In cases of tenancy rights inherited by legal heirs, only the heir in occupation of the premises is a necessary party in eviction proceedings, and others are deemed to have surrendered their tenancy rights.

JUDGMENT

Ramendra Jain, J. - Through this revision under Article 227 of the Constitution of India, petitioners have laid challenge to order dated 04.12.2017 (Annexure P-1) of the Rent Controller, dismissing their application under Order 1 Rule 10 of the Code of Civil Procedure to implead them as party.

2. Briefly, father of respondent No. 1, namely, Ram Kanwar Aggarwal, rented out demised shop to deceased father of the petitioners, namely, Ram Mehar, who died on 23.10.2007 leaving behind four daughters and two sons. In the year 2013, respondent No. 1-landlord filed eviction petition under Section 13 of the Haryana Urban (Control of Rent and Eviction) Act, 1973 against respondent No. 2 being successor of original tenant Ram Mehar and in exclusive possession of the demised shop, who after notice filed written statement on 09.05.2014.

3. From the pleadings of the parties, Rent Controller framed necessary issues.

4. Respondent No. 1 concluded his evidence in affirmative. While it was turn of respondent No. 2 to lead evidence in affirmative, petitioners in the year 2017, after four years of the filing of eviction petition against their brother, moved application under Order 1 Rule 10 CPC to implead them as party, which on contest by respondent No. 1-landlord has been dismissed vide impugned order dated 04.12.2017 (Annexure P-1).

5. Learned counsel for the petitioners relying upon judgment of the Hon'ble Supreme Court in Gian Devi Anand vs. Jeevan Kumar and others, (1985) 2 Supreme Court Cases 683 inter alia contends that the Rent Controller failed to appreciate that petitioners being legal heirs of original tenant Ram Mehar were to be impleaded as necessary party in the eviction petition filed by respondent No. 1, because any decision of the Rent Controller in their absence would affect their tenancy rights inherited by them from their father. Rent Controller failed to appreciate that respondent No. 1-landlord took contradictory stand in his eviction petition and reply to the application under Order 1 Rule 10 CPC inasmuch as in his eviction petition he pleaded that deceased Ram Mehar was inducted as tenant, but in reply, he took contradictory stand that respondent No. 2 was inducted as tenant and not Ram Mehar.

6. On the other hand, learned counsel for respondent No. 2 - landlord, relying upon judgment of this Court in Om Parkash vs. Ram Kumar and others, 2011(4) R.C.R. (Civil) 455 and refuting above submissions contends that petitioners were not necessary party, because they were/are not in possession of the demised shop after the death of original tenant Ram Mehar.

7. Having given thoughtful consideration to the rival submissions, this Court finds the instant revision completely devoid of any merit for the reasons to follow.

8. With due respect, this Court has no dispute with the proposition of law laid down in Gian Devi Anand's case (supra) that upon death of a tenant after expiry of contractual tenancy, his legal heirs inherit the tenancy rights. However, the Hon'ble Supreme Court in Pushpa Ram vs. Bhagwanti Devi and another, 1994 (2) R.C.R.(Rent) 298 has held that in case, a tenant dies leaving behind a number of heirs, the heir continuing in occupation of the demised premises and carrying on business shall only be a necessary party and it can be inferred that other heirs had surrendered their tenancy rights. They cannot challenge the decree at the time of execution against the person in possession. A Co-ordinate Bench of this Court in Om Parkash's case (supra) has also held that in case, a tenant dies leaving behind two sons, out of whom one came into possession of the demised premises and paying rent to the landlord, eviction petition is maintainable against him only, without impleading other son, not in possession, he being not necessary party. Order of eviction can be passed against the person in possession.

9. The petitioners in their application under Order 1 Rule 10 CPC have mentioned their address of Village-Khijuriwas, Tehsil