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2011 DIGILAW 2972 (ALL)

BRIJ BHUSHAN SHARMA v. ANAND

2011-12-23

KRISHNA MURARI

body2011
JUDGMENT Hon’ble Krishna Murari, J.—Heard Sri A.K.Goyal, learned counsel for the petitioner and Sri Rajesh Gupta for the respondents. 2. Pleadings have been exchanged between the parties and with the consent of the learned counsel for the parties, the writ petition is being finally disposed of at this stage. 3. Undisputed facts are that the plaintiff-petitioner filed a suit No. 664 of 1985 against the respondent No. 2 (since deceased) and represented by respondent No. 1 and 2/2 to 2/5 and respondent No. 3 (since deceased) and represented by respondents No. 3/1/1 for eviction and damages on the ground of arrears of rent and creating sub-tenancy. Defendant Roop Ram only contested the suit and filed written statement. The suit was decreed by the trial Court vide judgment and order dated 19.7.1991 for arrears of rent with the direction to the defendants to hand over the possession of the suit property within a period of 30 days. The petitioner decree holder filed an application dated 21.8.1991 for execution which was registered as execution case No. 74 of 1991. In the meantime, Room Ram went up in appeal against the judgment and order of the trial Court. Civil appeal No. 154 of 1991 was dismissed vide judgment and decree dated 10.1.1992. He also filed a Second Appeal No. 218 of 1992 before this Court wherein a conditional interim order dated 27.1.1992 was passed on account of which the execution proceeding was held up. Roop Ram the appellant of the Second Appeal died on 9.7.1998. When no steps were taken for substitution, vide order dated 27.8.2003, the Second Appeal was dismissed as abated and the interim order was vacated. With the dismissal of the second appeal and vacation of the interim order passed therein, the execution proceedings were commenced again. The executing Court vide order dated 13.8.2004 directed the petitioner decree holder to take steps for service of notice on the heirs of Roop Ram the deceased judgment-debtor. Respondent No. 1 herein son of late Roop Ram and one Ram Ratan respondent No. 3/1/1 alleging himself to be heir of deceased Nanwa put in appearance on 29.11.2004 and sought time for objection. Efforts were made by them to delay the proceeding of the execution case by seeking substitution of four married daughters of late Roop Ram. Respondent No. 1 herein son of late Roop Ram and one Ram Ratan respondent No. 3/1/1 alleging himself to be heir of deceased Nanwa put in appearance on 29.11.2004 and sought time for objection. Efforts were made by them to delay the proceeding of the execution case by seeking substitution of four married daughters of late Roop Ram. The petitioner decree holder moved an application giving out names of heirs of the deceased Roop Ram with a prayer to proceed with the execution as the interest of the deceased judgment-debtor was represented by one of his heir who had already put in appearance. The executing Court vide order dated 12.4.2005 allowed the application and dismissed the objection filed on behalf of the heirs of the judgment-debtor. Thereafter, respondent No. 1 filed an objection under Section 47 C.P.C. which was registered as misc. case No. 62 of 2005. With an intention to further delay the execution proceeding, respondent No. 1 filed an application in misc. case No. 62 of 2005 seeking permission to adduce oral evidence of the heirs of deceased judgment-debtor Roop Ram. The executing Court rejected the application on 20.12.2006. Aggrieved, respondent No. 1 and one married daughter of deceased judgment-debtor Smt. Shiv Kumari (respondent No. 2/4) filed a revision which was dismissed vide order dated 14.2.2007. After dismissal of the objection under Section 47 C.P.C. the petitioner decree holder moved an application dated 3.7.2009 for appropriate orders for execution of the decree with the prayer that there was no necessity for effecting service on the married daughters of the deceased judgment daughter as his interest was duly represented by his son respondent No. 1 and one of the married daughter namely, Smt. Shiv Kumari. The application was resisted by respondent No. 1 on the ground that execution is not liable to be proceeded unless service is effected on all the heirs of deceased judgment-debtor. The executing Court vide order dated 17.11.2009 rejected the objection filed by the respondent No. 1 as well as his prayer to file further objection under Section 47 C.P.C. and issued ‘Parwana Dakhal’ for which steps were to be taken by the petitioner decree holder within seven days. The respondent No. 1 and 2/4 challenged the order dated 17.11.2009 by filing civil revision No. 157 of 2009. The respondent No. 1 and 2/4 challenged the order dated 17.11.2009 by filing civil revision No. 157 of 2009. The District Judge vide order dated 1.12.2009 admitted the revision despite objection filed by the petitioner regarding maintainability of the revision and stayed the ‘Parwana Dakhal’. Aggrieved by the same, the petitioner has approached this Court. 4. A perusal of the grounds of revision, filed as Annexure 13 to the writ petition, goes to show that the same was filed mainly on the ground that all the legal heirs of the deceased judgment-debtor Roop Ram have not been impleaded and not served with any notice, hence the execution cannot proceed. 5. It is contended by learned counsel for the petitioner that not only the revision under Section 115 C.P.C. against an order issuing ‘Parwana Dakhal’ was not maintainable but even otherwise, on merits in view of the fact that tenancy rights devolved on the heirs of the deceased tenant as joint tenants and not as tenants, in common and thus, if one of the heirs was impleaded in the execution proceedings, the proceedings cannot be stalled on the ground of non-impleadment of all the heirs of the deceased judgment-debtor. 