MOHD. QADEER Vs. MUNSIF NORTH LUCKNOW AND OTHERS

JUDGEMENT

(1.) THE petitioner claiming to be owner of the house in suit, has filed the present petition under Article 226 of the Constitution, to quash the proceedings in Suit No. 316 of 1986 filed by opposite parties No. 2 to 4 in which petitioner, opposite party No. 6 Mijjan and opposite party No. 5 Smt. Sarwar Jahan are defendants 1, 2 and 3. Apart from the prayer for quashing the proceedings, it is also prayed that a writ of mandamus be issued against the Munsif North, Lucknow, opposite party No. 1, commanding him to execute decree for ejectment and arrears of rent passed against opposite party No. 6 Mijjan. The petitioner's case is this: Taqaiya Begum was owner of the house in question viz. house No. 150/16 Mohalla Gwynneganj, Lucknow and opposite party No. 6 Mijjan was her tenant in the said house. She sold the house to Mujawar Hussain, who in his turn sold it to Radhey Lal. Radhey Lal filed suit against opposite party No. 6 for recovery of arrears of rent and possession. The suit was decreed ex -parte on 8th April, 1978. Application for restoration filed by opposite party No. 6 was rejected. Against rejection of this application revision was filed by opposite party No. 6, which was also rejected. Opposite party No. 6 thereafter filed writ petition No. 3015 of 1979 in this Court. Meanwhile there were successive transfers of the property in suit. Radhey Lal transferred it to Mohammad Yunus and Mohammad Yunus. transferred to Mohammad Khaliq and Mohammad Khaliq transferred it to the petitioner. Petitioner having become owner of the house made an application for impleadment in the writ petition which was allowed. The writ petition was dismissed on 5th September, 1986. Thereafter the petitioner started proceedings to execute the ex -parte decree passed against Sri Mijjan. On this step being taken by the petitioner, opposite parties No. 2 to 4 filed suit No. 316 of 1986 in the Court of Munsif North, Lucknow alleging therein that their father Nanhey Mirza was the original tenant of the house in suit and on his death in the year 1963, tenancy rights were inherited by them and their sister Sarwar Jahan, opposite party No. 5 and their brother Mijjan opposite party No. 6. On this basis it was pleaded that they were co -tenants along with opposites parties 5 and 6 and no notice of termination had been served upon them and opposite party No. 5 and they were not impleaded in the suit in which decree for eviction and arrears of rent was passed and the said decree was, therefore, not binding upon them. It was asserted that Mijjan paid rent of the house in question on behalf of the plaintiffs also. It was further asserted that even after their marriage they continued to live in the house in question as their husbands also started living in the said house. The decree passed against Mijjan was described as collusive.

(2.) IN the aforesaid suit, opposite parties 2 to 4 made an application under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure to restrain the defendants, their agents and servants, assignees, associates and representatives from dispossessing or ejecting the plaintiffs from the house in question till the disposal of the suit.

(3.) THE trial court by its ordered dated 13th October, 1986 granted injunction prayed for by the plaintiffs, observing that prima facie the plaintiffs were co -tenants of the house in question and no notice of termination of tenancy had been served upon them and they were not impleaded in the suit in which decree for ejectment was passed. Prima facie the plaintiffs have been found to be residing in the house in question.