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2020 Supreme(All) 509
IN THE HIGH COURT OF ALLAHABAD
SARAL SRIVASTAVA, J.
Smt. Geeta Devi – Petitioner
Versus
Om Prakash and Others – Respondents
Matters Under Article 227 No. 9646 of 2019
Decided On : 08-06-2020
Advocate Appeared:
For the Petitioners: Vineet Kumar Singh, H.N. Singh.
For the Respondent: Ayush Khanna.
Point of Law:
The consent of other co-owners is assumed as taken unless it is shown that the other co-owners were not agreeable to eject the tenant and the suit was filed in spite of their disagreement. In the present case, the suit was filed by both the co-owners. One of the co-owners cannot withdraw his consent midway the suit so as to prejudice the other co-owner. The suit once filed, the rights of the parties stand crystallised on the date of the suit and the entitlement of the co-owners to seek ejectment must be adjudged by reference to the date of institution of the suit; the only exception being when by virtue of a subsequent event the entitlement of the body of co-owners to eject the tenant comes to an end by act of parties or by operation of law.
Headnote:
Transfer of Property Act – Sections 44, 54, 55, 111 – Constitution of India – Article 227 – Code of Civil Procedure, 1908 – Section 47 – Payment of Rent Disputed – Execution orders – Petitioner through present petition has assailed order passed by Judge, Small Causes Court, in Miscellaneous Case arising out of Execution Case rejecting petitioner's application under Section 47 of C.P.C. and order passed by Sessions Judge, Court No. 1, in Civil Revision preferred by petitioner against order – Held, Petitioner admits that she is not tenant of disputed premises and has purchased 1/3rd share of Sri. Ram and not entire ownership interest in disputed premises, therefore, twin conditions of applicability of doctrine of merger of tenancy are lacking – Court finds substance in argument of respondent that doctrine of merger of tenancy is not attracted in present case – Court has held possession of petitioner over disputed premises is illegal, therefore, submission of counsel for petitioner that petitioner is ready to part with 2/3rd share of disputed premises and handover same to respondent nos. 1 and 2 is devoid of merit – Writ Petition Dismissed (Paras 37, 38, 39)
Facts of the Case:
Premises bearing Municipal No. 599 (Old) (New No. 1008) situated in Mutthiganj, Allahabad (hereinafter referred to as ‘disputed premises’) was owned by Smt. Chameli Devi and Om Prakash (respondent no. 1), Rajendra Prasad (respondent no. 2) and Sri. Ram (respondent no. 3) grandsons of Smt. Chameli Devi. Respondent nos. 1 to 3 claimed the ownership of disputed premises on the basis of Will dated 28.12.1976 executed by Smt. Chameli Devi who died on 30.07.1985.
Finding of the Court:
Petitioner admits that she is not tenant of disputed premises and has purchased 1/3rd share of Sri. Ram and not entire ownership interest in disputed premises, therefore, twin conditions of applicability of doctrine of merger of tenancy are lacking – Court finds substance in argument of respondent that doctrine of merger of tenancy is not attracted in present case – Court has held possession of petitioner over disputed premises is illegal, therefore, submission of counsel for petitioner that petitioner is ready to part with 2/3rd share of disputed premises and handover same to respondent nos. 1 and 2 is devoid of merit.
Result: Writ Petition Dismissed
JUDGMENT :
SARAL SRIVASTAVA, J.
1. Heard Sri. H.N. Singh, Senior Advocate assisted by Sri. Vineet Kumar Singh, learned counsel for the petitioner and Sri. Atul Dayal, Senior Advocate assisted by Sri. Ayush Khanna, learned counsel for the respondents.
2. The petitioner through present petition has assailed the order dated 30.09.2019 passed by Judge, Small Causes Court, Allahabad in Miscellaneous Case No. 812 of 2017 arising out of Execution Case No. 6 of 2017 rejecting the petitioner's application under Section 47 of C.P.C. and order dated 27.11.2019 passed by the Sessions Judge, Court No. 1, Allahabad in Civil Revision No. Nil of 2019 preferred by the petitioner against the order dated 30.09.2019.
3. The facts giving rise to the present petition are that premises bearing Municipal No. 599 (Old) (New No. 1008) situated in Mutthiganj, Allahabad (hereinafter referred to as ‘disputed premises’) was owned by Smt. Chameli Devi and Om Prakash (respondent no. 1), Rajendra Prasad (respondent no. 2) and Sri. Ram (respondent no. 3) grandsons of Smt. Chameli Devi. Respondent nos. 1 to 3 claimed the ownership of disputed premises on the basis of Will dated 28.12.1976 executed by Smt. Chameli Devi who died on 30.07.1985.
4. The disputed premises was let out to one Mishri Lal in the year 1968 on rent of Rs. 96/- per month. The respondent nos. 1 to 3 instituted a Suit No. 252 of 1989 for eviction of Mishri Lal from the disputed premises on the ground of default of payment of rent and subletting the disputed premise to Moti Chandra.
5. The suit was contested by Mishri Lal by filing written statement contending, inter-alia, that there was no default in payment of rent. He further denied the subletting of the disputed premises to Moti Chandra as according to him Moti Chandra was his nephew and partner in his business.
6. The suit was decreed by the judgment dated 08.08.1991 which was challenged by Mishri Lal in Civil Revision No. 145 of 1991. The District Judge, Allahabad by judgment and order dated 04.12.1991 allowed the revision on the ground that respondents (Plaintiff in suit) have failed to prove that they were exclusive owner and landlord of the disputed premises. The respondents preferred Writ Petition No. 11498 of 1992 before this Court challenging the order dated 04.12.1991 in Civil Revision No. 145 of 1991. The writ petition was allowed by this Court by judgment and order dated 2nd of August, 2006 and the matter was remanded back to the court below to decide the revision by the law.
7. It appears that respondent no. 3 during the pendency of the Writ Petition No. 11498 of 1992 transferred his 1/3rd share in the disputed premises to the petitioner Smt. Geeta Devi W/o Moti Chandra by sale-deed dated 25.02.2003.
8. It transpires from the record that after remand the petitioner filed an application for impleadment in Civil Revision No. 145 of 1991 which was allowed by the revision court by order dated 28.01.2008 and revision-applicant (Misri Lal) was directed to move an application to implead Smt. Geeta Devi as O.P. No. 4 in the case. It is not clear from the record as to whether Smt. Geeta Devi (petitioner) was impleaded as O.P. No. 4 by the tenant-Mishri Lal and whether Smt. Geeta Devi after having been impleaded as the party had contested the revision.
9. The revision court again allowed the Revision No. 145 of 1991 of tenant Mishri Lal by order dated 27.02.2010 and set aside the order of the trial court. The order of revision court dated 27.02.2010 came to be challenged by the respondent nos. 1 and 2 in Writ Appeal No. 26732 of 2010 which was dismissed by this Court by judgment and order dated 25.02.2014.
10. The respondent nos. 1 and 2 challenged the judgment of this Court dated 25.02.2014 before the Apex Court in Civil Appeal No. 4309 of 2017. The record reveals that during the pendency of Civil Appeal No. 4309 of 2017 Misri Lal, original tenant, had died and his wife Smt. Savitri Devi was substituted as his legal heir. The Apex Court by judgmen
