# Vijay Kalra v. Anuj Kumar & Anr

- **Citation:** (2024) 12 ILRA 203
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-12-10
- **Case number:** Matters Under Article 227 No. 9910 of 2023
- **Bench:** Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vijay-kalra-v-anuj-kumar-anr-51197
- **Pages:** 9

## Headnote

Law-The
Uttar
Pradesh
Urban
Buildings (Regulation of Letting, Rent and
Eviction)
Act,
1972-Section
3(2)
&
21(1)(a)- Tenancy inherited by heirs in
succession--- If one of the tenant in common is
impleaded by landlord for release other cannot
question maintainability of release application---
Petitioner decided to contest the matter setting
up a claim of tenancy, it would be, therefore,
not lie in the mouth of tenant to suggest that
release order could not have been passed
against him just for his admission to be a
tenant--- Application for release against one is
maintainable against all these heirs who
inherited tenancy. (Para 19, 22 & 24) (E-15)

List of Cases cited:

## Text

12 All. Vijay Kalra Vs. Anuj Kumar & Anr.
203

47. In view of the aforesaid settled
position of law and specifically in view of
the interim order dated 05.08.2019 passed
by this Court whereby the order dated
09.04.2019 was directed to be stayed qua
the petitioner herein, therefore, there is no
illegality on the subsequent orders dated
27.11.2019 and 20.02.2020 passed by the
learned Special Chief Judicial Magistrate
and also the impugned order dated
03.08.2022 passed by the Revisional Court
in Criminal Revision No. 145 of 2021.

48. Therefore, writ petition under
Article 227 No. 7549 of 2022 is hereby
dismissed and the trial court is directed to
proceed in the matter on the basis of the
cognizance already taken against the
petitioner herein and all subsequent orders
passed by learned Additional Chief Judicial
Magistrate
on
07.06.2024,
the
other
accused
persons
have
already
been
summoned.

49. Therefore, under Section 319
Cr.P.C., the trial court is directed to
proceed in the accordance with law.
----------
(2024) 12 ILRA 203
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.12.2024
BEFORE

THE HON'BLE AJIT KUMAR, J.

Matters Under Article 227 No. 9910 of 2023

Vijay Kalra ...Petitioner
Versus
Anuj Kumar & Anr. ...Respondents

Counsel for the Petitioner:
Gulrez Khan, Javed Husain Khan, Sr.
Advocate

Counsel for the Respondents:
Ajay Kumar Sharma

Civil
Law-The
Uttar
Pradesh
Urban
Buildings (Regulation of Letting, Rent and
Eviction)
Act,
1972-Section
3(2)
&
21(1)(a)- Tenancy inherited by heirs in
succession--- If one of the tenant in common is
impleaded by landlord for release other cannot
question maintainability of release application---
Petitioner decided to contest the matter setting
up a claim of tenancy, it would be, therefore,
not lie in the mouth of tenant to suggest that
release order could not have been passed
against him just for his admission to be a
tenant--- Application for release against one is
maintainable against all these heirs who
inherited tenancy. (Para 19, 22 & 24) (E-15)

List of Cases cited:

1. Hajra Begum Vs Mansoor Ali & ors., passed in
Writ A No. 43707 of 2003 decided on
23.1.21012

2. Suresh Kumar Kohli Vs Rakesh jain & anr.,
(2018) 6 SCC 708

(Delivered by Hon'ble Ajit Kumar, J.)

1. Heard Sri W.H.Khan, learned
Senior Advocate assisted by Sri Gulrez
Khan, learned counsel for the petitioner and
Sri M.D.Singh Sekhar, learned Senior
Advocate assisted by Sri Ajay Kumar
Sharma, learned counsel for the respondent.

2.
Petitioner
Vijay
Kalra
has
questioned the order passed by Rent
Appellate Court in Rent Control Appeal
No. 21 of 2022 allowing release application
qua tenanted premises in favour of landlord
respondent-Anuj Kumar, even though the
land lord respondent never admitted
petitioner to be tenant and even after his
impleadment being ordered in the release
application by amendment in release
application, it was made specific to
opposite party no. 1 therein. It is argued
that since release was filed against opposite
204 INDIAN LAW REPORTS ALLAHABAD SERIES
party no. 1, the release of denied premises
could not have been ordered against present
petitioner. He claimed to have entered into
a partnership firm with his father, Hansraj
Kalra in 1984 and after death of his father
in the year 1992, he became proprietor of
the firm, namely, M/s Hemraj and he
having not been treated as tenant by the
land landlord, the application could not
have been granted taking him to have
succeeded the tenancy being one of the
heirs of Hemraj for alleged succession of
tenancy.

