IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE 29thDAY OF MAY, 2002

BEFORE

THE HON'BLE MRS. JUSTICE MANJULA CHELLUR

HRRP.NO. $15/2002$

BETWEEN:

Sri.M.Venkatesh Achar, S/o late Sanjeeva Achar, Aged 42 years, Residing at D.No.6-16-616, Mannagudda, Mangalore, District D.K.

..Petitioner

(Bv Sri.G.Balakrishna Shastry, Adv.)

AND:

$\mathcal{L}$

1. Mrs. Violet Sequeira, Aged 49 years,

2. Mrs. Saritha Sequeira, 28 years,

3. Miss. Senitha Sequeira, 26 years,

No.1 is the widow and $2$ and $3$ are children of late Victor Sequeira $r/o$ Mannagudda, Mangalore, Dist: D.K.

..Respondents

(By Sri.Sanath Kumar Shetty for C/Respt.)

$\sim$

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This HRRP is filed under Section 115 CPC dt.4.12.2001 passed in ${\tt order}$ against the RRP.No.98/01 on the file of the dist. Judge, D.K., Mangalore, dismissing the revision petition and confirming the order dt.3.7.2001 passed on I.A.No.II in Ex.Case No.88/99 on the file of the Prl.Civil Judge (Jr.Dn.,) Mangalore, dismissing IA No.II filed under Order 21 Rule 97 CPC to hold that the revision petition is not bound by the eviction decree.

This HRRP having been heard and reserved for orders this day, the Court made the following:

ORDER

This revision petition is filed challenging the orders passed in Execution Case No.88/99 on I.A.II pertaining to Rent Revision Petition No.98/2001.

2. In brief, the facts that led to the filing of this revision petition are as under:

Originally, HRC.No.74/82 was filed by one Victor Sequeira against one Yogesh Achar. The said petition was allowed on 5.8.86. Aggrieved by the said order, Rent Revision Petition No.164/92 was filed by the tenant Yogesh Achar against the landlord. The said petition came to be dismissed.

3. During the pendency of said petition, I.A.4 was filed under Order 1 Rule 10 C.P.C to implead one Venkatesh Achar as the supplement respondent in the H.R.C Petition. But the said application was withdrawn.

4. Meanwhile, O.S.1007/93 was filed by the present revision petitioner, who is no other than brother of Mr. Yogesh Achar the against the landlord. The said suit was also dismissed and the regular appeal is pending.

Challenging the orders in RRP.164/92, $5.$ HRRP.1472/96 was filed before this Court, which was also dismissed.

6. When the eviction order became absolute and conclusive an execution petition came to be filed in Ex.No.88/99 and an application under 21 Rule 97 also came to be filed by Order Venkatesh Achar-the present revision petitioner as third party contending that one late Sanjeeva Achar, his father was the original tenant under $\verb|the|$ Sequeira. After his death, Victor said

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tenancy devolved on the children of Sanjeeva Achar i.e., Yogesh Achar and Venkatesh Achar-the present revision petitioner. However, Yogesh Achar was paying the rents.

7. It is further contended that the decree in H.R.C. petition obtained against Yogesh Achar do not bind him as he was not a party to the said proceedings. According to him, as L.R of said Sanjeeva Achary he had independent right and interest over the petition schedule property. Therefore, he cannot be evicted from the petition schedule property.

8. This was contested by the decree holder contending that the third party petitioner has estopped from raising the same contention and defence that was taken in 0.S.1007/93. He has no independent title to the tenancy. He is not claiming any right and the said Yogesh Acharjudgment debtor never represented the interest of the present revision petitioner or it was not their case that the relationship between them was

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not cordial as it was an application under Order 21 Rule 97.

9. Evidence was recorded on behalf of both sides and certain documents were also marked.

$10.$ During the pendency of the eviction proceedings, original landlord Victor Sequeira died and his L.Rs were brought on record.

The admitted fact before the executing $11.$ court are that after the death of original tenant Sanjeeva Ahcar his two sons Yogesha Achar and Venkatesh Achar and wife of original tenant were residing jointly in petition the schedule premises, and the said Yogesh Achar started living in his own house since 1995, thereby leaving the revision petitioner and along with his children in the petition schedule premises and therefore, he did not have any independent title or interest as tenant in respect of the petition schedule premises. There was also no evidence of division of tenancy rights between the brothers. Though the revision petitioner

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stated in his evidence that both himself and his brothers were paying the rents, having regard to the fact that he has specifically stated in his objection that his brother was paying rents to landlord, the court did not accept the the averments of the revision petitioner that he has independent tenancy right over the petition schedule property. The executing Court held that the decree obtained against the judgment debtor Yogesh Achar binds on the present revision petitioner. Aggrieved by the said order, Rent Revision Petition No.98/2001 was filed on the file of District Judge, Dakshina Kannada.

