SUCHARITA PRADHAN Vs. U P TWIGA FIBREGLASS LIMITED

JUDGEMENT

(1.) I heard Sh.Arun Mohan for plaintiffs, Sh.Bhaskar Tiwari for defendant No.1 and Sh.N.K.Kantawala for defendants 2 and 3 on plaintiffs' claim for decree of possession under Order XII Rule 6 Civil Procedure Code against defendant No.1.

(2.) Suit for possession and mesne profits @ Rs.3 lakhs per month was filed alleging that Suraj Kumar Nijhawan was owner of property No.11, Southern Avenue, Maharani Bagh, New Delhi and he let out the same for residential purpose to defendant No.1 under a lease deed dated 1/08/1976 for a period of 3 years at a monthly rental of Rs.4,000.00. Period of tenancy came to an end on 31/07/1979 and lease for further term was not granted to defendant No.1. Thereafter defendant No.1 continued in possession of the property as a tenant from month to month. It is further alleged that Suraj Kumar Nijhawah died on 11/11/1986 leaving behind wife (defendant No.2), son (defendant No.3) and 4 daughters plaintiffs 1 to 4. Each of them is the owner of property to the extent of 1/6th undivided share. It is pleaded that notice to quit dated 10/06/1991 was issued by defendants 2 and 3 to defendant No.1 through counsel and reply thereto dated 2/07/1997 was sent by defendant No.1. Thereafter, defendants 2 and 3 filed suit being No.367 of 1991 against defendant No.1 and same was dismissed in default. Plaintiffs who were proforma defendants, are not aware about restoration of said suit. It is further pleaded that plaintiffs issued notice to quit dated llth July 1997 which was duly served on defendant No.1. Defendant No.1 has no right to remain in possession of suit property. It is liable to pay mesne profits @ Rs.3 lakhs per month. Defendants 2 and 3 who together own 1/3rd share in property and did not Join plaintiffs in filing the present suit, have been impleaded as defendants.

(3.) Defendant No.1 contested the suit by filing written statement. It is not disputed that property No.11, Southern Avenue was let out to answering defendant under a lease deed dated 1/08/1976 for a period of 3 years on a monthly rental of Rs.4,000.00 by Suraj Kumar Nijhawan who died on 11/11/1986, and plaintiffs and defendants 2 and 3 are his daughters/widow/son as alleged. It is pleaded that defendants 2 an,d 3 had earlier filed suit being No.367/91 for ejectment and mesne profits against answering defendant which was later on dismissed in default. The plaintiffs were defendants 2 to 5 in said suit and they were proceeded ex-parte. In Para No.6 of the plaint in above suit it was alleged that after the death of Suraj Kumar Nijhawan there was a family settlement amongst his wife and five children and suit property came to be owned by two plaintiffs in equal shares, daughters having relinquished their shares in favour of both of them. Later on, defendants 2 and 3 filed application under Order VI Rule 17 and section 151 Civil Procedure Code seeking substitution of said Para No.6 to the effect that there had been another settlement amongst the wife and five children of Suraj Kumar Nijhawan and pursuant to that settlement suit property is owned by all of them to the extent of 1/6th share each. This application was allowed by the order dated 19/07/1995 and defendants 2 and 3 were also directed to file relinquishment deed/partition deed in court which they failed to produce and after some hearing suit was got dismissed in default. It is pleaded that landlords by their unilateral act cannot split the tenancy and notice for fraction of suit property is illegal. It is claimed that tenancy of answering defendant had not been validy terminated by the plaintiffs and it continues to be a contractual tenancy in suit property.