Tenancy under Rent Control Act devolves firstly to surviving spouse with personal right not further inheritable; unauthorized construction on tenanted premises by non-successors demolishable; rights determined at suit institution despite acquisition/de-notification or subsequent sales.

JUDGMENT :

VIVEK SINGH THAKUR, J.

1. This Regular Second Appeal has been preferred against judgment and decree dated 28.11.2005, passed by Additional District Judge, Fast Track Court, Shimla, Himachal Pradesh, in Civil Appeal No. 143-S/13 of 04/2000, titled Smt. Prabha Bhagra & others v. Smt. Jawala Devi & others, whereby judgment and decree dated 26.11.1999, passed by Sub Judge First Class (II), Shimla, in Suit No. 34/1 of 97/91, titled Smt. Prabha Bhagra & others v. Smt. Jawala Devi & others, has been reversed and the suit filed by the plaintiffs has been decreed for mandatory injunction, directing the defendants to demolish two storeys raised by them on the part of tenanted premises, situate in Ayercliff Estate Shimla-3.

2. Respondents No.1 to 3, in present appeal, are plaintiffs; respondent No.9 Rajesh Kumar Bhagra was co- owner with the plaintiffs and was arrayed as proforma-defendant No.12 in the Civil Suit, who did not contest the proceedings either way at any point of time and was proceeded ex-parte; Appellant No.1 Jawala Devi wife of Dalip Chand Goel, who was original tenant in the suit premises, is defendant No.1; Appellants No.2 to 9 are defendants No.3 and 5 to 11; Defendant No.4 Bhagwan Dass Goel was deleted during pendency of appeal before Additional District Judge vide order dated 22.5.2001; Defendant No.2 Amrit Lal Goel son of Dalip Chand Goel was substituted through his Legal Heirs, who are respondents No.4 to 8 in present appeal are defendants No.2-A to 2-E respectively.

3. For convenience, parties shall be referred as plaintiffs and defendants, as per their status in the Civil Suit, however, Rajesh Kumar Bhagra shall be referred as co-owner defendant.

4. Case of the plaintiffs, in nutshell, is that Dalip Chand Goel was tenant of portion of vacant land/property purchased by Kulbhushan Bhagra (predecessor of plaintiffs) and Rajesh Kumar Bhagra, both sons of Kishori Lal Bhagra from one Anil Kumar Goel son of Hans Raj. Property in reference, initially, was owned by one Dr. Kedar Nath, who sold it to M/s Tulsi Ram Hans Raj (HUF), vide Sale Deed dated 12.12.1949. In partition of HUF, M/s Tulsi Ram Hans Raj, vide Partition Deed dated 28.3.1977 (Ex. PW-5/A), property in reference fell in share of Anil Kumar Goel, who sold it to Kulbhushan Bhagra and Rajesh Kumar Goel, vide Sale Deed Ex. PW-5/D dated 17.10.1979.

5. Further that, there was a garage on the land, which was partitioned in two portions, one portion was lying vacant and in the other portion Atta Chakki was installed and the said portion alongwith Atta Chakki was on lease with Dalip Chand Aggarwal (Dalip Chand Goel), Proprietor of M/s Amrit Lal Mohan Lal, on monthly rent of Rs.200/-.

6. It is further case of the plaintiffs that after death of Dalip Chand Aggarwal (Dalip Chand Goel), whose survivor wife defendant No.1 Jawala Devi inherited the tenancy and rest of the defendants, except co-owner defendant Rajesh Kumar, who are defendants No.2 to 11, had no right, title or interest in their individual capacity to c