The learned Judge of the revisional $12.$ Court referring several decisions of this Court and also the Apex Court held that principle of representation of others interest was taken into consideration. The admission of the revision petitioner before the revisional court that was Mar after the death of their father his brother Yogesh Achar and himself were living together and his brother was paying the rents. The first court also took notice that revisional the

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revision petitioner was setting up an independent right as joint tenant, though his case was not that his brother did not represent him at the There was material to relevant point of time. show that the relationship was strained between the brothers. The ration card was in the name of judgment debtor-Yogesh Achar and the family of the present revision petitioner including the present revision petitioner were $\verb|shown|$ $\mathsf{as}$ the members depending on Yogesh Achar. If they were really living under the same roof, they ought to If really Yogesh Achar have two ration cards. had left the house, there was no necessity to have the ration card in the name of Yogesh Achar for ration $\circ f$ the present revision the petitioner. Only in the year 1998, the names of Yogesh Achar and his family members are deleted and not at the time when eviction order was made. Only just before filing the execution petition there seems to be deletion of these names till then, the contents of Ex.P.1-ration card would suggest that they were two brothers and were living jointly. The first revisional court has also taken into consideration the principle of

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representation of interest and has dismissed the revision petition.

13. Aggrieved by the said order the present revision petition is filed contending that the revision petitioner and his family are actually living in the petition schedule premises and the debtor-yogesh judgment Achar is living separately.

14. According to the revision petitioner, they inherited the tenancy rights as tenants in common and not as joint tenants. Therefore, the eviction order obtained against the elder brother is not binding on the younger brother. Section 19 of Hindu Succession Act will apply here. It was nobody's case that judgment debtor as $an$ elder brother stood in representative capacity or as a manager of joint family. Therefore, the revision petitioner has independent right in respect of tenancy right inherited from his father.

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15. The learned Counsel for the revision petitioner reiterating the averments $in$ $\verb|the|$ revision petition relied upon the following decisions.

16. AIR 1986 SC 1753 (in the case of one Commissioner of Wealth-tax, Kanur etc. $Vs.$ Chander Sen etc.). In the above decision, it is held as under:

"There was a partition of joint family business between father and his only son. Thereafter they continued $\tt business$ the in $\verb|the|$ name $of$ The son formed a partnership firm. joint family with his own sons. The father died and amount standing to the credit of the deceased father in the account of the firm devolved on his The wealth-tax authorities while son. assessing the wealth-tax in respect of the family of the $\mathbf{S}$ on i.e., the assessee, ${\tt included}$ the 🐀 amount in computing wealth.

Held, that the son inherited the property as an individual and not as karta of his own family. Hence it could not be included in computing the assessee's wealth. (1977) 108 ITR 417 1983 Tax LR 1370 (Gui), Overruled, (Andh Pra), AIR 1979 Mad 1 (FB) and 1983 Tax LR 559 (Madh Pra) Approved."

2. AIR 1987 SC 558 (in the case of Yudhister vs. Ashok Kumar.) Para-10 of the said decision reads as under:

Para-10:- This question has been considered by this Court in Commissioner of Wealth Tax, Kanpur V. Chander Sen, (1986) 3 SCC 567: (AIR 1986 $\mathsf{SC}$ $1753).$ where one $\mathsf{of}$ $u$ s (Sabyasachi Mukharji, J.) observed that under the Hindu Law, the moment a son is born, he gets a share in father's property $\quad\texttt{and}\quad$ $\verb|becomes|$ part $\quad\text{ of }\quad$ the coparcenary. His right accrues to him ${\tt death}$ $\quad\text{ of }\quad$ $\circ n$ the the father $\alpha$ r inheritance from the father but with the very fact of his birth. Normally, therefore, whenever the father gets a property from whatever source from the grandfather or from any other source, be it separate property or not, his son should have a share in that and it will become part of the joint Hindu family of his son and grandson and other members who from joint Hindu family with him. This Court observed that this position has been affected -bv Section 8 of the Hindu Succession Act 1956 and therefore, after the Act, when the son inherited the property in the situation contemplated by Section 8, he does not take it as Kar of his own undivided family by takes it in his individual capacity. At pages 577 to 578 (of SCC) at $P.1760$ of AIR of the report this Court dealt with the effect of Section 6 of the Hindu Succession Act 1956 and the Commentary made by Mulla, 15^th Edn. Pages 924-926 as well as Mayne's on Hindu Law 12^th edition Shri Banerji relied on pages 918-919. the said observations of Mayne $\quad\text{on}\quad$ 12^th Edn. at pages 918-'Hindu Law'. This court observed in the 919.

