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2011 DIGILAW 1579 (ALL)

Rishi Kumar and others v. Daya Shanker Daunesia

2011-07-04

SHISHIR KUMAR

body2011
Shishir Kumar, J.;- Heard learned counsel for the parties. 2. This is a second appeal filed by the defendants/appellants. The brief facts, as stated in the plaint, are that the plaintiff/respondent filed a suit for possession of the property in question on the ground that initially said shop was given on rent at the rate of Rs.150/- per month to one Sri Satya Dev Paliwal. He was doing business in the name and style as Paliwal Company Arms and Ammunition. He does not pay rent and on 01.03.1983 without payment of rent he has sub-letted shop in question to husband of the defendant No.4. It was also alleged that Late Mata Prasad has got no right to remain in possession of the property in dispute. In 2007, Sri Mata Prasad died and the defendant No.1 is doing business illegally in the said shop. In the month of June 2007, the District Magistrate on an application sealed the shop in question on the ground that the defendant No.1 is doing business illegally without any licence. A notice regarding vacation of the shop and handing over the possession was given, but the possession of the said shop has not been handed over. 3. The defendants raised an objection that suit itself is not maintainable in view of the fact that original tenant has not been impleaded as a party, therefore, the suit should be dismissed for non-joinder of the necessary party. The trial court after considering the evidence on record and pleadings of the parties vide judgment and order dated 30.09.2009 was pleased to decree the suit holding therein that admittedly the defendants are unauthorized occupants of the shop in question being the fact that original tenant Sri Paliwal has got no right to sub-let the said accommodation. The appeal filed by the defendants/appellants has been dismissed vide judgment and order dated 25.03.2011 confirming the findings recorded by the trial court. Hence, the present appeal has been filed. 4. Learned counsel for the appellants submitted before the Court that admittedly they are sub-tenants on behalf of Mr. Paliwal from 1983, therefore, unless and until original tenant is impleaded as a party to the suit, the suit itself was not maintainable. He has placed reliance upon two judgments reported in 2008 AIR SCW 6476; Ranganayakamma & Anr. Vs. K.S. Prakash (D) by L.Rs. & Ors & 2002 AIR SC 569; Vashu Deo Vs. Paliwal from 1983, therefore, unless and until original tenant is impleaded as a party to the suit, the suit itself was not maintainable. He has placed reliance upon two judgments reported in 2008 AIR SCW 6476; Ranganayakamma & Anr. Vs. K.S. Prakash (D) by L.Rs. & Ors & 2002 AIR SC 569; Vashu Deo Vs. Balkishan. Placing reliance upon these two judgments, learned counsel for the appellants submitted that unless and until it is proved that the appellant sub-tenant is concerned the title of the respondent could not come to an end till passing of such decree for eviction against him. 5. I have considered the submission of the parties and perused the record. There is no dispute to the effect from the record that one Paliwal was authorized tenant for monthly rent of Rs.150/-. It is also not disputed that in the year 1983, Sri Paliwal has sub-letted this accommodation to one Mr. Mata Prasad. According to law, Sri Mata Prasad cannot become legal tenant of the property in dispute unless and until he claims that he is tenant in the shop in question prior to 1976. Admittedly, he came in possession of the property after 1983, therefore, legally he cannot claim that he has become tenant of the property in dispute in lieu of Mr. Paliwal. Further, the contention regarding non-impleadment of original tenant cannot be sustained in view of the fact that admittedly from 1983 Mr. Paliwal, the original tenant, is not in possession of the property in dispute. He has already vacated the same and at present moment, when the suit was filed, Sri Mata Prasad was in possession of the property in question. In spite of long possession of the property, he cannot claim that he has become authorized occupant and has become tenant by virtue of lapse of time. The law does not permit said person to become authorized occupant of the shop in question in spite of the fact that the tenant of the shop has handed over the possession of the property in question. The sub tenancy is not permitted. The status of the defendants/appellants will always be unauthorized occupants. 6. In such circumstances, I am of the opinion that findings recorded by courts below are findings of fact, needs no interference. 7. The appeal is hereby dismissed. 8. No order as to costs.