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2000 DIGILAW 500 (ALL)

SHANKER LAL v. RAM SEWAK

2000-03-31

SUDHIR NARAIN

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SUDHIR NARAIN, J. ( 1 ) THIS writ petition is directed against order dated 4. 9. 1991 passed by the Prescribed Authority, respondent No. 3, whereby he allowed application filed by Ram Sewak respondent No. 1. for restoration of possession of the disputed premises. ( 2 ) BRIEFLY stated, the facts of the case are that the petitioner filed an application under Section 21 (1) (a) and (b) of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (in short the Acf) against Ram Kumar, respondent No. 2. alleging that the disputed shop is in a dilapidated condition and is needed by him. The application was contested by Ram Kumar. The prescribed Authority rejected the application on 25. 4. 1987. The petitioner preferred an appeal against the said order before the District Judge. The appellate authority allowed the appeal on 8. 9. 1990 and directed the eviction of respondent No. 2. He filed Writ Petition No. 7747 of 1990. This writ petition was dismissed by this Court on 6. 4. 1990. Respondent No. 2 filed S. L. P. No. 7916 of 1990 before the Honble the Supreme Court. It was dismissed on 30. 7. 1990. ( 3 ) THE petitioner filed an application under Section 23 of the Act for enforcement of the order of eviction passed by the appellate authority on 8. 2. 1990 against respondent No. 2, Ram Sewak. respondent No. 1, filed objection to the said application. The Prescribed Authority rejected his objection on 20. 8. 1990 on the ground that he has no focus standi. The petitioner, thereafter, was put in possession of the disputed premises. ( 4 ) RAM Sewak. respondent No. 1. filed an application on 5. 10. 1990 under Order XXI, Rule 100 read with Section 151, Code of Civil Procedure praying that he may be restored possession as he was evicted in execution of an order passed in the proceedings under Section 21 of the Act in which he was not a party. He claimed that his father. Naraln Das, was a tenant of the disputed shop, and after his death it was inherited by his two sons, namely, Ram Kumar and Ram Sewak, respondent No. 1. It was contended that the landlord had Impleaded only Ram Kumar as a party in the proceedings under Section 21 of the Act and he was not made a party. Naraln Das, was a tenant of the disputed shop, and after his death it was inherited by his two sons, namely, Ram Kumar and Ram Sewak, respondent No. 1. It was contended that the landlord had Impleaded only Ram Kumar as a party in the proceedings under Section 21 of the Act and he was not made a party. The petitioner filed objection alleging that, in fact. Ram Kumar alone was in occupation of the shop in question and in any case he represented the estate of the deceased-tenant. The Prescribed Authority has accepted the version of Ram Sewak and has allowed the application by the impugned order dated 4. 9. 1991 and directed the petitioner to restore the possession to him. This order has been challenged in the present writ petition. ( 5 ) NARAIN Das, father of the petitioner, was the tenant of the disputed shop. He died leaving behind his two sons, viz. Ram Kumar and Ram Sewak. The respondent No. 1 filed application for restoration of possession and in that application, he never alleged that Ram Kumar had colluded with the petitioner. The application was filed under Section 21 against Ram Kumar in the year 1985. The version of the petitioner was that in fact, Ram Kumar alone was carrying on business In the disputed shop. Had Ram Sewak been carrying on business in the disputed shop it was not believable that he could not have come to know about the application filed by the petitioner-under Section 21 of the Act. Ram Kumar. his brother contested the application. His objection was accepted by the Prescribed Authority and he rejected the application of the petitioner filed under Section 21 of the Act on 25. 4. 1987. The petitioner preferred an appeal against the said order and the appeal was allowed on 8. 2. 1990. Respondent No. 2 filed Writ petition No. 7747 of 1990 in this Court. The writ petition was dismissed. He filed an SLP before the Honble the Supreme Court which, too, was dismissed. These proceedings were hotly contested by him. ( 6 ) SECONDLY, there is nothing to show that he did not represent the interest of his brother. Ram sewak. He had claimed that he was in occupation of the shop in question. If respondent No. 1 was in possession, of the shop in question, he could have stated about this fact also. ( 6 ) SECONDLY, there is nothing to show that he did not represent the interest of his brother. Ram sewak. He had claimed that he was in occupation of the shop in question. If respondent No. 1 was in possession, of the shop in question, he could have stated about this fact also. ( 7 ) THIRDLY, the tenancy is alleged to have been inherited from their father, Narain Das. It will be a joint tenancy and if the notice is served on any of the co-tenants, it could be held that service was sufficient on all the tenants. In H. C. Pandey v. G. C. Paul, AIR 1989 SC 1470 . it was held that the heir succeed as Joint tenants. It is a single tenancy which devolves upon the heirs. There is no division of the premises or of the rent payable, and that Is the position between the landlord and the heirs of the deceased tenants. This position was reaffirmed by the Supreme Court in harish Tandon v. Addl. District Judge, U. P. and others. AIR 1995 SC 675. ( 8 ) A Division Bench of this Court in Gulab Ch. v. Munsif (West ). Allahabad and others, 1988 alj 582, where a suit for injunction was filed by one of the co-tenants with the allegations that the decree obtained against one of the co-tenants should not be executed against him, it was held that as the plaintiff was a Joint tenant, she was bound by the Judgment in the case obtained against one of the joint tenants unless it was shown that there was collusion. The Prescribed authority did not record any finding that Ram Kumar, brother of Ram Sewak, had colluded with the petitioner. The evidence clearly Indicated that he contested the matter up to the Supreme court and when he has failed, the application has been filed by his brother for restoration of the possession. ( 9 ) IN view of the above, the writ petition is allowed. The Impugned order dated 4. 9. 1991 is hereby quashed. ( 10 ) THE parties shall bear their own costs. .