BALKESH Vs. SHANTI DEVI

JUDGEMENT

(1.) THE facts giving rise to this petition under Section 15 (5) of the East Punjab urban Rent Restriction Act, 1949, (hereinafter referred to as the Act) are these. The petitioners own a building situated within the municipal limits of Ludhiana City which was in the occupation of Hira Nand as a tenant. On an application made under Section 13 of the Act by them the Controller ordered eviction of Hira Nand on the 17th of February, 1967. Against the order of the Controller Hira Nand instituted an appeal before the hearing of which he presented an application to the appellate Authority seeking permission to amend his written statement so as to introduce therein an additional plea to the effect that the proceedings for his ejectment were incompetent for the reason that no notice under Section 106 of the Transfer of Property Act had been served on him. That application was dismissed and Hira Nand came up in revision to this Court against the dismissal thereof. Before the matter was heard on the revisional side Hira Nand died and the present respondents were brought on the record as his legal representatives. Thereafter their petition for revision of the order of the Appellate Authority refusing the amendment of the written statement was dismissed by Mehar Singh c. J. , on the 17th of April, 1970 with a finding that ever since 1947 the tenancy held by Hira Nand was not a contractual but a statutory tenancy to which the provision of section 106 of the Transfer of Property Act had no application. The proceedings in the appeal were then continued before the Appellate Authority who overruled an objection taken by the petitioners that the appeal had abated in as much as the right to appeal had not survived and no legal representatives of Hira nand could be substituted in his place. Aggrieved by the order of the Appellate authority allowing the respondents to be substituted as appellants in place of Hira Nand the petitioners have filed the present petition.

(2.) THE case of the petitioners appears to be unassailable. The decision given by mehar Singh, C. J. , on the 17th of April, 1970 is binding on the parties so that the tenancy in dispute must be held to be a statutory tenancy. And if that be so, the heirs of Hira Nand cannot succeed to the tenancy which in its very nature is not heritable but dies with the tenant. The tenancy having come to an end once for all with Hira Nand's death, the building in dispute must revert to the landlord because no person such as may have a right to contest the ejectment order by the controller is now alive; and merely because the respondents are heirs to the estate of Hira Nand, they cannot claim to be substituted for him in the appeal.

(3.) IN coming to a contrary conclusion the learned Appellate Authority relied upon the following observations of Edge, C. J. , in Mohammed Husain v. Khushalo (1887)ILR 9 All 131, cited with approval in Gopal Ganesh Abhyankar v. Ramachandra sadashiv, (1902) ILR 26 Bom 597:-