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2015 DIGILAW 2658 (ALL)

Rammo Devi v. District & Session Judge

2015-08-28

SUNITA AGARWAL

body2015
JUDGMENT Mrs. Sunita Agarwal, J. Heard learned counsel for the parties. 2. This writ petition is directed against the release under section 16(1) of the U.P. Act No.13 of 1972. On an allotment application filed by one Bal Krishna Dixit, a report of Rent Control Inspector was obtained and the Inspection report was served upon the parties. At the time of inspection, one Pyare Lal Agarwal, one of the joint-tenants of the premises in question was present. The Rent Control & Eviction Officer after consideration of the report of Rent Control Inspector found that Pyare Lal Agarwal, the co-tenant had shifted to house No.12/472-A, Gwaltoli, Kanpur and is residing permanently therein. 3. In the proceedings of declaration of vacancy before the Rent Control & Evication Officer, certain papers were filed to establish the fact that Pyare Lal had appeared before the Rent Control & Eviction Officer on 27.7.2010 through his Advocate. He had obtained the copy of the allotment application dated 25.5.2010 but he did not contest the matter any further. On 4.9.2010, Bishan Chand Agarwal and other co-tenants of the premises in question had filed application under Order 1 Rule 10 read with Section 151 CPC for impleading them. They had also filed their objections alongwith the impleadment application. The Rent Control & Eviction Officer though refused to implead them but they were heard on the issue of vacancy and due opportunity was given to produce evidence. 4. Further, the order of declaration of vacancy was challenged in writ petition No. 47651 of 2011 by Sri Bishun Chand and others who had filed impleadment application before the Rent Control and Eviction Officer. The writ petition was withdrawn with liberty to avail the statutory remedy of revision against the order of vacancy. 5. One Revision No. 33 of 2014 was filed by Bishun Chandra Agarwal and others and another revision no. 32 of 2014 was filed by Kishan Kumar son of Gulab Chandra Agarwal. Both the revisions were consolidated and heard together. 6. The revisional Court after consideration of findings recorded by the Rent Control & Eviction Officer and objections filed by the revisionists dated 30.4.2011 before him, has held that there was no dispute that it was a joint tenancy of four brothers. In case of vacation/acquisition of house by one of the brothers in co-tenancy, all the co-tenants be deemed to have ceased to occupy the building. In case of vacation/acquisition of house by one of the brothers in co-tenancy, all the co-tenants be deemed to have ceased to occupy the building. Reliance is placed upon Full Bench decision of this Court in Smt. Ram Devi Shakhya and another vs. I ADJ, Lucknow and another reported in 1981 Allahabad Rent Cases 305. In paragraph 28 and 29 it has been held: - "28.The problem in the present case is not of termination of tenancy by a notice to quit given by the landlord to the tenants. The question before us is if one co-tenant builds or otherwise acquires another residential building, will all the co-tenants be deemed to cease to occupy the building under tenancy. As we have been above, the correct legal position is that among themselves the co-tenants as tenants-in-common may have a specified though undivided share in the leasehold-interest, but they have unity of possession. There is privity of estate between them and the landlord. The mere fact of inheritance does not destroy the integrity of the lease. It remains single lease. Each one of the co-tenants is equally responsible to the landlord for carrying out the terms and conditions of the lease and of the law in force. If any of the tenants-in-common commits breach or default the landlord is entitled to enforce his rights of terminating the lease and suing for ejectment. It is hence clear that "where one of the co-tenants builds or otherwise acquires another residential building within the meaning of sub-section (3) of section 12, the tenant, namely the entire set of co-tenants shall be deemed to have ceased to occupy the building under his sub-tenancy. It cannot be that the share belong to the co-tenant in default alone shall fall vacant." "29. Sub-section (3) of Section 12 emphasizes acquisition of another building in a vacant state. Under it, the question of possession is the all important feature. If a building is acquired in a vacant state it is obviously available for being occupied. Section 12(3) frowns upon the tenant having two buildings for his occupation at the same time. Since co-tenant's who take as tenant-in-common have unity of possession, they all will fell in the grip of section 12(3) if one of them gets another residential building in a vacant state." 7. This legal position could not be disputed by the learned counsel for the petitioners. Since co-tenant's who take as tenant-in-common have unity of possession, they all will fell in the grip of section 12(3) if one of them gets another residential building in a vacant state." 7. This legal position could not be disputed by the learned counsel for the petitioners. He only submits that no opportunity whatsoever has been provided to the co-tenants who are still residing in the premises. There is no dispute about the fact that it was a joint tenancy of four brothers and therefore it was one tenancy. This contention of learned counsel for the petitioners that the order is vitiated for lack of opportunity to co-tenants is not acceptable for two reasons (1) Other co-tenants had filed impleadment application before the Rent Control & Eviction Officer. Though they were not impleaded but they were heard and their objections were considered. (2) All the four tenants had filed revision challenging the order of declaration of vacancy. The Revisional Court after consideration of their objection taken before the Rent Control & Eviction Officer came to the conclusion that there is no infirmity in the order. The best defence which could have been taken by the petitioners have been considered by the revisional Court. Therefore, it cannot be said that opportunity has not been provided to the co-tenants. 8. The judgment of the Apex Court relied upon by the learned counsel for the petitioners in Yogendra Tiwari vs. District Judge, Gorakhpur reported in 1984 LawSuit (SC) 67 is not applicable in the facts and circumstances of the instant case. 9. There is no dispute about the legal position regarding declaration of vacancy. No interference is required. 10. The writ petition is dismissed.