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2007 DIGILAW 1948 (ALL)

Ram Murti Yadav v. Rishabh Kumar Dubey

2007-07-20

RAKESH TIWARI

body2007
JUDGMENT : RAKESH TIWARI, J. 1. Heard counsel for the parties and perused the record. 2. The Petitioner is tenant in the disputed shop situated in House No. 107/79A Jawahar Nagar, Kanpur owned by Sri Dhani Ram Dubey on the basis of a Will executed by his wife in his favour. Sri Dhani Ram Dubey was survived by his two sons namely, Mahendra Nath Dubey and Kailash Nath Dubey. He had also executed a registered Will dated 10.3.1997 in favour of his grandson Rishabh Kumar Dubey S/o Kailesh Nath Dubey who according to the terms of the said registered Will acquired the ownership and status of the landlord of the tenement. 3. A partition Suit No. 1500 of 2003, is also to be pending between the two sons of Sri Dhani Ram Dubey, i.e., Kailash Nath Dubey and Mahendra Nath Dubey. 4. After inheriting the tenanted accommodation in dispute Rishabh Kumar Dubey gave a notice to the Petitioner claiming himself to be landlord on the basis of Will dated 10.3.1997 executed by Sri Dhani Ram demanding arrears of rent. The Petitioner replied to the notice denying the title and claim of Rishabh Kumar Dubey as landlord. He informed that the rent was being paid to Mahendra Nath Dubey son of Sri Dhani Ram Dubey. J.S.C.C. Suit No. 307 of 2003, was filed by Rishabh Kumar Dubey for eviction and recovery of arrears of rent as well as damages against the Petitioner who filed his written statement denying the claim of the Respondent on the ground that the rent of the shop in dispute is being paid to Sri Mahendra Kumar Dubey regularly on the oral instructions given by Sri Dhani Ram Dubey in his life time. 5. The relevant extract of paragraph 12 of the W.S. filed by the tenant copy of which is appended with the supplementary-affidavit is given here-in-below. 12. That the Defendant is very old tenant and was paying the rent to the Plaintiffs' grandfather late Dhani Ram Dubey. Late Dhani Ram Dubey has instructed the Defendant to pay the rent of the shop in question to his son Mahendra Nath Dubey. According to his instructions the answering Defendant is paying rent to Mahendra Nath Dubey after his death the Defendant had paid the rent upto December 2004. Consequently no rent is due upon the Defendant as alleged in the plaint. According to his instructions the answering Defendant is paying rent to Mahendra Nath Dubey after his death the Defendant had paid the rent upto December 2004. Consequently no rent is due upon the Defendant as alleged in the plaint. One shop is in possession of the father of the Plaintiff Shri Kailash Nath Dubey. He never raised any objection despite the knowledge of the fact that the Defendant is paying rent to Mahendra Nath Dubey. 6. The Judge Small Causes Court, Kanpur Nagar vide order dated 5.8.2006, decreed the suit in favour of Respondent Rishabh Kumar Dubey holding the tenant Petitioner defaulter in payment of rent and further observed that the written statement was not signed by the Petitioner. 7. Aggrieved by the aforesaid order dated 5.8.2006, the Petitioner filed J.S.C.C. Revision No. 53 of 2006, before the revisional court which was dismissed by the Additional District Judge, Court No. 1, Kanpur Nagar vide order dated 18.10.2006 affirming the judgment of the Judge Small Causes Court, Kanpur Nagar in J.S.C.C. Suit No. 307 of 2003, Rishabh Kumar Dubey v. Ram Murti Yadav. 8. The Petitioner asserted before the revisional court that the written statement was signed by Sri Ram Murti Yadav and he explained that witness Jai Ram Yadav in his statement has stated that he had filed the statement signed by Sri Ram Murti Yadav. Photocopy of the statement of Jai Ram Yadav has been brought on record, hence it appears that due to inadvertence has observed that the written statement was not filed under the signatures of Sri Ram Murti Yadav the tenant. 9. The counsel for the Respondent has supported the judgments of the courts below and submits that Rishabh Kumar Dubey became the landlord of the tenament on the basis of Will dated 10.3.1997 executed by his grandfather Sri Dhani Ram Dubey as such he is entitled to receive rent from tenant Sri Ram Murti Yadav. 10. From the written statement of paragraph 12 extracted above it appears that Sri Ram Murti Yadav the Petitioner tenant in this case claims that Sri Mahendra Nath Dubey to be the landlord on the ground that he was paying the rent of the shop in dispute to him on the instructions of Sri Dhani Ram Dubey given in his life time. 11. 11. A careful reading of para 12 clearly brings out that late Dhani Ram Dubey had neither renounced his ownership of the house nor his status of landlord, but had only instructed the tenant to pay it to Mahendra Nath Dubey on his behalf. Thus, the status of Sri Mahendra Nath Dubey is not of landlord but that of an agent of Sri Dhani Ram Dubey. 12. Even otherwise, after the death of Sri Dhani Ram Dubey Rishabh Kumar Dubey acquired the status of owner and landlord on basis of the registered Will dated 10.3.1997 in his favour. Admittedly the Petitioner did not pay any rent to him inspite of demand notice, hence he is in default in payment of rent as any instruction given by Sri Dhani Ram Dubey in his life as landlord for payment of rent of the shop in dispute to Sri Mahendra Nath Dubey were extinguished and becomes irrelevant once the Will executed in favour of Rishabh Kumar Dubey came in force after his death. The Will creates new right in favour of Rishabh Kumar Dubey as owner and landlord of the tenement. 13. For the reasons stated above, in my opinion, there is no illegality or infirmity in the impugned orders of the courts below. The writ petition is accordingly, dismissed. The Petitioner tenant is directed to handover peaceful and vacant possession of the disputed shop to the landlord Rishabh Kumar Dubey within a period of 2 months from the date of production of a certified copy of this order.