3. In support of his above arguments,
so advanced, Sri W.H.Khan learned Senior
Advocate assisted by Sri Gulrez Khan,
learned counsel for the petitioner placed
before the Court the order of High Court
allowing impleadment application passed
in Writ A No. 16410 of 2015. It is
submitted that after impleadment was
allowed on 18.5.2015 when it became
necessary for the landlord to amend release
application and he impladed petitioner only
as defendant no. 2 on account of order
being passed by the High Court but then
proceeded to further amend paragraphs 2,
8,9 and 10 of release application to make
release application specific to respondent
no. 1 Vinod Kalra only. He also took the
Court to the written statement filed by
present petitioner in the release application
wherein he claimed himself to be the tenant
of the landlord as a proprietorship firm of
which he was sole proprietor, but the
landlord refused to recognize him as tenant
as he had made specific pleadings in
paragraph 17 of the reply that for mere
signing the receipts issued against payment
of rent, Vijay Kalra would not become his
tenant. He further pleaded before the Court
that in paragraph 17 of the said affidavit in
reply, the landlord admitted that M/s
Hansraj Vinod Kalra tenant.

4. It is further argued that in written
statement, it was specifically pleaded by
the present petitioner that he was helping
his father Hansraj and became a partner
with him in 1984 forming a partnership
firm, copy whereof has also been brought
on record as annexure 8 to the petition.
Thus, it is submitted that when petitioner
himself was a tenant being partners of the
firm and with the dissolution thereof in
1992, petitioner formed a proprietorship
firm and was admitted as tenant in
individual and independent capacity, the
landlord having not maintained the release
application against petitioner by amending
it to the extent that relief was being claimed
as only against Vinod Kalra, namely,
defendant
no.
1
impleaded
in
the
application, merely because petitioner was
a party would not have rendered the release
application maintainable against him under
Section 21(1)(a) of Uttar Pradesh Urban
Buildings (Regulation of Letting, Rent and
Eviction) Act, 1972.

5. In support of above argument, he
has placed reliance upon the authority of
Supreme Court in the case of Om Prakash
and Others v. Ram Kumar and Others,
(1991) 1 SCC 441 and Maqboolunnisa v.
Mohd. Saleha Quaraishi, Allahabad
Rent Cases, 1998 (2).

6. Another argument was sought to be
advanced by Mr. Khan that there was no
sufficient service of notice upon defendant
no. 1 to maintain release as against him and
has relied upon judgment of coordinate
bench of this Court in the case case of
Aayal Das v. Shelendra Agrawal and
Others (2015) (113) ALR 28 and another
judgment in the case of Shrawaan @
Sarvan Gupta v. Smt. Renu Kushwaha
2020 (138) ALR 660.
12 All. Vijay Kalra Vs. Anuj Kumar & Anr.
205

7.
Meeting
the
submissions
so
advanced above on behalf, the petitioner,
Mr. M.D.Singh Shekhar, learned Senior
Advocate assisted by Ajay Kumar Sharma,
learned
counsel
for
the
respondents
submitted that petitioner having admitted
himself to be tenant, succeeding the
tenancy from his father Hansraj, would
have made him automatically a tenant by
succession and once he had been impleaded
in
the
release
application,
release
application could have been granted on
merits against him as well. He argues that
admission being the best piece of evidence
even if landlord did not amend the entire
plaint of release application but having
amended the relief clause, it should be
taken to be release application as against
present petitioner as well.

8. He has further argued that petitioner
having succeeded tenancy from his father
alongwith his brother and other heirs and
tenancy being commercial in nature in
respect of non residential building, in view
of Section 3(2) of Act No. 13 of 1972, he
automatically became a joint tenant. The
petitioner and his brother and other heirs of
Hansraj have to be taken as joint tenants for
having inherited tenancy rights from their
deceased father together and so release
application under Section 21(1)(a) was
maintainable.

