for the parties and are being disposed of by this common judgment.

Civil Misc. Writ petition No. 9375 of 1984, arises out of SCC case No. 62 of 1978 which was filed by the petitioner for ejectment of late Shri Ghar Bharan from the shop in dispute, and for recovery of rent on the ground of default and subletting. It was pleaded that Shiri Ghar Bharan was in arrears of rent since October, 1977 and did not pay the same in spite of the notice of demand and termination of tenancy served upon him, within the statutory period of 30 days. He had also sublet the shop to shri Deo Narain and permitted him to occupy the same exclusively. Since the notice given by the petitioner was wrongly replied and the shop in dispute was not vacated by Shri Ghar Bharan, suit was filed for the above mentioned reliefs by her.

The suit was contested by Shri Gar Bharan with the pleas that he had taken the shop in dispute as Karta of Joint Hindu family from Sri Kaushalendra Pratap Singh, the original owner of the shop in dispute in 1966, it was in the year 1974 that there was partition amongst his brothers and the shop in dispute was allotted in the share of Sri Deo Narain who was occupying the same in his own right. There was, therefore, no question of subletting involved in the case.

During pendency of the suit Ghar Bharan died leaving behind his widow and other heirs who were impleaded as defendants on an application filed by the petitioner, Deo Narain was also impleaded as one of the defendants.

A writien statement was also filed by Shri Deo Narain, pleading that the amount of rent was sent by him to the petitioner by moneyorder which was refused by her. It was also pleaded that the shop in dispute was taken by Sri Ghar Bharan in the capacity of Karta of the Joint Hindu Family and not in his individual and personal capacity. Deo Narain claimed that he was occupying the shop in dispute in his own right and the petitioner had no right to file the suit.

Sri Deo Narain also died during pendency of the proceedings and his heirs were substituted in his place.

The trial court framed necessary issues on the basis of the pleadings of the parties in the case. The parties adduced evidence in support of their respective cases. The trial court returned the findings on issue Nos. 1 & 2 in favour of contesting respondents. It was held that Sri Ghar Bharan had taken shop in dispute as Karta of Joint Hindu family. The. shop in dispute was allotted to Sri Deo Narain in the family partition and'' he was in occupation of the same in his own right. It was also held that Sri Deo Narain was the tenant of the shop in dispute and no default in payment of rent was committed by him. The trial court while dealing with issue No. 3 held that Sri Deo Narain had been sitting on the shop in dispute since the time of the original owner Sri Kaushlendra Pratap Singh and his tenancy was regularised under Sec. 14 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 hereinafter referred to as the Act, While dealing with issue No. 4 it was held that the suit was barred by estoppel and was liable to be dismissed as no notice of demand and termination of tenancy was served upon Sri Deo Narain. Having recorded the said findings the trial court dismissed the suit vide its judgment and decree dated 2551981.

Aggrieved by the judgment and decree passed by the trial court a revision was filed by the petitioner before by the court below under Sec. 25 of the Provincial Small Cause Courts Act. The revisional court also affirmed the findings recorded by the trial court and dismissed the revision vide its judgment and order dated 3041984.

Thereafter, the petitioner filed the writ petition No. 9375 of 1984 challenging the validity of the judgment and orders passed by the courts below.

Civil Misc. Writ petition No. 516 of 1987 arises out of proceedings under Sec. 21(1) (a) of the aforesaid Act, and is directed against the order passed by the appellate authority. It appears that the house No. 1254 Malviya Road, Deoria was originally owned by Sri Kaushalendra Pratap Singh. It also consisted a shop on its ground floor. The said house and the shop were purchased by the petitioner on 2131972 for a valuable consideration of Rs. 46.000/. The residential portion of the said house was in occupation of Sri Ram Shanker and Harish while the shop on the ground floor was in possession of Sri Ghar Bharan as a tenant.

After expiry of the statutory period an application for release of the aforesaid house and the shop in dispute in her favour, under Sec. 21(1) (a) of the Act (P.A. Case No. 15 of 1975), was filed by the petitioner, in the year 1975, on the ground of personal need and hardship.

Rama Shanker and Harish Lal have vacated the residential portion in their occupation in favour of the petitioner and the same was released in her favour. The dispute, therefore, remained only with respect to the shop in dispute which was in occupation of Sri Ghar Bharan.

