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2011 DIGILAW 131 (UTT)

Shiv Kumar v. Shareef Ahmed

2011-02-28

B.S.VERMA

body2011
JUDGMENT Hon’ble B.S.Verma, J. 1. Heard learned counsel for the parties and perused the record. 2. By means of this writ petition, the petitioners have sought a writ in the nature of certiorari quashing the impugned order dated 4-10-2006 passed by respondent no. 2-Prescribed Authority Kotdwar (Pauri Garhwal) in P.A.Case No. 1 of 2005, Shareef Ahmed Vs. Arun Kumar (Annexure-4 to the petition), whereby the application (paper no. 35-C) moved by the petitioners under Order 1, Rule 10(2) C.P.C. for impleadment was rejected. 3. A perusal of the record shows that release application under Section 21(1)(a) of the U.P.Act No. 13 of 1972 was filed by Shareef Ahmed son of late Shabbir Ahmed against Arun Kumar, who is respondent no. 3 herein for release of disputed shop. It is not disputed that father of the respondent no. 3 Arun Kumar namely Ram Kishan was also predecessor of the applicants-petitioners. Said Ram Kishan was a tenant of the father of Shareef Ahmed (the petitioner), who inherited the disputed shop from his father on his death and has filed the release application. 4. By the impugned order, the impleadment application has been rejected by the Prescribed Authority following the ratio of the Apex Court judgment in the case of Harish Tandon Vs. Additional District Magistrate, Allahabad, U.P. and others [AIR 1995, Supreme Court, Page 676] =1995(1) ARC, 220 (Supreme Court) and the case of H.C. Pandey Vs. G.C.Paul [1989(2) ARC 26 (SC). 5. I have perused the impugned order as well as the case law on the point. 6. Having heard the submissions of learned counsel for the parties, I am of the considered view that the learned Prescribed Authority has rightly rejected the impleadment application of the petitioners for the following reasons. 7. In the case of Mohd. Azeem Vs. District Judge, Aligarh and others [1985 (2) A.R.C. 85 (Supreme Court), it was held that “all the heirs as normally reside with the deceased tenant in the building at the time of his death become tenants. The definition does not warrant the view that all the heirs will become a body of tenants to give rise to the concept of joint tenancy. The definition does not warrant the view that all the heirs will become a body of tenants to give rise to the concept of joint tenancy. Each heir satisfying the further qualification in Section 3(a)(1) of the Act in his own right becomes a tenant and when we come to Section 12(3) of the Act, the words “the tenant or any member of his family” will refer to the heir who has become a tenant under the statutory definition and members of his family.” 8. However, in the case of H.C. Pandey Vs. G.C.Paul [1989(2) ARC 26 (SC), it was held that “it is now well settled that on the death of the original tenant, subject to any provision to the contrary either negativing or limiting the succession, the tenancy rights devolve on the heirs of the deceased tenant. The incidence of the tenancy are the same as those enjoyed by the original tenant. It is a single tenancy, which devolves on the heirs. There is no division of the premises or of the rent payable therefore. That is the position as between the landlord and the heirs of the deceased tenant. In other words, the heirs succeed to the tenancy as joint tenants.” 9. Further in the case of Harish Tandon Vs. Additional District Magistrate, Allahabad, U.P. and others [AIR 1995, Supreme Court, Page 676], the Apex Court has approved the principles of law as laid down in the case of H.C. Pandey (supra) and it was held that “the framers of the Act have clearly expressed their intention in Sections 12, 20 and 25 while protecting the tenant from eviction except on the grounds mentioned in Section 20, that after the death of the original tenant his heirs will be deemed to be holding the premises as joint tenants and for any breach committed by any of such joint tenants, all the heirs of the original tenant have to suffer. They cannot take a plea that unless the grounds for eviction mentioned in sub-section (2) of Section 20 are established individually against each one of them, they cannot be evicted from the premises in question.” 10. In the case Mohammad Parvez and others Vs. VII Additional Chief Metropolitan Magistrate/Prescribed Authority, Kanpur Nagar and others [1996(1) A.R.C. Page 439] it was held that after the death of tenant, his heirs would be joint tenants. In the case Mohammad Parvez and others Vs. VII Additional Chief Metropolitan Magistrate/Prescribed Authority, Kanpur Nagar and others [1996(1) A.R.C. Page 439] it was held that after the death of tenant, his heirs would be joint tenants. The same view was taken in the case of Smt. Anju Sharma Vs. Suresh Chand Jain and other, [1993 (1) ARC 291] and Smt. Usha Rani Vs. Prescribed Authority/Munsif, Roorkee, District Haridwar and others [1998 (16) LCD, Page 1169]. 11. Thus, from the above discussion, it is clear that after the death of tenant, his heir gets the status of joint tenants and not tenants in common. 12. It was also held in the case of Harish Tandon (supra) that for any breach committed by any joint tenant, all the heirs of the original tenant have to suffer. It was held in the case of Anju Sharma (supra) that the decree passed against joint tenant cannot be challenged by other heirs of deceased tenant on the ground that they were not impleaded in the suit. In the case of Mohammad Parvez and others (supra), it was held by the Allahabad High Court that “in any proceeding when a joint tenant is impleaded as a party in the case, he represents the interest of all the joint tenants unless it is shown that such joint tenant colluded with the landlord or such other person who contested the matter. There is a presumption that a joint tenant represents the interest of all other tenants.” 13. From the aforesaid propositions of law, it can safely be inferred that the decree passed against joint tenant, would bind other heirs of the deceased tenant, though they were not impleaded in the suit. The learned Prescribed Authority has observed in the impugned order that since the property involved is a non-residential building, hence heirs of tenant Ram Kishan, father of Arun Kumar shall be the tenants and it is also on record that one of the heir of Ram Kishan is already on record. The impleadment application was ultimately rejected. 14. In view of above discussion, I am of the view that the application for impleadment moved by the petitioners has been rightly rejected by the Prescribed Authority. The impugned order does not suffer from any perversity or manifest error of law. The writ petition being devoid of merit is liable to the dismissed outright. 15. 14. In view of above discussion, I am of the view that the application for impleadment moved by the petitioners has been rightly rejected by the Prescribed Authority. The impugned order does not suffer from any perversity or manifest error of law. The writ petition being devoid of merit is liable to the dismissed outright. 15. The writ petition is dismissed. Costs easy. 16. All pending applications also stand disposed of accordingly. 17. Interim order dated 20-11-2006 passed by this Court is vacated.