Judgment

SHARMA, JJ.

( 1 ) SPECIAL leave is allowed in both the cases. Since they involve decision of some common questions of law they are being disposed of together by this judgment.

( 2 ) THE appellant Surayya Begum in the first case claims herself as one of the nine legal representatives of Khalil Raza, the original tenant of the premises in question, and is objecting to the execution of the decree of eviction obtained by the landlord-respondent I against respondents 2 to 9 who are sons, daughters and wife of Khalil Raza. Her case is that she is also a daughter of Khalil Raza, which is denied by respondent 1; and it is contended on her behalf that since she was not impleaded as a party to the eviction proceeding started by the respondent, her right in the tenancy which is an independent right, cannot be put to an end by permitting the decree obtained to be executed. She alleges collusion between them and the decree holder.

( 3 ) THE landlord-decree holder has denied the existence of another daughter of Khalil Raza by the name of Surayya Begum. It is averred that the appellant who is an objector has been set up by respondents 2 to 9 to defeat the decree against them which was contested for a decade up to the stage of Supreme court.

( 4 ) THE executing court heard the parties and held that in view of the controversy on questions of fact arising in the case the appellants objection can be finally decided only after the parties are allowed to lead evidence. A date was accordingly fixed for trial of the disputed issue. Respondent I challenged this order before the Delhi High court. The high court agreed with the decree holder-respondent holding that the appellant was bound by the decree and her objection was filed with the sole object of delaying the execution. Her application under S. 47 and 151 of Civil Procedure Code and S. 25 of the Delhi Rent Control Act was accordingly dismissed. The appellant has challenged the High courts decision in the present appeal.

( 5 ) IT has been contended on behalf of the appellant that she was as a much a tenant as her mother, brothers and sisters, and it is not sufficient for the landlord-respondent to have obtained an eviction decree against the others leaving out the appellant, as a result of which the decree is not binding on her. Heavily relying upon the decision in Textile Association (India) Bombay Unit v. Balmohan Gopal Kurup it was urged that the decree could not be kept alive even against the others and so the landlord cannot be put in possession of the premises at all.

( 6 ) IN the Civilarising out of S. L. P. No. 15021 of 1990 Shri shiv Kumar Sharma, who was a tenant in possession of the shop under dispute, died in 1982 leaving behind his widow, three sons and four daughters as his heirs and legal representatives. Thereafter, the respondent-landlord commenced an eviction proceeding in 1985, out of which the present matter arises, and impleaded only the wife and the sons of the deceased. Two of the four daughters were married and the remaining two daughters, appellants in the present appeal, were staying in the house but not joined as parties. The suit was contested by the mother and the brothers of the appellant but, ultimately a decree for eviction was passed. In execution, the unmarried daughters filed an objection inter alia contending that they have independent title in the tenancy and the decree obtained against the other members of the family would not bind them. Reliance has been placed upon the decision in the aforementioned Textile Association case read with S. 19 (b) of the hindu Succession Act.

( 7 ) THE learned advocates representing the decree holders in these two appeals have argued that when the tenancy rights devolve on the heirs of a tenant on his death, the incidence of tenancy remains the same as earlier enjoyed by the original tenant and it is a single tenancy which devolves on them. There is no division of the premises or of the ent payable, and the position as b