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aforesaid decision that $\quad \hbox{the} \quad$ views expressed by the Allahabad High Court, the Madhva the Madras High Court, Pradesh High Court and $\verb|the|$ Andhra be Pradesh High Court appeared to correct and was unable to accept the views of the Gujarat High Court. To the similar effect is the observation of learned author of Mayne's Hindu Law, $12^{th}$ Edn. Page 919. In that view of the matter it would be difficult to hold that property which devolved off $\overline{a}$ Hindu under Section 8 of the Hindu Succession Act, 1956 would be HUF in his hand vis-à-vis his own sons. $\mathop{\mathtt{If}}\nolimits$ that be the position then the property which devolved upon the father of the respondent in the instant case on the demise of his grandfather could not be said to be HUF property. If that is so, then the appellate authority was right in holding that the respondent was a licensee of his father in respect of the ancestral house."

3. AIR 1979 Orissa Page 60 (in the case of Kastura Sahuani Vs Das Seth and another.) In the said decision, it is held as under:

"The suit property was only a portion of Mitakshara Co-parcenary Lands of L. father and his son, L died after coming into force of Hindu Succession Act, 1956, leaving behind his widow (deft.2) son (deft.1) and daughters. Defendant 1 sold a small portion of the lands to the plaintiff by a registered sale deed but the widow deft, 2 having regained its possession through proceedings under S.145 Cr.P.C plaintiff brought a suit to the establish his title and for possession.

Held: (1) on the rules laid down in Ss.6,8,9 and 10 of the Act, only the undivided $\verb|interest|$ $\quad\text{or}\quad$ share $\quad \text{ of } \quad$ $\mathbf{T}_1$ devolved by $\verb+succession+$ on his $son.$ widow and daughters, if any. The undivided interest or share of the deceased co-parcener in a case of this nature has to be ascertained on the footing partition $\quad\text{ of }\quad$ a notional immediately before the death of the deceased. The persons who would be entitled to a share on the notional partition would $\quad\text{be}\quad$ ascertained according to the Hindu law of joint family and partition in force on the date of the death of the co-parcener, and their share has to be computed according to the $\verb|law|$ of partition applicable to the parties on the date of the death of the deceased. In the present case, if a partition had in fact taken place immediately before the death of L. he would have been entitled to $1/3^{rd}$ share in the said property, equal to that of deft. 1 and deft.2 and that distinct share only will devolve by succession on $L's$ son $(D.1)$ Widow $(D.2)$ and other heirs under the Act, if any. By the application of $S.19$ , such heirs of L succeed together only to the said $1/3^{rd}$ interest as tenants-in-common and not as joint tenants. AIR 1971 Andh Pra 363 (FB) and AIR 1975 Mad 51, Foll.

(iii) Though defendant No.1 was the Karta of the family he could not exercise the powers of a Karta in respect of that $1/3^{rd}$ share of deceased L as the heirs under the Act would succeed to that portion of the property as tenants-in-common and there was no coparcenary between the son and the female heirs of L. Therefore, in the facts of the case the sale of the suit land (which was only 2.16 acres of the entire 60 acres of lands) by him to the

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plaintiff could not be declared to be $\quad\text{or}\quad$ invalid merely because illegal defendant 1's distinct portion in that property has not been carved out by actual partition by metes and bounds. the plaintiff being had That $so,$ right, title and acquired ${\tt valid}$ interest in the suit property, but he could not obtain exclusive possession of the same at present as the entire property was still in joint possession of defendants 1 and 2. The plaintiff could recover possession of the suit property when defendant No.1'' distinct share in the entire property was carved out by partition or otherwise."

4. AIR 1971 Andhra Pradesh page 363 (in the case of P.G. Reddy Vs Golla Obulamma.) In the said decision, it is held as under:

"Thé devolution $\quad \text{ of } \quad$ interest $of$ mortgagee on his heirs being by way of succession under the rules of the Hindu Succession Act, all the heirs who got interest, whether as coparceners $\alpha$ r otherwise are tenants in common in relation to that interest and they as jointly $\quad \text{interested}$ in the heirs mortgage amount should have brought their suit jointly or, at any rate should necessarily have been included in the frame of the suit either $as$ plaintiffs or defendants. The suit without the inclusion of all of them is basically defective and $\quad\hbox{this}\quad$ defect cannot be cured out of time. The fact that the plaintiff is Kartha of the joint family property will not avail where the asset is not a joint family asset or cannot be treated as such or has ceased to be so by reason of the provisions of the Hindu Succession Act."

