ARTI DIXIT Vs. SUSHIL KUMAR MISHRA

JUDGEMENT

(1.) Heard Sri M.D. Singh Shekhar, learned Senior Counsel assisted by Sri Rajesh Mishra and Abhishek Dixit, learned counsels for the petitioners and Sri Atul Dayal, learned Senior counsel assisted by Sri Anand Kumar Srivastava, learned counsels for the respondent no. 1 and Dr. Shiv Bahadur Singh, learned counsel for respondent nos. 2/1, 2/2, 2/3, 2/4 and respondent no. 3.

(2.) This petition has been filed under Article 227 of the Constitution of India praying for setting aside the order dated 01.08.2017 passed by First Additional District Judge, Kanpur Nagar, in Revision No. 82 of 2016 filed by the respondent; setting aside the order dated 11.02.2019 passed by Judge Small Causes Court, Kanpur Nagar; setting aside the order dated 26.02.2021 passed by First Additional District Judge, Kanpur Nagar in Revision No. 34 of 2019 and the order dated 09.03.2021 passed by Fourth Additional District Judge, Kanpur Nagar in Execution Case No. 01 of 2013.

(3.) Plaintiff-respondent no. 1, Dr. Sushil Kumar Mishra, instituted SCC Suit No. 27 of 2012 before the District Judge / Judge Small Causes Court, Kanpur Nagar, against the defendants-petitioners praying for a decree of ejectment and recovery of arrears of rent taxes, damages, etc., on the ground that the defendant nos. 1 to 3, were the tenants of House No. 120/551, Shivaji Nagar, Kanpur Nagar and the plaintiffs are the co-owners in possession of the same. Defendant nos. 4 and 5 are the real brothers of the plaintiff and are proforma parties. The husband of the defendant no. 1 and father of defendant nos. 2 and 3, Late Baldev Prasad Dixit, was tenant of the first floor of the aforesaid house in three rooms, one kitchen, latrine-bathroom and store at the rent of Rs. 1,200/- per month along with tax. The tenancy started from first day of the month and ended on the last date of the same. After the death of Baldev Prasad Dixit, defendant nos. 1, 2 and 3, succeeded to his tenancy. The aforesaid house was owned by the mother of the plaintiff and after her death first floor of the same came in the share of the plaintiff no. 1. The defendant nos. 1, 2 and 3 stopped the payment of rent and taxes from 01.09.2005 and made temporary construction in the open verandah and made a new latrine in front of the stairs. They also occupied the "du chhati" adjacent to the stairs. A legal notice dated 08/09.12.2011 was sent by the counsel for the plaintiff to the defendant nos. 1 to 3 which was served on them. Even after the lapse of one month's time given in the notice neither the rent was paid nor possession of the property was given. Hence, the suit was instituted. The defendant nos. 1 to 3 did not appeared in it and the suit was directed to proceed ex-parte by the order dated 27.07.2012.