6. In reply, it has been submitted that a Court of law cannot proceed with the execution of a decree when the judgment-debtor against whom, execution proceedings were originally sought is dead unless all the legal representatives have been brought on record. Reliance in support of the contention has been placed on the Division Bench judgment of Calcutta High Court in the case of Smt. Rajlakshmi Dassi v. Bonomali Sen and others, AIR 1955 Cal 573 . 7. I have considered the rival submission and perused the record. 8. The facts narrated above being undisputed, the sole question to be considered is whether all the legal heirs against whom decree is being executed are liable to be substituted and put to notice. The Hon’ble Apex Court in the case of H.C. Pandey v. G.C. Paul, AIR 1989 SC 1470 , has held 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 as joint tenants and not as tenants in common. The incidence of the tenancy are the same as those enjoyed by the original 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. That is the position as between the landlord and the heirs of the deceased tenant. The Apex Court in the said case has categorically held that service of notice under Section 106 of the Transfer of Property Act on one of the heirs of the original tenant was sufficient. The Apex Court again in the case of Harish Tandon v. Addl. District Magistrate, Allahabad, U.P. and others, 1995 (25) ALR 184 (SC), has held that it is difficult to hold that after the death of the original tenant his heirs become tenant in common and each one of the heirs shall be deemed to be an independent tenant in his own right. It is a single tenancy which devolves on the heirs and there is no division of the premises or of the rent payable therefor, and the heirs succeed to the tenancy as joint tenants. 9. This Court in the case of Krishna Kumar Agrawal v. XIIth Additional District Judge, Moradabad and others, 1995(2) ARC 637, has held that if an application for release has been allowed impleading only some of the heirs left by the deceased-tenant, the order cannot be quashed merely on the ground of non-impleading of all the legal heirs of the deceased tenant. 10. In view of the above decisions, the legal proposition stands well settled with rider to the rights of the heirs who succeeded to the tenancy after death of the original tenant. They succeed as joint tenants and not as tenants in common. Their tenancy remains a single tenancy and the mere fact that rent is only paid by one of the legal heirs would not have the effect of splitting tenancy. Reference may also be made another decision of learned single Judge in the case of Satish Chandra and others v. Shiv Kumar Gupta and others, 2009(75) ALR 540, wherein in identical circumstances, it has been held that married daughter living separately after marriage at the respective in-law’s house has no concern in respect of the tenancy litigation and there is no reason to assert that services must also be effected on married daughters. 11. 11. The facts of the case in hand clearly spell out that the proceedings were contested by the deceased Roop Ram the judgment-debtor and it was only after his death initially the execution proceedings were contested by one of his son respondent No. 1 herein and subsequently one of the married daughter respondent No. 2/4 also appeared and filed objection under Section 47 C.P.C. which was dismissed. The objection raised by respondent No. 1 that all the heirs of the deceased judgment-debtor were liable to be impleaded and put to notice is without any substance and only intention appears to be to delay the proceeding of execution. 12. In so far as other defendant judgment-debtor Nanwa is concerned, the allegation against him was that he was inducted as sub-tenant by Roop Ram the tenant and as a matter of fact, he never contested the proceeding of the suit. 13. The judgment in the case of Smt. Rajlakshmi Dassi (Supra) relied upon by learned counsel for the respondent is clearly distinguishable on facts. In the said case, the Calcutta High Court was considering the question as to whether after death of the judgment-debtor the application filed by the Government of West Bengal could be considered and proceeded without impleading the legal representatives. In the said facts, it was held that where a judgment-debtor dies before a decree is fully satisfied the holder of the decree may apply to the Court which passed it to execute the same against the legal representative of the deceased and it was not open to the decree holder to proceed with the execution case in spite of the death of judgment-debtor without either impleading heirs of the judgment-debtor in the execution proceeding or to start fresh execution case against the legal representative. The question involved in this case whether the execution proceedings were liable to be proceeded with without impleading all the legal heirs of deceased judgment-debtor was not in issue before the Calcutta High Court and thus the ratio of the said case does not help the contesting respondents in any manner. 14. In the aforesaid facts, it can safely be held that the interest of the deceased judgment-debtor Roop Ram was duly represented by respondent Nos. 14. In the aforesaid facts, it can safely be held that the interest of the deceased judgment-debtor Roop Ram was duly represented by respondent Nos. 1 and 2/4 in the execution proceedings and after death of judgment-debtor, all the legal heirs succeeded to the tenant as joint tenants and thus it was not necessary to implead all the legal heirs and put them to notice. 15. The revision filed by the respondent Nos. 1 and 2/4 against the order passed by the executing Court issuing ‘Parwana Dakhal’ was not liable to be entertained after specific objection raised by the petitioner. 16. For the above reasons, this writ petition must succeed and is allowed. The impugned order dated 1.12.2009 passed by the District Judge, Meerut in civil revision No. 157 of 2009 is quashed and the said civil revision stands dismissed. 17. The executing Court is directed to execute the decree in accordance with law expeditiously preferably within a period of one month from the date of receipt of the certified copy of this order. ——————