Sri Ghar Bharan contested the release application and has pleaded that the shop in dispute was taken by him in the capacity of Karta of Joint Hindu Family and after partition it was in occupation of Sri Deo Narain in his own right.

Sri Deo Narain also applied for his impleadment as party in the case, pleading that the agreement of tenancy was entered into by his brother Rama Shanker as Karta of Joint Hindu Family and that he happened to be a member of the said family. He, therefore, claimed his share in the tenancy of the said shop. However, the prescribed authority dismissed the impleadment application vide its judgment and order dated 2251976 for the reasons recorded in its order particularly that he being an outsider, not a member of family of Ghar Bharan, had no right to intervene in the proceeding. The order dismissing impleadment application has become final as the writ petition No. 1875 of 1976 filed against the said order was dismissed by this Court. Thereafter the prescribed authority allowed the release aplication filed by the petitioner, recording ndings on the relevant issues, in her favour by its judgment & order dated 2511977.

Aggrieved by the order passed by the Prescribed Authority an appeal was filed before the appellate authority by Ghar Bharan who died during pendency of appeal. The appellate authority allowed the appeal and remanded the case to the Prescribed Authority by its judgment and order dated 3071977, holding that the provisions of the Act had no application to the building in question. Challenging the validity of the said order Civil Misc. Writ Petition No. 2180 of 1977 was filed in this court which was allowed on 781979 and the case was remanded to the appellate authority for decision afresh.

After remand the appeal filed by respondent No. 2 Ram Ashish s/o Ghar Bharanv was allowed by the appellate authority relying upon the decision in the suit and the revision giving rise to the writ petition No. 9375 of 1984 and also holding that Sri Deo Narain was the tenant of the shop in dispute; but was not impleaded as a party in the case and in his absence finding could not be recorded against him. The petitioner, thereafter, filed the writ petition No. 516 of 1987 challenging the validity of the order of the appellate authority dated 17111986.

I have heard Mr. G. N. Verma, learned counsel for the petitioner and Mr. K.M. Dayal, Senior Advocate, who appeared on behalf of the contesting respondents.

Mr. G. N. Verma strenuously urged that the courts below have committed error apparent on the face of the record in holding that theconcept of Hindu Personal Lawwas liable to be imported in the present case and in holding that the shop in dispute was taken by Late Sri Ghar Bharan in the capacity of Karta of Joint Hindu Family. He urged that in the term ''family'' as defined under the Act, there was absolutely no scope of importing concept of Hindu personal law. The case should have been decided taking into consideration the relevant provisions of the Act, alone. It was further urged that there was neither any pleading nor any evidence on the record to substantiate the finding that the tenancy of the shop in dispute was the property of the Joint Hindu Family. It was not pleaded that the joint family of Ghar Bharan was in possession of any nucleus or the shop in dispute was acquired by joint family fund or joint labour of the members of said family nor there was any proof of the amalgamation of the tenancy of shop in jointestate. On the other hand, from the documentary evidence, particularly the rent note executed in favour of Late Sri Ghar Bharan, it was apparent and conclusively proved that the shop in dispute was let out to him in his personal and individual capacity and not as a Karta of member of the joint Hindi family. In brief it was urged that Deo Narain was nothing but an unauthorised occupant or at the best a sub tenant of Ghar Bharan who was liable to be evicted in the execution of the decree passed against Ghar Bharan/his heirs.

It was also urged by the learned counsel for the petitioner that the appellate authority in the appeal arising out of proceedings under Sec. 21 of the Act erred in law in relying upon the judgments & Orders passed by the Judge Small Causes Court and the revisional court and in holding that the said decisions were final and could not be Challenged ignoring the fact that validity of the said judgments and orders were challenged by the petitioner in this Court and the writ petition was pending on the relevant date.

It was also urged that the order rejecting the application of Sri Deo Narain for impalement holding that he was an outsider and had no right to be impleaded in the proceedings; having become final the appellate authority had no jurisdiction to take into consideration and to uphold his claim, while dealing with the appeal against the order passed by the prescribed authority releasing the shop.

Learned counsel for the petitioner submitted that both the petitions were liable to be allowed and the orders impugned in the said repetitions were liable to be quashed.