9. Sri Singh has further defended the
order passed by the appellate authority on
this count by referring to the relevant
paragraph of the judgment in which he has
been taken to be heir of the erstwhile
landlord
Hansraj
and
hence
release
application deserved to be allowed as
against him. Mr. Singh has further argued
that on the point of bonafide need there are
concurrent findings of fact which has not
been assailed. He submits that once the
petitioner has come to be impleaded as
tenant in the release application and he
himself admits to have succeeded tenancy
from his father as his natural heir, the Court
of appeal cannot be said to have manifestly
erred in allowing release application as
against him as well. Mr. Singh has further
argued that there was no tenancy with the
partnership firm as has come in the written
statement of the contesting petitioner that
tenancy was created in 1951 when Hansraj,
his father was inducted. He submits that in
1984 partnership firm was formed between
him and his father and later on when father
died in 1992, the partnership firm got
dissolved and upon its dissolution, a new
properietorship firm came into existence
but there is no averment to the effect that
there was any tenancy ever created in
favour of either partnership firm or in
favour of proprietorship firm and hence
release was maintainable against heirs of
Hansraj.

10. In his rejoinder affidavit, Mr. Khan
argued that sufficient evidence was placed
on record that in 1984, a partnership firm
was formed and the landlord respondent
having admitted in affidavit that he used to
issue receipts in the name of M/s Hansraj
Vinod Kalra, he would be taken to have
admitted that there was firm created in
1984 and that firm was paying rent. Thus
according to Mr. Khan this admission itself
was indicative of tenancy created in favour
of firm.

11. Having heard learned counsel for
the respective parties and having perused
the records, the only point that arose for
consideration before the Court was whether
release could have been granted against
petitioner once he stood impleaded in the
release
application
as
one
of
the
respondents upon his own admission that
206 INDIAN LAW REPORTS ALLAHABAD SERIES
he was tenant of the landlord. Even though
release application did not contain recitals
admitting him to be tenant and rather
making it more respondent no. 1 specific
and yet it has been allowed upon admission
of petitioner to be tenant for his succeeding
tenancy from his father Hansraj.

12. In order to find answer to this
above point in issue, it is to be first
determined as to whether there was ever a
tenancy in favour of firm or it was in
favour of an individual. If tenancy was in
favour of firm, it would be taken to have
terminated upon death of partner with the
dissolution
of
partnership
firm
and
continuation thereof with one of the
partners after he formed a proprietorship
firm would be taken to be a tenancy in
favour of firm alone. However, if it comes
to be established that it was tenancy in
favour of individual then all successors of
the individual would become heirs to
inherit tenancy and would be to be joint
tenants and then release application against
one would be taken to be release
application competent against the other
who is a party, even though not much
pleadings have been raised admitting other
heir to be tenant, in view of legal fiction
created under Section 3(2) of the Uttar
Pradesh Urban Buildings (Regulation of
Letting, Rent and Eviction) Act, 1972.

13. The question whether there was a
tenancy with partnership firm or not, since
respondent no. 1 has not contested the
pleadings raised by respondent no. 2, it
becomes relevant as he has admitted himself
to be tenant. In the written statement filed by
the respondent no. 2, present petitioner vide
paragraph 18 has admitted to be paying rent
@ Rs. 450/- as a tenant and respondent no. 1,
namely his brother was not tenant. So there is
no quarrel as to jural relationship of landlord
between respondent and petitioner. In
paragraph 23 of the release application, the
applicant denied respondent no. 2 therein to
be tenant, and therefore, any request by
landlord to respondent no. 1 to release
premises in question was absolutely ill
founded. In paragraph 25 of the written
statement (verified on 29th July, 2016) he
claimed that 51 years ago, the shop in
question was taken on rent by his father
Hansraj kalra from Bhagwandas and ever
since then his father continued to be tenant of
the shop in question. He claimed to be born
in 1962 and after getting admitted, he started
sitting with his father and since petitioner was
not interested in pursuing studies further and
was taking interest in business of Standard
Auto Electrics, he became partner of his
father in a partnership firm for which
agreement was executed on 2nd July, 1984 in
writing and ever since then he was paying
rent. In paragraph 27, he claimed that on 6th
January, 1992 his father died leaving behind
widow Smt. Shila , daughter Smt. Kailashrani
and four sons, namely Om Prakash, Vinod
Kalra ,Ashok Kalra, and opposite party Vijay
Kalra as his legal heirs.