5. AIR 1975 Madras 51 (in the case $\quad\text{ of }\quad$ Veerashekara Varmarayar vs Amirthvalliammal and others.) In the said decision, it is held as under:

"The proviso to Section 6 deals not only with intestate succession, but also testamentary succession. Section 30 expressly enables a co-parcenary property testamentarily. In the event of a testamentary succession, from the very nature of the case, the legatees interest is crystallized and specified at the moment of the death of the testator. The legatee may be an utter stranger to the entire family. In that event, it cannot be contended that so long as the legatee has not filed a partition, the kartha $\quad\quad\texttt{is}\quad\quad$ $\quad\text{for}\quad$ $\verb"suit"$ entitled to deal with the deceased coparcener's interest in the co-parcenary propert, as if the $\texttt{same}$ remained undisposed of. Consequently, Section 6 has to be construed in such a way as to give effect to the object of the Legislature not only with regard to testamentary succession but also with regard to intestate succession.

The kartha will not be entitled to deal with the family propOerty so as to $\verb|deceased|$ $c$ oparcener's affect the interest."

6. AIR 1977 Kerala 132 (in the case of Parasuraman vs. Purushothaman & Co.) In the said decision, it is held as under:

"(A) Limitation Act (1963), Ss.18 and 19 -Acknowledgement of liability by co-owner - Effect on other co-owners. (Hindu Succession Act (1956), S.19).

${\tt controverted}$ It cannot $\quad\texttt{be}\quad$ or doubted that joint tenants or tenants in common under S.19 of the Hindu Succession Act as such have no implied authority in the absence of a contract to the contrary to act for all. A coowner, as such, has no authority to enlarge the period of limitation, as against the other co-owners, by any acknowledgement of liability or payment of interest or principal."

7. AIR 1990 SC page 2053. (in the case of Textile Association $(India)$ Bombay Unit, $Vs$ Balmohan Gopakl Kurup and another). Para-4 of the said decision reads as under:

"Para-4:- Mr. Lalit, counsel for the appellants argued that the exparte obtained against the $\verb|de|$ joint tenants was equally binding on the respondent, Reference was made in this context to the decisions of this Court in Kanji Manji V. the Trustees of the port of Bombay (1962) 3 Supp, SCR 461; (AIR 1963 SC 468) and H.C.Pandey V. G.c.Paul (1989) 3 SCC 77: (AIR 1989 SC $1470).$ Both the cases relate to the validity of the notice issued to one of

the joint tenants. It was held that the notice issued to one of them would We do not think that the be valid. principle stated in those cases on the facts obtained are relevant to the There is a finding in present case. this case that the respondent was as much a tenant as the mother and the other brother. That being the position $\quad\text{for}\quad$ $\quad\texttt{eviction}$ the exparte $\verb|de|$ obtained against his mother and brother without impleading him in that suit has to be set aside. It is not sufficient, as the courts below have said that the decree was not binding upon the respondent. That decree cannot be kept alive against two other tenants and possession of the premises could be exclusively given to the respondent. The respondent cannot be put $\quad\texttt{into}\quad$ exclusive possession of the premises since his mother and brother are also equally entitled to. It seems to us, decree $\quad\text{for}\quad$ therefore, the exparte eviction should be set aside and the petitioner should be impleaded as a party to that suit and it should proceed on merits."

8. AIR 1985 SC 1118 (in the case of Mohd. Azeem vs. District Judge, Aligarh and others.) In the said decision, it is held as under:

"It cannot be said that when one of the members of the family on death of original tenant builds a house or moves into a vacant premises (other tenanted than the premises in occupation), $\verb|there|$ is a deemed cessation of the tenancy and a deemed $\verb|the|$ $\verb|tenanted|$ vacancy occurs $\quad\textbf{of}\quad$ premises. Hence, where on the death of the tenant his widow 3 sons and a

daughter continued to live in the tenanted premises and the eldest son paid the rent, on construction of a house in the same city by the other son the tenancy cannot be deemed to have terminated in view of the provisions contained in S.12. Merely because one of the sons had built a house and moved into it that could not wipe out the interest of the window, other two sons, including the eldest and the daughter, if in their own right they were tenants by satisfying the requirements of the The words 'if the tenant definition. or any member of his family' obviously mean, in the facts of the case, the son who had constructed a house and the members of his family and do not relate to the widow, other two sons and the daughter of the deceased tenant. $\mathop{\rm If}\nolimits$ everyone's interest was to be wiped out, S.3 had to provide differently and instead of 'he shall be deemed to have ceased to occupy the building under his tenancy' as occurring in Sub-S $(3)$ reference would have been made to all When one of the sons the tenants. built a house and shifted into it, the tenancy of the eldest son and his other with their mother and brother along The terminate. sister did $\mathsf{not}$ continued to be tenants in their own right being covered by the definition 'tenant' and there is no deemed $of$ Decision of Allahabad High vacancy. Court Reversed. 1981 All rent Cas 305 (FB) overruled."