On the other hand, learned counsel appearing for the contesting respondent Mr. K.M. Day l vehemently urged that the shop in dispute was taken by Sri Ghar Bharan on rent as the Karta of the Joint Hindu fondly, in the year 1966. Thereafter, there was partition amongst the members of the Joint Hindu family and the shop in dispute was allotted to Sri Deo Narain who was since then occupying the same as a tenant. It was also urged that the concept of Hindu law was liable to be imported in the case in view of several decisions of this court. Mr. K.M. Dayal also submitted that the tenancy of Deo Narain, stood regularised under Sec. 14 of the Act and no notice having been served upon Sri Deo Narain terminating his tenancy, the suit for his ejectment was therefore, liable to be dismissed. It was also submitted that the courts below did not commit any error of law in dismissing the suit and the revision filed by the petitioner.

It was also urged that in the proceedings under Section 21 of the Act, Sri Narain who was actually the tenant in the Shop in dispute, having not been imp leaded, the order passed by the Prescribed Authority in the proceedings was not binding upon him. The appellate authority rightly relied upon the decision of the Judge Small Cause Court and the revisional court and rightly held that in the absence of Sri Deo Narain findings recorded in his favour could not be set aside. He submitted that the aforesaid petitions were liable to be dismissed.

Learned counsel for the parties in support of their respective submissions referred to and relied upon several decisions of Hon''ble Supreme Court, this as the decision of other High Courts, which I will notice and deal with a little latter.

I have considered the rival submismade by the counsel for the parties and also carefully gone through the record of the case.

26.The main questions involved in the present care are as to whether the shop in mte was taken by Ghar Bharan on rent on behalf of or for the Joint Hindu family as its Karta, as to whether it can be held or deemed to have been acquired by joint Hindu family and as to whether the concept Hindu law could be imported into the Act and the rules framed there under.

Tlje terms ''tenant'' and family'' have been defined in clauses (a) and (g) of section 3olhe Act as under :

"3. Definitions In this Act, unless the context otherwise requires :

(a) "tenant" in relation to a building means a parson by whom its rent is payable, and on the tenant''s death

(1) in the case of residential building such only of his heirs as normally resided with him in the building at the time of his death;

(2) in the case of nonresidential building his heirs

ExplanationAn occupant of a room in a hotel or a lodging house shall not be deemed to be a tenant.

(g) "family" in relation to a landlord or tenant of a building means, his or her

(i) spouse,

(ii) male lineal descendants,

(iii) such parents, grandparents and unmarried widowed or divorced or judically separated daughter or daughter or male lineal, descendant as may have been normally residing with him or her,

and includes in relation to a landlord, any famale having a legal right or residence in that building.

Subsection (4) of Section 34 of the Acrts also relevant for the purposes of the present case, which provides as under

"34(4) where any party to arts pr for the determination of standard rent or for eviction for a building dies during the pendency of the proceeding, such proceeding may be continued after bringing on the record

(a) in the case of the landlord or tenant, � heirs or legal representatives;

(b) in the case of unauthorised occupant, any person claiming, him found in occupation of the building."

A combined reading of the clauses (a) and (g) of Section 3 and subsection (4) of Section 34 of the Act shows that for the purposes of the proceedings under the Act, the application of personal law has been made for a limited purpose i.e. for determination of or finding out the heirs or descendants of a tenant or landlord. There is no other provision in the Act or the Rules framed there under, which expressly or by necessary implication provides for application of the personal law in the proceedhijl under the Act.