14. It is further claimed that petitioner
Vinod Kalra shifted to Dehradun and was
doing business there only and this was in
full knowledge and notice of respondent. In
paragraph 28, it is stated that after death of
Hansraj, petitioner succeeded tenancy as
heir as per law. In paragraph 29, it is stated
that after death of his father, petitioner was
running partnership firm and this was in
full knowledge of Anuj Kumar and his
father.
The
relevant
paragraphs
25,
26,27,28 and 29 are reproduced hereunder:

"25. यह दक वास्तदवकता यह है दक प्रारम्भ में
यादन लगभग 51 साल पूवा दववादित िुकान दवपक्षी उत्तरिाता के
दपता हंसराज कालडा ने लाला भगवानिास से दकराये पर ली थी
तथा वे लगातार िुकान दववादित में दकरायेिार चले आते रहे। दवपक्षी
12 All. Vijay Kalra Vs. Anuj Kumar & Anr.
207
उत्तरिाता का जन्म सन 1962 में हुआ तथा दवपक्षी उत्तरिाता
अपनी दशक्षा ग्रहण करने के िौरान अपने दपता के साथ दववादित
िुकान पर बैठता चला आता था। दवपक्षी उत्तरािाता ने हालांदक
एम०एस०सी० मैथ से दशक्षा प्राप्त की थी परन्तु दवपक्षी उत्तरािाता
की रूदच प्रश्नगत िुकान पर हो रहे ऑटो इलैदक्िक व्यवसाय में थी
तथा दवपक्षी उत्तरिाता वषा 1984 में दवदिवत रूप से प्रश्नगत िुकान
पर हो रहे कारोबार में अपने दपता के साथ भागीिार शादमल हो गया।
इस सम्बन्ि में दिनांक 2-7-1984 को एक भागीिारी दवलेख भी
दवपक्षी उत्तरिाता व उसके दपता के मध्य दलखा गया था जो मूल रूप
से आयकर दवभाग में िादखल है।

26. यह दक दवपक्षी उत्तरिाता वषा 1984 से
दनरन्तर प्रश्नगत िुकान पर व्यवसाय करता चला आ रहा है इस
सम्बन्ि में दनयदमत रूप से प्रदत वषा दवपक्षी उत्तरिाता द्वारा आयकर
ररटना िादखल की जाती रही है।

27. यह दक दवपक्षी उत्तरिाता के दपता श्री हंसराज
का दनिन दिनांक 6-1-1992 में हो गया। दवपक्षी उत्तरिाता के
दपता श्री हंसराज द्वारा अपने मरने पर अपनी पदत्न श्रीमती शीला एक
पुत्री श्रीमती कैलाशरानी व 4 पुत्र ओमप्रकाश, दवनोि कालडा,
अशोक कालडा व दवपक्षी उत्तरिाता बतौर अपने कानूनी वाररस
छोडे। दवपक्षी उत्तरिाता का भाई दवनोि कालडा अरसा िराज पूवा
िेहरािून दशफ्ट हो गया था और वहीं पर रहकर अपना व्यवसाय
करता चला आता रहा। यह तथ्य आवेिक अनुज कुमार व उनके
दपता के भी व्यदिगत ज्ञान में रहे व है।

28. यह दक दवपक्षी उत्तरिाता के दपता स्व० श्री
हंसराज के मरने के उपरान्त उनके सभी वारसान को हकूक
दकरायेिारी हस्ब मंशा कानून दववादित सम्पदत्त के दवषय में प्राप्त हो
गये।

29. यह दक प्रश्नगत िुकान पर दवपक्षी उत्तरिाता
अपने दपता के दनिन के पश्चात बहैदसयत प्रोपराईटर काया करता
चला आ रहा है। इस तथ्य का ज्ञान भी आवेिक अनुज कुमार व
उनके दपता को व्यदिगत रूप से रहा।"

15. Reply to above has been submitted
by Anuj Kumar, the landlord in which vide
paragraph 16 he denied about partnership
firm and claimed that shop was constructed
sometimes in 1975 only. In his affidavit,
the landlord vide paragraph 17, it was
stated that tenancy was with M/s Hansraj
Vinod Kalra and tenancy continued as
such. In paragraph 21, it is stated that
merely because receipts used to be signed
by Vijay Kalra, it cannot be said that there
was any tenancy with Vijay Kalra.
Paragraphs 17 and 21 of the affidavit of
Anuj Kumar are reproduced hereunder:

"17. यह दक शपथ पत्र-वी के पैरा नम्बर-13 में
कहे गये कथन गलत है और स्वीकार नही है। उसके प्रदतउत्तर में मैं
अपने पूवा शपथ पत्र के कथनो को पुनः िोहराता ह ूँ। जैसा दक ऊपर
कथन दकया गया है दक दकरायेिारी फमा मैससा हंसराज दवनोि
कालडा के नाम से थी। हंसराज की मृत्यु के बाि फमा की दकरायेिारी
चली आती रही तथा दवनोि कालडा के द्वारा ही दकराया अिा दकया
जाता रहा। इसके दवपरीत पैरा नम्बर-13 में कहे गये कथन गलत है
और स्वीकार नही है।

21. यह दक शपथ पत्र-वी के पैरा नम्बर 17 में कहे
गये कथन गलत है और स्वीकार नही है। जहाूँ तक रसीि मुसन्ना पर
दवजय कालडा के हस्ताक्षर की बाबत कथन है, इस बाबत यह स्पष्ट
दकया जाता है दक कभी कभी आवेिक शपथकताा की ओर से उनका
कमाचारी दकराया प्राप्त करने जाता था तो दकराये की अिायगी की
रसीि के काउन्टर फाईल पर दवजय कालडा के हस्ताक्षर करा लेता
था लेदकन रसीि मैससा हंसराज दवनोि कुमार के नाम से ही काटी
गयी। केवल दवपक्षी नम्बर-2 के काउन्टर फाईल पर हस्ताक्षर मात्र से
यह दसद्ध नही होता है दक वह प्रश्नगत सम्पदत्त में दकरायेिार है।"

16. From the perusal of the above
pleadings, this much becomes clear that
tenancy continued with Hansraj since prior
to 1984 as he was admittedly inducted by
the father of the landlord respondent but
when the partnership firm came to be
formed in 1984 by the Hansraj with his son
Vijay Kumar, there was no fresh tenancy
agreement entered between the parties. The
partnership deed, which has been brought
on record does not contain any recital to the
effect
that
this
partnership
firm
acknowledges its address with concurrence
of the landlord to provide a place for the
firm to run its business. The partnership
deed only acknowledges the business and
partnership with Hansraj kalra having 25
per cent share and vijay Kalra having 75
per cent share. Even in 1992 when the
partnership firm got dissolved with the
death of Hansraj Kalra, it has not come to
be established on record that partnership
208 INDIAN LAW REPORTS ALLAHABAD SERIES
firm entered into some agreement of
tenancy between respondent landlord and
present petitioner.

17.
The
pleadings
as
I
have
reproduced
hereinabove
raised
by
petitioner
in
written
statement
fully
demonstrate that it was tenancy inherited
by heirs in succession and that petitioner
has succeeded tenancy on account of being
heirs of Hansraj. The affidavit of Anuj
Kumar has simply states that receipts to be
used issued in the name of M/s Hansraj
Vinod Kalra having signed receipts, he
would not become his tenant.

18. The denial established two things
are very clear and that while Vijay Kalra,
present
petitioner
claimed
to
be
proprietorship firm having tenancy with
landlord
respondent
whereas
landlord
respondent totally denied any such tenancy
rights ever created in favour of partnership
firm and still further there is no such
document brought on record which may
demonstrate that any jural relationship by
landlord and tenant was created either first
time in 1984 or 1992.

19. In the circumstances, therefore,
tenancy rights came to be inherited by heirs
and since other heirs left or get settled
somewhere else as is case of the petitioner
in his written statement, he succeeded
tenancy. Since tenancy was in favour of
individual with his death all the heirs came
to be succeeded the tenancy, they become
tenancy in common. The settled legal
position is that if one of the tenant in
common is impleaded by landlord for
release
other
cannot
question
maintainability of release application. Thus,
even though no release application was filed
against Vijay kalra, the release application
against Vinod Kalra as heirs of Hansraj was
fully maintainable and Vijay Kalra having
subsequently joined the release application as
a part,y his release could have equally been
ordered. I have already held that since there
was no tenancy agreement with partnership
firm merely because a tenant has formed
partnership firm, the firm will not become
tenant that is for individual business purpose
of the tenant and to make liability of tax that
tenant might have formed firm that is son, but
this duration partnership would not change
character of partnership and would not
change the character of tenancy.

20. Now Section 3(2) of the Act is
reproduced hereunder:

"In the case of a non-residential
building, his heirs;

Explanation- An occupant of a
room in a hotel or a lodging house shall not
be deemed to be a tenant."