9. AIR 1989 SC page 1470 (in the case of H.C.Pandey Vs G.C.Paul.) In the said decision, it is held as under:

"Houses and Rents - Tenancy rights - Succession - Heirs succeed as joint tenants.

It is now well settled that on the death of the original tenant, subject to any provision to the contrary either negativing or limiting the succession, the tenancy rights devolve on the heirs of the deceased tenant. The incidents of the tenancy are the same as those enjoyed by the original tenant. It is a single tenancy, which devolves on the There is no division of the heirs. or of $\verb|the|$ rent payable premises is the position as therefor. That between the landlord and the heirs of the deceased tenant. In other words. the heirs succeed to the tenancy as Therefore, when on the <pre>joint tenants.</pre> death of the original tenant the: tenancy rights devolved upon the sons, daughters and wife of the original tenant and the notice terminating tenancy under S.106 was addressed to and served upon one of the sons of the original tenant who paid rent on behalf of all and acted on behalf of all the heirs of the original tenant, the notice to only one of the joint tenants could not be said to be insufficient."

$10.$ ILR 2001 Kar. Short Notes No.1, which reads as under:

"Karnataka Rent Control Act, 1961 3(d) and Karnataka section Rent Control Rules, 1961 - Rule 35 - Orders passed by the Court of Munsiff in the $\verb|de|$ for matter of $\verb+executing+$ $\mathsf{a}$ eviction were challenged by filing a $\verb|the|$ Revision before High Court, Maintainability of the Revisions was raised as any order passed while

deciding an Application under Order XXI Rule 98 of the Civil Procedure Code would be a "Decree" in view of Order XXI Rule 103 and hence only an Appeal lies and Section 50 of the Act is not applicable. These Revisions were referred to Division Bench - Held - As there $\verb|is|$ $\mathbf{a}$ specific Provision for filing Revision in the Act itself as $\quad\text{by}\quad$ against any Order passed Rent Control Courts contemplated under Section $3(d)$ $(i)$ to $(iii)$ , neither appeal nor revision under Section 115 of the Civil Procedure Code lies as against such orders."

16. As against this, the learned counsel for the respondents relied upon the following decisions.

17. 1968 (2) My.L.J. 255 (in the case of Meenakshamma Vs. Modur Rangamma.) In the said decision, it is held as under:

"The Court functioning for the purpose of Part V of the Mysore Rent Control Act, functions as a Civil Court and $\quad\quad\text{it}\quad\quad$ is open to such Court to exercise | jurisdiction $\quad\text{and}\quad$ all the powers conferred by the CPC. Hence an order of eviction can be executed by the Court under CPC. A.I.R 1954 Cal. 220 followed.

The Civil Court functioning under Part V of the Rent Control Act cannot be treated as $\mathsf{a}$ special tribunal functioning under a special enactment."

(in the case of Supreme 33 $2.$ 1998 $(2)$ V.Uthirapathi Vs. Ashrab Ali and Others). In the said decision, it is held as under:

"Held: If after the filing of an execution petition in time, the decree his legal and holder dies representatives do not come on record or the judgment debtor dies and his legal representatives are not brought on record, then there is no abatement, the position in the eye of law is that the execution petition remains pending on the file of the execution Court. If it remains pending and if no time limit prescribed to bring the legal is representatives on record in execution is open in case $\quad\text{ of }\quad$ proceedings, it death of the decree holder, for his legal representative to come on record at any time. The execution application cannot even be dismissed for default behind the back of the decree holder's representatives. In case $\quad\text{ of }\quad$ legal debtor, the the judgment death $\quad\text{ of }\quad$ decree holder could file an application to bring the legal representatives of the judgment debtor on record, at any Of course, in case of death of time. judgment-debtor, the Court can fix a reasonable time for the said purpose and if the decree holder does not file aforesaid for the application an dismiss the Court can the purpose, execution petition for default. But in any event the execution petition cannot Alternatively, be dismissed as abated. it is also open to the decree holder's legal representatives to file a fresh execution petition in case of death of the decree holder; or, in case of death decree debtor. the judgment $\quad\text{of}\quad$ $\verb|the|$ ${\tt can}$ execution $\quad \texttt{file} \quad$ fresh holder $\mathsf{a}$ legal the petition impleading $\verb|the|$ judgement $\quad\text{ of }\quad$ representatives

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debtor: $\verb+such+$ $\mathsf{a}$ fresh execution petition, if filed, is, in law, only a continuation of the pending execution petition- the one which was filed in time by the decree holder initially. This is the position under the Code of Civil Procedure."