Admittedly, Ghar Bharan was inducted in the shop in dispute as tenant and tenancy was created by means of a rent deed, jointly executed by Kaushelendra Prasad s/o Sumer Singh (landlord) and Ghar Bharan s/o Sri Krishna (tenant), a copy of which is contained in Annexure ''C'' to the writ petition. The validity and correction of the said document has not been disputed by the contesting respondents. It was also not disputed by Late Ghar Bharan, during his life time. A reading of the said document reveals that the shop in question was taken on rept of Rs. 121/ per month with effect from 181966 by Late Ghar Bharan in his personal capacity. In the deed, there is no reference of any joint Hindu family or that the shop was taken by Ghar Bharan in the capacity of Karta of the family. In the rentdeed the terms and conditions of the tenancy were stated. In condition No. 2 it has specifically been stated that Ghar Bharan shall not sublet the shop in question to any body. In view of the fact that contract of tenancy was reduced to writing and the rentdeed found part of the record, there was no scope of the plea that the tenancy of the shop was the joint Hindu family property or that Ghar Bharan took the shop on rent as Karta of the Joint Hindu family. In the rentdeed it has not been stated that the amount of advance rent, which was deposited by Ghar Bharan as security, was paid out of the funds of Joint Hindu family. On the other hand it has been stated that the said amount was refundable to Sri Ghar Bharan at the time of termination of tenancy. Ghar Bharan has also undertaken the liablility to pay the monthly rent in his personal capacity. It has neither been pleaded, nor has been proved by the contesting respondents that there existed any nucleus of joint Hindu family or the same was utilised in any manner in creation of tenancy of the shop in favour of Sri Ghar Bharan. There may be a presumption of existence of Joint Hindu family in Hind law; but there is no presumption of existence of Joint family property, inasmuch as the existence of the property is not a necessary incident of joint Hindu family. If the authority for the said proposition of law is required, a reference may be made to the decision in Kuppal Obul Reddy v. Bonala Venkata Narayana Reddy (dead) through Lrs., AIR 1984 SC 1171, wherein in paragraph 15, it has been ruled by the Apex court of the country as under

"There may be presumption that there is Hindu Joint family but there can be no presumption that Joint family possesses joint family properties."

Reference in this connection may also be made to Srinivas Krishnarao Kango v. Narayan Devji Kango and others, (1995) 1 SCR 1 and AIR 1954 SC 379. It has also neither been pleaded nor proved that the tenancy in the shop in question was ever amalgamated with the property of the alleged Joint family.

Property, according to Hindu Law as described in Principles of Hindu Law by Mulla (XIV Edition) may be divided into two classes, namely, (1) joint family property, and (2) separate property.

Joint family property may be divided, according to the source from which it comes, into

(1) ancestral property; and

(2) separate property of coparceners thrown into the common coparcenary stock.

Property jointly acquired by the members of joint family with the aid of ancestral property is joint family property. Property jointly acquired by the members of a joint family without the aid of ancestral property may or may not be joint family property, whether it is so or not is a question of fact in each case. The term "joint family property" is synonymous with "coparancenary property." Separate property includes "selfacquired" property.

A Hindu, even if he be joint, may possess separate property. Such property belongs exclusively to him. No other member of the coparcenary, not even his male issue, acquires any interest in it by birth. He may sell it, or he may make a gift of it, or bequeath it by will, to any person he likes. It is not liable to partition, and, on his death in testate, it passes by succession to his heirs, and not by survivorship to the surviving coparceners.

Thus, under the law there was no ban on a coparcener or member of joint Hindu family to acquire any property separately and personally. As stated above Ghar Bharan or Deo Narain did not plead either in their written statement filed in the suit, filed by the petitioner for ejectment and recovery of arrears of rent that the nucleus of joint family was utilised by Ghar Bharan for taking the shop in dispute on rent or that the joint family possessed Joint Family fund. No such plea was also taken by them in the proceedings under Section 21 of the Act. No evidence, oral or documentary, was also adduced by the contesting respondents to prove that nucleus of joint Hindu family was utilised by Sri Ghar Bharan in acquisition of the shop in dispute on rent. Therefore, there was absolutely no justification for the courts authorities below to uphold the claim of Sri Deo Narain and to dismiss the suit and release application of the petitioner.

Learned counsel for the petitioner also submitted that the reference of personal law was irrelevant and could not be mported for the interpretation of the provision of the Act. The rulings cited by the earned counsel for the parties, in my opinion, before the enforcement of.U.P. Act No. XIII of 1972 are not relevant. However, since the said rulings have been cited I deal with the rulings cited by the learned counsel for the parties briefly.