21. From a bare reading of the aforesaid
provision it becomes clear that since building
in question was non-residential, the petitioner
being heir of Late Hansraj and having
admittedly succeeded tenancy from his
father, was to be equally bound by release
application. It was fair admission on the part
of the petitioner that he was tenant, he having
succeeded tenancy from his father and after
having admitted to be tenant even if certain
amendments made to release application
making specific to respondent no. 1, in the
event ultimately relief was sought in the relief
clause against present petitioner, petitioner
could not have maintained a plea that release
being not directed against him, it could not
have been granted against him.

22. It is worth interesting to notice that
petitioner
was
not
party
to
release
application and he could have remained as
such to question the order of release for
12 All. Vijay Kalra Vs. Anuj Kumar & Anr.
209
non joinder of necessary party but since he
was aware that he had succeeded tenancy
from his father and release application had
rightly been filed against of the heirs who
were joint tenants and since petitioner was
in possession in such capacity of a tenant,
order of release would certainly bind him.
Since petitioner had decided to contest the
matter setting up a claim of tenancy, it
would be,therefore, not lie in the mouth of
tenant to suggest that release order could
not have been passed against him just for
his admission to be a tenant. In the
affidavits that have been filed by parties, I
find that landlord did, of course, show that
tenancy was succeeded by Vinod Kalra but
he impleaded petitioner also and prayed for
relief in the release application against him,
so it should be taken that release
application was also directed against him.

23. The judgment of the court that has
been cited before him refer to Section 13 of
the Tenancy Act of State of Haryana,
namely, Haryana Urban (Control of Rent
and Eviction) Act, of 1973. The Court has
held that merely because tenant was a
party, he would not be liable to be evicted
unless landlord takes specific stand in view
of Sub section 2 of Section 13 of said Act.
From the judgment, it is not inferable as to
whether there was any provision in the
statute of the other state as contained under
Section 3(2) of the Act No. 13 of 1972
applicable in the State of U.P. Section
3(2)very clearly stipulates that rent is
payable by person upon death of tenant :

1. who is normally residing in the
building at the time of his death but;

2. in the case of non residential
building, his heirs.

24. This Court has interpreted the heirs
to be joint tenant and has held that
application for release against one is
maintainable against all these heirs who
inherited tenancy.

25. In the case Hajra Begum v.
Mansoor Ali and Others, passed in Writ
A No. 43707 of 2003 decided on
23.1.21012, the Court has held vide
paragraph 21,22,23 and 24 thus:

"21. What would be the position
in the context of tenant? Can a similar
principle be applied in the context of jointtenancy/co-tenancy as also in the case of
tenancy in common or there are some other
principles. The concept and consequences
of joint-tenancy and co-tenancy and
tenancy in common have been considered
in various authorities. In the case of tenant
in common, each one shall be an individual
tenant in his own rights and tenancy will
have that much of units of tenancy as the
number of tenants in common. In such a
case neither one tenant can represent all
others nor any proceeding can be validly
prosecuted without impleading all the
tenants. In such a case all the tenants, i.e.,
tenants in common, would constitute
necessary parties and without impleading
anyone of them the proceedings by
landlord would not be maintainable for
want of necessary parties.

22. The position, however, would
be different in the case of joint-tenancy/cotenancy. Such rights come into existence as
a result of devolution of certain rights to
enjoy immoveable property by virtue of
certain incident, natural or otherwise. For
example if ''A', a tenant has ''B' wife and
''C' and ''D' sons or ''C' son and ''D'
daughter; after death of ''A', tenancy rights
shall devolve on all the legal heirs i.e., ''B',
''C' and ''D' without multiplying tenancy to
number of legal heirs vis a vis landlord. It
would continue to be a single tenancy
210 INDIAN LAW REPORTS ALLAHABAD SERIES
though the legal heirs, if more than one, all
shall become joint-tenant/co-tenant but
continue to maintain a single unit of
tenancy.

23.
The
concept
of
jointtenancy/co-tenancy has been considered in
H.C. Pandey Vs. G.C. Paul 1989 (2) ARC
26. The Apex Court said that on the death
of original tenant, subject to any provision
to the contrary, either negativing or
limiting succession, tenancy rights devolve
on the heirs of the deceased tenant. The
incidence of tenancy is the same as those
enjoyed by the original tenant. Thus in
other words, the heirs succeed the tenancy
as "joint tenants".

