MOHD ASLAM Vs. MOHD AJMAL

JUDGEMENT

(1.) PRESENT Revision Petition has been filed against order dated 18th July, 2008 by virtue of which petitioners/tenants leave to defend application has been dismissed.

(2.) MR. J. K. Jain, learned Counsel for petitioners submitted that additional Rent Controller (in short ARC) had not considered the effect and impact of Muslim Personal Law in the present case, as here a Muslim landlord/ owner died leaving behind two sons and four daughters. According to Mr. Jain, the principle that one co-owner can file and maintain an independent eviction petition without impleading the other co-owners, applies to Hindus and not to Muslims. He submitted that after death of a Muslim owner/landlord all his legal heirs become owners in common and not co-owners as in Hindus. According to him, all heirs are necessary to be impleaded in eviction petition and as respondent no. 1/landlord failed to do so, eviction petition was liable to be dismissed. In this context, Mr. Jain referred to and relied upon a judgment in the case of Mt. Fardosjahan Begum w/o Syed Alay rasul and others Vs. Kazi Shafiddin s/o Kazi Shujatali musalman and others reported in AIR (29) 1942 Nagpur 75 wherein it has been held as under :-

(3.) MR. Jain further stated that Additional Rent Controller has erroneously dismissed petitioners leave to defend application without deciding petitioners application wherein it had been prayed that petitioners be allowed to bring on record the fact that the alleged partition deed on which respondent no. 1 is relying upon to be owner of the suit property is absolutely illegal, uncalled for and having no force in the eyes of law as petitioners have already challenged the ownership of respondent no. 1 in their application for leave to defend.