In the case of Janki Chettyv. G. C. Nagamany Mudaliar, AIR 1926 Madras, 273 it was held by the Madras High Court that for a joint Hindu family the existence of property was not a necessary incident. In Mr. Aziz Begum v. Mt. Letifan AIR 1932 Allahabad, 112 the lease of the property in dispute was in the name of member of joint Hindu family. It was held that the other member could show that it was taken by the whole family. On fact, it was found that the lease was taken by all the members of the Joint Hindu family inasmuch as the Nazrana for the same was paid out of the joint funds. In the case of Babu Nisar Ahmad Khan v. Babu Raja Mohan Manucha and others, 1940 PC 204 the Privy Council also ruled that there was no presumption that the family possesses the Joint family property or any property at all. In the case of Pt. Mohan Lal & Others v. Pt. Rama Dayal and others, 1941 Oudh, 331 the High Court of Oudh ruled that there was no presumption of Joint Hindu family property without a nucleus inasmuch as the member of Joint Hindu family can have separate property. In the case of Devi Das and others v. Sri Shailappa and others, AIR 1961SC1277 the apex court ruled that the suit filed by the Manager of the Joint Hindu family was maintainable. In the case of K. Nagappa v. T.D. Krishnasa and another, 1971 AIR CJ 875) it has been ruled that in cases of building owned by Joint Hindu family need qf one member can be seen. In the case of Kadari Styaranaryana v. Gullapudi Narsimhamurty 1972 AIR RCJ 233, it has been ruled that the requirement of joint family can be regarded as requirement of landlord within the meaning of Sec. 10(3) (iii) of Andhra Pradesh Buildings Act. In the case of E.S. Mukkawarv. State of Maharashtra, 1977 (3) AIR, 422 the point in issue is not relevant. It deal with the question of precedents and practice. In the case otMata Din Dharma v. District Judge, Banda and others 1978 (2) RCR 218 it has been ruled that in respect of the building owned by Joint Hindu family, the release application signed by the Karta of Joint Hindu family is maintainable. In the case of Shri Pal Jain and another v. Sri Raj Kumar Jain and another 1981 ARC 436 it was ruled that if a tenant allows the building to be occupied by a member of the Joint Hindu family, it would not come within the clutches of Sec. 12 of the Act and there will be no vacancy in the building. It may be noted that this case stands impliedly over ruled by the decision of the Supreme Court in Harish Tandon ''s case, 1995(1) ARC220.

In the case of Sandeep Jain v. IInd Addl. Distt. & Sessions Judge, Lucknow and others, 1987(2) ARC 164 the shop was taken by Karta of the family Sri Barati Lal, He used to pay the rent out of the funds of the Joint Hindu family. It was further held that the tenancy in question was tenanacy of joint family and therefore, concept of Hindu law was imported while interpreting clauses (a) and (g) of the Act. The law laid down by this Court in the said case was on the facts of the said case and contrary view has been taken by this court in the cases of Jogendra Singh v. PA. Saharanpur, 1977 ARC 103 and Jawala Prasad Nigam v. District Judge and others, 1980 UP RCC, 214.

In the decision of Pt. Mohan Lai''s case (supra) it has been ruled that there is no presumption of existence of joint Sroperty without utilising the nucleus of aunt Hindu family. In the present case as stated above, there is neither any pleading nor proof to the effect that nucleus of Joint Hindu family was utilised for creation of tenancy of the shop in dispute or otherwise of that there existed any nucleus of joint family on the relevant date.

In the case of Sandeep Jain (supra) the view taken by this court was that while interpreting the clauses (a) and (g) of Sec. 3 of the Act, the concept of the Hindu law has to be imported. On the facts of the case, it was found that BaratiLal, who was Karta of the family has taken the property on rent in the capacity of Karta and the funds of the Joint Hindu family were utilised in the creation of tenancy of the said property. The said case also stands impliedly overruled by the decision of the Supreme Court in the cases of Mohd. Azim & Harish Tandon, It may be noted that the decision in Mohd. Azim''s case stands overruled by the decision of a larger Bench inHarish Tandon''s case; but to the extent it holds that on the death of a tenant his heirs inherit the tenancy right as tenants in common and not in other respect.

In Mohd. Azim v. Judge, Aligarh, 1985 (3) SCR 906 the Apex Court of the country observed that the Act defines ''tenant'' and ''family'' reference of personal law is irrelevant.