$\overline{3}$ . $(1989)$ $\mathbf{3}$ $\mathsf{SCC}$ $77$ (in $\verb|the|$ case $\quad\text{ of }\quad$ H.C.Pandey Vs.G.C.Paul). In the said decision, it is held as under:

$"On$ the death $\quad \text{of} \quad \text{the} \quad$ original tenant, subject to any provision to the contrary either negativing or limiting the succession, the tenancy riahts devolve on the heirs of the deceased The incidence of the tenancy tenant. are the same as those enjoyed by the original tenant. It $\quad\quad\texttt{is}\quad\quad$ $\mathsf{a}^$ single tenancy, which devolves on the heirs. There is no division of the premises or of the rent payable therefore. The heirs succeed to the tenancy as joint tenants. In the present case, the respondent acted on behalf of the tenants, he paid rent on behalf of all and he accepted notice also on behalf $\quad\text{ of }\quad$ all. $In$ the circumstances, the notice served on the respondent was sufficient."

ILR 1995 Kar. $4.$ 1153 (in the case of Farhathunnissa Vs.Rahimunnissa). In the said decision, it is held as under:

"Married daughters $\quad \text{ of } \quad$ deceased non-residential tenant $\quad\text{ of }\quad$ premises filed suit for injunction restraining

execution of decree of Rent Control Court as affirmed in Revision, on the grounds decree is not binding on them, not having been impleaded as parties to HRC case, thev having original independent rights etc. Trial Court ${\tt concluded}$ $\verb|they|$ having that have independent rights as heirs of deceased tenant. ${\tt unaffected}$ $\quad\text{by}\quad$ decree, were entitled to injunction, in Appeal: $\mathcal{L}^{\mathcal{A}}$

rights the Held: The that plaintiffs are now seeking to agitate are rights that have relation to the law that can only flow from their $\qquad\texttt{been}\qquad$ the daughters $\quad\text{ of }\quad$ the having deceased tenant. What $\verb|is|$ wrongly construed as an independent status or an independent right is in fact wholly dependent one and something that owes its existence $\quad\text{entirely}\quad$ to the relationship with the original tenant. There again, $\quad\text{one}\quad$ ${\tt needs}$ to take cognizance of the fact that a right of title or ownership is very different to the limited protection that the law afford to a relative of a deceased tenant or one who was dependent on the tenant or residing with the tenant at the time of the tenant's death. It is only a very limited protection that derives and for good reason, Under these circumstances, that status $\circ$ f legal protection from eviction cannot be wrongly construed as an independent right or an independent status and taken to be on par with the situation that may arise in other proceedings. The significant fact remains that the two plaintiffs did not at any time put forward any independent claim with regard to the tenancy rights for several years. They did not agitate any such position while the proceeding was before the Rent Control Court or for that matter earlier when it was before this Court. Even in the present

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proceedings, there is no case made out that they were in possession of the premises at any time or that they were in any way connected with the business. The restricted plea that is canvassed being ${\small \texttt{that}}$ they were getting some income out of the business that was being carried on there. The point of time at which the suit has been filed speaks volumes and the lack of material produced before the trial Court is also of considerable consequence... This is a case in which long after the death of the original tenant and long after the sole legal heir who claimed to be in possession and using the premises has lost the litigation upto the High Court and has undertaken to restore possession, that two $other$ family members who were never on the scene for the last more then one decade approached the Civil Court which admittedly cannot exercise jurisdiction in respect of H.R.c. Cases, seek an injunction simpliciter whereby, $\overline{a}$ decree of a competent Court is sought to. $\quad\texttt{be}\quad$ stopped from being executed. This would almost constitute $\overline{A}$ perversion of law and misuse of Court machinery for the reason that long after a proceeding was concluded, if this procedure is to be sanctioned, it would be open to some other family member to re-commence the entire litigation and taking advantage of the arrears and delays prevalent in the Courts, continue $\verb"in=$ occupation and possession for decades together. This is not the scheme of the law and when such a situation is pointed out to the High Court, it is very much incumbent and in $\verb|the|$ public interest that corrective action be taken."

