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2010 DIGILAW 3536 (ALL)

Sanjai Jain v. Raj Kishore Rastogi

2010-11-20

S.S.CHAUHAN

body2010
JUDGMENT : S.S. Chauhan, J. This revision has been filed challenging the orders dated 4.9.2009 and 1.2.2010. The facts in short are that a SCC Suit No.33 of 1977 was filed by Raj Kishore Rastogi against Mahabir Prasad Jain and others on 6.10.1977 in respect of the entire first floor except one hall and in respect of the premises in ground floor bearing no.38 situate at Major Bank Road, Lucknow seeking recovery of rent and ejectment. Written statement was filed in September, 1979 by the deceased defendant no.1 pleading therein that the property in suit was purchased itself from the joint family fund and the second storey was built out of the joint family funds and the plaintiff being the good friend, he received friendly loans from him. The suit was also contested by the other defendants by filing written statement and pleading therein that co-ownership right is vested with them and they were not bound by the deed between the plaintiff and defendant no.1. It was also pleaded that the contesting defendant has filed suit for declaration and other reliefs in respect of the same property claiming co-ownership right. The controversy in regard to the question of title reached the Supreme Court and the Supreme Court held that all the issues will have to be simultaneously decided and after the evidence is led, the Small Causes Court may decide as to whether there is any connectivity with the pending civil suit. The Supreme Court decided the matter on 20.8.2007. On 4.9.2000, an application for substitution on account of death of Smt. Indra Devi, one of the defendants who died leaving behind her sons, who are already on record, was moved. The substitution was claimed in respect of the sons only and not in respect of the daughters. Objection was filed to the substitution application but the same was allowed on 4.9.2009. Learned trial court rejected the application submitted by the revisionist seeking for review of the earlier orders vide order dated 1.2.2010. Hence this revision. 2. Submission of learned counsel for the revisionist is that the daughters, who are also heirs, are liable to be impleaded as the property was purchased out of the joint family funds, therefore, their substitution application has wrongly been rejected and the said orders are liable to be set aside. Hence this revision. 2. Submission of learned counsel for the revisionist is that the daughters, who are also heirs, are liable to be impleaded as the property was purchased out of the joint family funds, therefore, their substitution application has wrongly been rejected and the said orders are liable to be set aside. It has also been submitted that after the death of Smt. Indra Devi, her legal heirs are required to be brought on record. Smt. Indra Devi expired on 9.6.2000 leaving behind Shanjai Jain, Chandra Bhushan and Kul Bhushan along with three daughters, namely, Smt. Kaushal Agrawal, Smt. Kusum Jain and Smt. Sarika Goel. Since the three sons were already on record, the necessity arose for substituting the three daughters as well, who became the co-landlords by virtue of their being heirs and therefore, they were liable to be substituted. 3. Learned counsel for the respondents, on the other hand, has submitted that in accordance with the provisions of Section 3 (a) (1) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act No.13 of 1972) (for short "the Act"), in a residential building, only those heirs are liable to be substituted, who are residing in the building along with the tenant at the time of death and since the daughters are married daughters and had never been residing along with the tenant but in fact they are residing along with their husbands at their in-laws place (in their Sasural), therefore, the review application has rightly been rejected. He has placed reliance upon the judgments rendered by this Court in the case of Dr. Ram Narain Bagley v. District Judge, Saharanpur and others, and Abdul Raheem v. Rent Control and Eviction Officer/ Addl. City Magistrate, Kanpur and others. 4. I have heard learned counsel for the parties and gone through the record. 5. The suit was instituted for recovery of rent and ejectment, which was contested by the defendants and during the course of the proceedings, defendant no.4-Smt. Indra Devi died on 9.6.2000 and at the time of death, Shanjai Jain, Chandra Bhushan and Kul Bhushan were residing along with her. Her daughters were living separately along with their husbands. 5. The suit was instituted for recovery of rent and ejectment, which was contested by the defendants and during the course of the proceedings, defendant no.4-Smt. Indra Devi died on 9.6.2000 and at the time of death, Shanjai Jain, Chandra Bhushan and Kul Bhushan were residing along with her. Her daughters were living separately along with their husbands. Application for amendment was moved, which was allowed and since three sons are already on record, therefore, no need was felt for substituting the three daughters who, according to Section 3 (a) (1) of the Act, were not at all required to be substituted as they were not residing along with the tenant at the time of death. Thereafter an application was moved that three daughters may also be brought on record as the property was bought out of the joint family funds and the said application of the revisionist for reviewing the order was rejected holding therein that the daughters were not entitled to be substituted in a rental building as they were not residing along with the tenant at the time of her death. This Court in the case of Dr. Ram Narain Bagley (supra) has held as under:- "10. So far as provisions of Section 3 (a) (i) of the Act is concerned, there is specific provision that in case of residential building only such heir will inherit tenancy rights who resided in the building at the time of death of the tenant. Further, under this provision there is no distinction between contractual and statutory tenant to inherit tenancy rights of the tenant. Even otherwise after the death of the tenant if an application is allowed against the tenant under Section 21 (1) (a) of the Act his tenancy stands determined after expiry of 30 days and the heirs would be only statutory tenants. It has been held in various decisions of this Court that in a case of residential building only such heirs of the deceased tenant would inherit the tenancy rights who were normally residing with him in the building at the time of his death vide Smt. Sarvari Begum v. District Judge, Suresh Kumar Sharma and another v. IInd Addl. District Judge, Etawah, Smt. Asha Devi v. Vth Addl. District Judge, Gorakhpur and another, and Smt. Kamla Devi v. Rent Control and Eviction Officer/Addl. District Magistrate (F.& N), Jhansi and another. District Judge, Etawah, Smt. Asha Devi v. Vth Addl. District Judge, Gorakhpur and another, and Smt. Kamla Devi v. Rent Control and Eviction Officer/Addl. District Magistrate (F.& N), Jhansi and another. In view of the above specific provisions of the Act only such heirs would inherit the tenancy rights of the deceased tenant who normally resided with him in residential building at the time of his death." 6. Same view has been reiterated in the case of Abdul Raheem (supra). 7. Considering the aforesaid proposition of law, I find that the orders dated 4.9.2009 and 1.2.2010 have been passed correctly and they require no interference. The three sons, who were residing along with defendant no.4, are already on record. In these circumstances, the revision is devoid of merit. It is accordingly dismissed. There shall be no order as to costs.