In Harish Tandon''s case (supra) the Apex Court was pleased to rule in paragraphs No. 17 and 18as under

"17. when subsec. (2) of Section 12, provides that whenever a tenant carrying on business in a building admits a person, who is not a member of his family, as a partner, the tenant shall be deemed to have ceased to occupy the building, full effect has to be given to the mandate of the legislature. There is no escape from the conclusion that such tenant has ceased to occupy the building. No discretion is left to the court to enquiry or investigate as to what was the object of such tenant while inducting a person as partner who was not the member of his family. It can be said that the aforesaid statutory provision requires the court to come to the conclusion that by the contravention made by the tenant, such tenant has ceased to occupy the building. The farmers of the Act have not stopped only at the stage of Section 12(2), but have further provided in Section 25, Explanation (i) another legal fiction saying that where the tenant ceased to occupy the building within the meaning of subsection (2) of sec. 12, subsec. (4) of Sec. 12 and Explanation (i) to Section 25, no scope had been left for the Courts to examine and consider the facts and circumstances of any particular case, as to what was the object of admitting a person who is not the member of the family, as partner and as to whether, in fact, the premises or part thereof, have been sub let to such person."

"18. It was then urged that if such strict interpretation is given to subsection (2) of Sec. 12, then similar interpretation should be given to Section 12(1) (b) and to Section 12(3) of the Act which prescribes other conditions under which the tenant shall be deemed to have ceased to occupy the building under his tenancy. It was point out that subsection (1)(b) of Section 12, says that a landlord or tenant of a building shall be deemed to have ceased to occupy the building or a part thereof, if he has allowed it to be occupied by any person who is not a member of his family. According to the learned counsel for respondents if the daughterinlaw or soninlaw of the landlord or tenant comes to reside in the building in occupation of such landlord or tenant, then it shall be deemed to have ceased to be in occupation of such landlord or tenant, which shall lead to an absurd result."

Clause (b) of subsection (1) of Sec. 12 shall not be applicable to such occupation by daughterinlaw or soninlaw or even outsider with the tenant himself. The words ''allowed'' and occupy are significant. The landlord or the tenant, as the case may be, shall be deemed to have ceased to occupy the building if he has allowed it to be occupied by any person who is not a member of his family. The words ''allowed to be occupied'' indicate that the possession of such building has been given to a person who is not a member of the family. It shall not be attracted when any person who is not a member of the family resides in such building either along with the landlord or the original tenant. If the landlord or the tenant allows any person who is not a member of the family within the meaning of the Act to occupy the premises, with the object that such person shall occupy such premises in his own rights, in that event clause (b) of subsection (1)ofSec.l2shallbeattracted."

Relaying on the aforesaid decisions, in the case of Babu Ram alias Babu Lalv, Addl District Judge (SJ.) Rampur, 1995 (2) ARC 594, it was held as under

"In Harish Tandon v. Addl. Distt. Magistrate, Alld., 1995 ACJ 1; 1995(1) ARC 220 (SC), it was ruled by the Hon''ble Supreme Court that meaning and terms of family as defined under the Act, cannot be expanded and soninlaw cannot be treated as member of family. In Mohammad Azam''s case, 1985 ACJ 118 (SC) : 1985(2) ARC 85 (SC), it was held that for the purpose of definition of the family the reference of personal law was irrelevant."

In the present case the shop in dispute is alleged to have been given to Deo Narain (brother) who was not member of Sri Ghar Bharan''s family as defined in the Act, Ghar Bharan, therefore, ceased to occupy the shop. The status of Deo Nariain was, as stated above, that of subtenant or unauthorised occupant. Further petition''s rights could not be affected by the alleged partition as she or her predecessorininterest were not parry to it.

The revisional Court also acted illegally while dealing with the revision arising out of the suit in Small Causes Court case No. 62 of 1978 that the tenancy of Deo Narain was not terminated inasmuch as it is not necessary under the law to terminate the tenancy of a subtenant, as there existed no relationship of landlord and tenant between the petitioner and Deo Narain, therefore, there was no question of termination of tenancy.

Deo Narain having been held to be a subtenant and Ghar Bharan admittedly did not remit/pay the rent to the petitioner which was outstanding against him within the statutory period of 30 days, therefore, Ghar Bharan was liable to be ejected from the shop in dispute on the ground of subletting and default and the suit was liable to be decreed. The courts below have failed to exercise jurisdiction vested in them in dismissing the suit and revision filed by the petitioner for ejectment and recovery of rent.