5. AIR 1995 SCC 676 (in the case of Harish Tandon-Addl.Magistrate, Allahabad and Others). At para-19 of the said decision, it is held as under:

"Para-19:- So far as sub-sec $(3)$ of S.12 is considered, it says that in case of residential building, if $\quad\hbox{the}\quad$ any member of his family tenant $\overline{or}$ otherwise acquires, in $\mathbf{A}$ builds $\quad\text{or}\quad$ gets vacated $\overline{a}$ $\overline{or}$ state vacant the same city, $\verb"in"$ residential municipality, notified area or town in which the building under area, tenancy is situate, the tenant "shall be deemed to have ceased to occupy the building under his tenancy". It was submitted that if full effect is given to the deeming clause, then in a house where the tenant was living with his four sons, one of his sons getting any accommodation in the same city or town, tenant along with his remaining t.he three sons have to be evicted which absurd $\quad \ \ \texttt{result.}$ ${\tt lead}$ to an shall Although we are not concerned in the present case with the scope of sub $\quad\text{ of }\quad$ $S.12.$ but $\verb"in=$ order $to$ $sec.(3)$ appreciate the submission $made$ $\circ$ n behalf of the respondents, we may point out that sub-sec $(3)$ of S.12, does not conceive that if one of the sons living the tenant, acquires any other with residential building in the same city or town, then even the original tenant to shall be deemed to have ceased occupy building in question. This is apparent from Explanation (b) to said sub-sec (3) which says:

"the expression" any member of family", in relation to a tenant, shall not

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include a person who has neither been normally residing with nor is wholly dependent on such tenant."

In view of the explanation any member of the family mentioned in subsec. (3) shall not include a person who has neither been normally residing with nor is wholly dependent on such tenant. As such, if a son of the tenant who is not wholly dependent on such tenant any residential acquires or gets building in the same city or town, there is no question of the tenant deeming to have ceased to occupy the building under sub-sec. (3) of S.12."

6. 2001(4) Supreme 154 (in the case of Ashok Chintaman Juker & Others Vs Kishore Pandurang Mantri and another. At paras-12, 13, 14, 15 and 16, it is held as under:

"Para-12:-In the case of Ganapath Vishnu Shine' a Ladha V. Sashikant Bench of three learned Judges of this construing the provision $\quad\text{ of }\quad$ Court Section 5(11) © of the Bombay Rent Act, 1947 held:

"The Act interferes with the landlord's right to property and freedom of contract only for the $\quad\text{ of }\quad$ protecting limited purpose tenants againstexcercise of the landlord's power to evict them in $\quad\texttt{of}\quad$ scarcity $\quad\text{ of }\quad$ these $\quad\mathtt{davs}$ accommodation $by$ asserting superior rights in property or trying to exploit his position by extracting too high rents from helpless tenants. The object was deprive the landlord $\verb"not"$ $\quad\texttt{to}\quad$

altogether $\circ \texttt{f}$ his riahts in property which have also to be respected."

Para-13:- In the case of Kanji Manji V. The Trustees of the Port $\quad\text{ of }\quad$ Bombay (AIR 1963 $SC = 468$ a bench $\quad\text{ of }\quad$ judges of this three learned Court construing the terms of the deed of assignment, observed as follows:

"The argument about notice need not detain us long. By the deed of assignment dated February 28, 1947. $\verb|the|$ $\verb|tenants|$ took the premises as joint tenants. The exact words of the assignment were that" ... he Assignors do and each of them both hereby assure with $\quad\text{and}\quad$ the assion Assignees as joint tenants. The deed of assignment was approved and accepted by the Trustees of the Port of Bombay, and Rupji Jeraj and the appellant must be regarded as joint tenants. The trial Judge, therefore, rightly Once it is held them to be so. held that the tenancy was joint, notice to one of the joint $\mathsf{a}$ tenants was sufficient, and the suit for the same reason was also qood. Mr. B.Sen, in arguing the case of the appellant, did not seek to urge the composite. In our opinion, the notice and the frame of the suitwere, therefore, proper, and this argument has no merit."

Para-14:- This court in the case of H.C.Pandey v. G.C.Paul (AIR 1989 SC $1470)$ $\verb|the|$ settled taking $\verb+note+$ $\quad\text{ of }\quad$ position that $\quad\hbox{on}\quad\hbox{the}\quad$ $death$ $\quad\text{ of }\quad$ the subject original tenant, to any provision to the contrary either

negativing or limiting the succession, the tenancy rights devolve on the heirs of the deceased tenant, held that it is a single tenancy which devolves on the There is no division of the heirs. $\quad\text{ of }\quad$ $\overline{or}$ $\verb|the|$ rent payable premises thereafter and that is the position as between the landlord and the heirs of the deceased tenant. In other words. the heirs succeed to the tenancy as joint tenants. This Court further held that the respondent acted on behalf of the tenants; he paid rent on behalf of his father and he accepted notice on behalf of all; in the circumstances the notice served under Section 106 of the Transfer of Property on the respondent sufficient and it was. was a valid notice.

