TRIVENI GIRI Vs. IV ADDL DISTRICT JUDGE BULANDSHAHR

JUDGEMENT

(1.) SANJAY Misra, J. Heard Sri R. B. Singhal, learned Counsel for the petitioners and Sri B. D. Madhyan, learned Senior Advocate assisted by Sri M. M. Tripathi, learned Counsel for the contesting respondents.

(2.) THIS writ petition is directed against the judgment and order dated 10-9-1985 passed in Revision No. 221 of 19 80 by the Court of IVth Additional District Judge Bulandshahr. The facts giving rise to the instant petition are that predecessor in interest of the petitioners being landlord of the building wherein shop in dispute is situated sought permission under Section 3 of U. P. Act No. 3 of 1947 from the District Magistrate to sue the tenants for eviction. The shop it was alleged was required by the landlord. The said application was allowed by the Sub-divisional Magistrate by an order dated 24-6-1971. Predecessor in interest of the respondent tenant-filed a revision against the aforesaid order and the said revision was dismissed on 17-9-1971 by the Commissioner Meerut Division Meerut. Armed with the permission granted to the Predecessor in interest of the petitioners, they filed a suit No. 554 of 1971 for eviction of the tenant. The said suit was decreed on 11-2-1980. During the pendency of these proceedings the original tenant namely Radhey Lal had died and was substituted by his son Madan Lal who also died and subsequently the heirs of Madan Lal were brought on record. Against the decree passed in Suit No. 554 of 1971 a revision No. 33 of 1980 was filed by only one of the heir of Madan Lal, namely Rakesh Kumar. His other heirs including his widow Smt. Vidyawati did not file any revision. The said revision was dismissed on 22- 9-1980, against which a writ petition No. 8447 of 1980 was filed by Rakesh Kumar which too was summarily dismissed by this Court vide order dated 22-12-1980. The proceedings for eviction of the tenants thus attained finality and execution was filed by the petitioners for eviction of the tenants on the basis of the aforesaid decree. Present respondents No. 2 and 3 namely Smt. Guddoo and Naresh Kumar filed their objection under Section 47 of the Civil Procedure Code which was registered as Miscellaneous Execution Case No. 127 of 1980. The objection of the respondents was rejected by the Court of Munsif vide order dated 8-12- 1980. Consequently the respondents filed Revision No. 221 of 1980 which has been allowed by the impugned order dated 10-9-1985. The petitioners who are landlords have challenged the aforesaid order.

(3.) IN the present case it is quite apparent from the order of the Revisional Court that notices of the suit were served upon the parties including the heirs of Madan Lal by publication. It is not a case where notices were not served. The only ground upon which the revisional Court has allowed the objection of the respondents is that a guardian was not appointed for the minors (respondents No. 2 and 3) therefore, the said respondents remained unheard and the decree passed against them cannot be executed. The aforesaid view taken by the revisional Court is erroneous according to this Court. IN a proceeding under the U. P. Act No. 13 of 1972, rights of the co-tenants are not distinguishable. On the death of the original tenant his heirs do not become tenants in common or independent tenants on their own separate rights. The heirs became co-tenants and the tenancy remains single. It is not split into as many heirs as the original tenant had left behind. Nor the premises under tenancy can be said to have been split in between the various heirs. IN the present case deceased Madan Lal had inherited the tenancy from Radhy Lal and Madan Lal's heirs were all brought on record and would be co-tenants in case they were normally residing with the tenant in the building at the time of the death of the tenant. Therefore, the respondent Nos. 2 and 3 being the son and daughter of Madan Lal would be co-tenants with the other heirs of Madan Lal or with those heirs who were normally residing in the building with Madan Lal at the time of his death. The rights of tenancy of such of the heirs was not independent of each other. They did not have their own individual independent right of tenancy to the exclusion of the other heirs who were co-tenants. The tenancy remained single. Since the elder heir of Madan Lal namely Rakesh Kumar (respondent No. 4 herein) had contested the proceedings on the strength of his status as a co-tenant it cannot be held that the rights of the respondents No. 2 and 3 (sister and brother of respondent No. 4) were separate and were required to be protected independently by appointing a guardian or next friend whose interest was not adverse to them.