The appellate court while deciding the appeal arising out of the proceedings under Sec. 21 of the Act also acted illegally in relying upon the judgments and decrees passed in Small Causes Court case No. 62 of 1978 and in revision No. 218 of 1981 and treating them as final, inasmuch as against the said judgments and orders Civil Misc. Writ petition No. 9375 of 1984 was pending disposal before this court and on finality could be attached to the said judgments and orders. It has also erred in law in negativing the finding on the question of need holding that residential portion of the building could be used for business purpose when legally it was not permissible in view of the law laid down in the following decisions

(i) Prem Prakash Gupta and others v. Ilnd Additional District Judge, Allahabad, 1993 (I) ARC 77.

(ii) Jagdish Prasad v. IXth Additional District Judge, Kanpur, 1993 (II) ARC63.

(iii) Ramesh Chandra v. IJnd Additional District Judge, Ghaziabad and others (Civil Misc. Writ Petition No. 1853 of 1991 decided on 1381996).

(iv) Smt. Krishna Sharma v. VlIthADJ Ghaziabad and another, (Civil Misc. writ petition No. 30224 of 1996 decided on 13111996).

It is well settled in law that a subtenant is liable to be ejected in execution of decree passed against the chief tenant. Further Sec. 23 of U.P. Act No. XIII of 1972 provides that not only the tenant against an order is made under Sec. 21 or an appeal under Sec. 22 but any other person fund in actual occupation is liable to be evicted while putung the landlord into possession in execution of the said order. In the instant case, the application filed by Deo Narain for his impleadment as a party in the case, taking the same pleas as taken by Ghar Bharan having been rejected, the order rejecting impleadment application of Deo Narain having become final, the same operated resjudicata inasmuch as the principle of resjudicata applies by stages in the same proceedings. In this regard reference may be made to the decisions of Supreme Court in the case of Satyadhan Ghosal and others v. Smt. Deoranjin Debi and another AIR 1960 SC, 941 and Arjun Singh v. Mohinder Kumar & others (AIR 1964 SC 993) Sri Deo Narain, therefore was liable to be evicted in execution of release order passed against Ghar Bharan.

The appellate authority has also erred in law in holding that no findings could be recorded against Sri Deo Narain, as he was not impleaded as a party in the said proceeding.

The appellate court also acted illegally in holding that the tenancy of Sri Deo Narain stood regularised under Sec. 14 of the Act inasmuch as before the enforcement of the U.P. Act. No. 28 of 1976, proceedings under Section 21 of the Act were initiated and were pending disposal before the Prescribed Authority and further he was not occupying the shop in dispute with the consent of petitioner, therefore, there was no question of regularisation of tenancy of Deo Narain.

The authorities/courts below have also acted illegally in holding that the suit filed by the petitioner was barred by estoppel inasmuch as provision of Section 115 of the Evidence Act, had no application to the facts of the present case. The status of Sri

Deo Narain being that of a subtenant or unauthorised occupant he could not take the aid of principle of estoppel to defeat the claim of the petitioner as there can be no estoppel against the Statute. The view taken to the contrary by the courts/authorities below is wholly erroneous and illegal.

In view of what has been stated above, it is apparent that the Prescribed Authority has rightly recorded finding on the question of bona fide need of the petitioner for the shop in dispute. It has also been proved that Ghar Bharan has already vacated the shop in disputed and given possession of the same illegally to a subtenant Sri Deo Narian, therefore, there was no question of any hardship to him in the event the release application was allowed. On the other hand it is not disputed nor found that the petitioner had any other commercial building in her possession or to carry on the business proposed to be started by her in the shop in dispute. The judgment and order passed by the appellate authority was thus wholly illegal and perverse.

These petitions, therefore are liable to be allowed. However, in view of the fact that the writ petition No. 516 of 1987 is to be allowed, I do not consider it necessary to send back the case (out of which writ petition No. 9375 of 1984 arose), as relief of ejectment is being granted in Writ Petition No. 516 of 1987 and rent may be recovered as per judgment and order of trial court passed in suit No. 62 of 1978.

In view of the aforesaid discussion, both these petitions succeed and are allowed with costs. The judgment and orders dated 2551981 (in so far it stands against the petitioner) and dated 3041984 passed by the revisional court impugned in writ petition No. 9375 of 1984 are quashed.

The other dated 17111986 impugned in the writ petition No. 516 of 1987 is also quashed and that of the Prescribed Authority dated 2251976 is restored. The respondent No. 2 is directed to handover the vacant possession of the shop in dispute to the petitioner failing which he or any other person found in possession shall be ejected in accordance with law.