SANJAI JAIN Vs. RAJ KISHORE RASTOGI

JUDGEMENT

(1.) This revision has been filed challenging the orders dated 4.9.2009 and 1.2.2010. The facts in short are that a SCC Suit No. 33 of 1977 was filed by Raj Kishore Rastogi against Mahabir Prasad Jain and others on 6.10.1977 in respect of the entire first floor except one hall and in respect of the premises in ground floor bearing No. 38 situate at Major Bank Road, Lucknow seeking recovery of rent and ejectment. Written statement was filed in September, 1979 by the deceased defendant No. 1 pleading therein that the property in suit was purchased itself from the joint family fund and the second storey was built out of the joint family funds and the plaintiff being the good friend, he received friendly loans from him. The suit was also contested by the other defendants by filing written statement and pleading therein that co-ownership right is vested with them and they were not bound by the deed between the plaintiff and defendant No. 1. It was also pleaded that the contesting defendant has filed suit for declaration and other reliefs in respect of the same property claiming co-ownership right. The controversy in regard to the question of title reached the Supreme Court and the Supreme Court held that all the issues will have to be simultaneously decided and after the evidence is led, the Small Causes Court may decide as to whether there is any connectivity with the pending civil suit. The Supreme Court decided the matter on 20.8.2007. On 4.9.2000, an application for substitution on account of death of Smt. Indra Devi, one of the defendants who died leaving behind her sons, who are already on record, was moved. The substitution was claimed in respect of the sons only and not in respect of the daughters. Objection was filed to the substitution application but the same was allowed on 4.9.2009. Learned Trial Court rejected the application submitted by the revisionist seeking for review of the earlier orders vide order dated 1.2.2010. Hence this revision. Submission of learned Counsel for the revisionist is that the daughters, who are also heirs, are liable to be impleaded as the property was purchased out of the joint family funds, therefore, their substitution application has wrongly been rejected and the said orders are liable to be set aside. It has also been submitted that after the death of Smt. Indra Devi, her legal heirs are required to be brought on record. Smt. Indra Devi expired on 9.6.2000 leaving behind Sanjai Jain, Chandra Bhushan and Kul Bhushan along with three daughters namely, Smt. Kaushal Agrawal, Smt. Kusum Jain and Smt. Sarika Goel. Since the three sons were already on record, the necessity arose for substituting the three daughters as well, who became the co-landlords by virtue of their being heirs and therefore, they were liable to be substituted.

(2.) Learned Counsel for the respondents, on the other hand, has submitted that in accordance with the provisions of section 3(a)(1) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act No. 13 of 1972) (for short "the Act"), in a residential building, only those heirs are liable to be substituted, who are residing in the building along with the tenant at the time of death and since the daughters are married daughters and had never been residing along with the tenant but in fact they are residing along with their husbands at their in-laws place (in their Sasural), therefore, the review application has rightly been rejected. He has placed reliance upon the judgments rendered by this Court in the case of Dr. Ram Narain Bagley v. District Judge, Saharanpur and others, 1997 29 AllLR 471 and Abdul Raheem v. Rent Control and Eviction Officer/Addl. City Magistrate, Kanpur and others, 2001 43 AllLR 145.

(3.) I have heard learned Counsel for the parties and gone through the record.