Para-15:- In the case of Textile Association (India) Bombay Unit $\mathbf{v}$ . Balmohan Gopal Kurup and another, this Court on the facts and circumstances stated therein took the view that the ex-parte decree obtained against mother and brother was not binding against the respondent therein.

Para-16:- In the case on hand, as noted earlier, on the death of the tenant original Chintaman the rent bills in respect of the premises in question were issued in the name of his elder son Kesrinath and on his death the rent bills were issued in the name of his elder son Kesrinagth and on his death the rent bills were issued in the name of his widow Smt.Kishori Kesrinath Juker. It is not the case $\circ \text{f}$ the appellant No.1 that there was any division of the premises in question or rent was being paid the that to landlord separately by him. Indeed the appellant No.1 took the plea that he was paying the rent through Smt. Kishori Kesrinath Juker. Thus the

tenancy being one, all the members of the family of the original tenant residing with him at the time of his death. succeeded the tenancy $\mathsf{to}$ together. $In$ $\quad\hbox{the}\quad$ circumstances the conclusion inescapable that $\verb|is|$ Smt.Kishori Kesrinath Juker who was impleaded as a tenant in the suit filed by the landlord represented $\verb|all|$ the tenants and the decree passed in the suit is binding on all the members of the family covered by the tenancy. $In$ the circumstances the decree passed in terms of the compromise entered between the landlord and Smt.Kishori Kesrinath Juker can neither be said to be invalid nor in executable against any person who claims to be a member of the family residing with the original tenant, and therefore, 'tenant' as defined in $\mathsf{a}$ Section $5(11)(c)$ . The position that follows is that the appellants have no right to resist on the ground that the decree is not binding $\circ n$ them. Further. the trial court and the appellate court concurrently held that appellant $No.1$ the has $\quad \texttt{not} \quad$ been residing in the premises since 1962 i.e., when his elder brother Kesrinath was alive. Therefore, when the suit was filed in the year 1992 there was no necessity for the landlord to implead appellant No.1 or members of his family in the suit since he (landlord) had no cause of action for seeking a decree of recovery of possession from them. $In$ that view of the matter, the decree under execution does not suffer from any illegality or infirmity. Viewed from any angle the appellants have no justification on the facts as well as in law to resist execution $\quad\text{ of }\quad$ the decree for possession of the premises by the landlord. The Executing Court rightly rejected the objection filed by the appellants against execution of the decree and the appellate court and the

High Court rightly confirmed the said This appeal being devoid of order. merit is dismissed with costs which is assessed at Rs.10,000/-."

The learned counsel for the revision $17.$ petitioner contended that the judgment of the Apex Court in the case of Ganapath Ladha Vs. Shashikant Vishnu Sindhe and other judgments are binding, the judgments relied upon by the respondents as narrated above contain one relevant judgment reported in 2001(4) Supreme In this case Ganapath Ladas's 154. case, Kanchan's case, H.C.Pandy Vs G.C.Paul and Textile Association (India) Bombay, were all discussed.

18. In the present case also, it is not the case of the revision petitioner that he was paying rents separately to the landlord after the death of his father Sanjeeva Achar. On the other hand, he has contended in the petition that Mr. Yogesh Achar, his elder brother was paying the rents to the landlord after the death of their father Sanjeeva Achar. It is not their case that there was division of tenancy right between them. In the above case referred, the Apex Court has

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situation street held in similar circumstances that it was a pear L.Rs would become joint tenants. Even in the evidence, the landlord says that after the death of Mr.Sanjeeva Achar, Yogesh Achar executed rent bond in favour of original landlord. It was alsod marked as Ex.P.3. He has further stated that the present revision petitioner and his family members are also residing along with Yogesh Achar. This was not at all denied by the judgment debtor. If he was not representing the interest of his younger brother Venkatesh Achar, the said fact would have come on record. If the landlord had filed impleading application and withdrew it, nothing prevented the present revision petitioner to come on record when both the brothers with their families were living under the same roof. In the absence of any evidence to show that the relationship between them was strained, it has to be presumed that the revision petitioner had the knowledge of the proceedings of eviction petition. It is not his even in the present petition, that his case brother Yogesh Achar conducted the proceedings behind his back. He admits his brother was

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paying the rents. In that view of the matter, as the revision petitioner and his brother were joint tenants, the decree passed against one of the brother is binding on the other brother. The two courts below have properly assessed the facts and circumstances of the case and have rightly come to conclusion that it is not open to the present revision petitioner to contend that eviction order obtained against his brother Yogesh Achar is not executable against him. There is no justification in the said contention of the revision petitioner.

19. In view of the above discussions, the revision petition deserves to be rejected.

Accordingly, revision petition is $20.$ dismissed.

21. No order as to costs.

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KVS.