24. The above legal exposition
was reiterated and approved by a threeJudge Bench of Apex Court in Harish
Tandon Vs. Addl. District Magistrate,
Allahabad and others 1991 (1) ARC 220. In
para 23 and 24 of judgment, the Court said,
it is difficult to hold that after the death of
original tenant, his heirs become tenant in
common and each one of the heirs shall be
deemed to be an independent tenant in his
own right. On the contrary, it is a single
tenancy which devolves on the heirs and
there is no division of the premises or of the
rent payable therefor, and, the heirs succeed
the tenancy as joint tenants. The Court also
referred and followed an earlier Constitution
Bench Judgment in Smt. Gian Devi Anand
Vs. Jeevan Kumar and others 1985 SCFBRC
229 SC. The Bench also referred to a
contrary decision in Mohd. Azeem Vs.
District Judge, Aligarh 1985 (2) ARC 85
(SC), and, having considered the same in
para 27, held that decision in Mohd. Azeem
(surpa) does not lay down correct law. The
decision in H.C. Pandey (supra) is however
affirmed."

26. The Supreme Court in the case of
Suresh Kumar Kohli v. Rakesh jain and
Another,
(2018)6
SCC
708
has
distinguished co-tenancy and joint tenancy
and has held that where the tenancy has
jointly inherited and then it becomes joint
tenancy. Vide paragraph 14 and 15 the
Court has held thus:

"14. The issue at hand is what
would be the status of the succeeding legal
representatives after the death of the
statutory tenant. In this regard, it would be
worthy to discuss the two capacities viz.
tenancy-in-common and joint tenancy, and
the rights that one holds in these two
different capacities. Fundamentally, the
concepts of joint tenancy and tenancy-incommon are different and distinct in form
and substance. The incidents regarding the
co-tenancy and joint tenancy are different :
joint tenants have unity of title, unity of
commencement of title, unity of interest,
unity of equal shares in the joint estate,
unity
of
possession
and
right
of
survivorship.

15. Tenancy-in-common is a
different concept. There is unity of
possession but no unity of title i.e. the
interests are differently held and each cotenant has different shares over the estate.
Thus, the tenancy rights, being proprietary
rights, by applying the principle of
inheritance, the shares of heirs are
different and ownership of leasehold rights
would be confined to the respective shares
of each heir and none will have title to the
entire leasehold property. Therefore, the
estate shall be divided among the cotenants and each tenant in common has an
estate in the whole of single tenancy.
Consequently, the privity exists between the
landlord and the tenant in common in
respect of such estate."

27. In view of above, therefore, the
points stands answered in favour of
12 All. Khem Chandra Rajvanshi Vs. Satish Chandra & Ors.
211
landlord respondent that release was
maintainable against respondent no. 2 as
well, being heir of Late Hansraj as no
independent tenancy could be established
in
favour
of
partnership
firm
or
proprietorship firm.

28. In so far as question of notice is
concerned,
since
petitioner's
own
admission is that respondent no. 2 was not
residing and he did not receive notice,
respondent no. 2 would have been best
person to deny the same. Petitioner has
himself admitted that Vijay Kalra, his
brother was not tenant and he was tenant
and had contested the matter through out,
now he could not be permitted to take plea
of no notice. The order to proceed ex parte
after acknowledgement of notice and
service at the end of landlord by the
Prescribed authority was never put to
challenge by either Vinod Kalra respondent
no. 1 impleaded in release application, nor
even by present petitioner. Hence, this
Court would not go into question of service
of notice upon respondent no. 1 at this
stage.

29. In view of above, the petition lacks
merit and is accordingly dismissed with no
order as to cost.
----------
(2024) 12 ILRA 211
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.12.2024

BEFORE

THE HON'BLE AJIT KUMAR, J.

Matters Under Article 227 No. 13677 of 2024

Khem Chandra Rajvanshi ...Petitioner
Versus
Satish Chandra & Ors. ...Respondents

Counsel for the Petitioner:
Abhinav Gaur, Vibhu Rai

Counsel for the Respondents:
Rahul Sahai

Civil
Law-The
Uttar
Pradesh
Urban
Buildings (Regulation of Letting, Rent and
Eviction) Act, 1972-Section 2(2)-The Code
of Civil Procedure,1908-Section 21- In case
of pecuniary jurisdiction, a question raised that
higher court could not have decided the matter
because the court in lower rank had the
jurisdiction, would not be maintainable as such
exercise would not amount to such failure of
justice so as to suggest that if he if such
irregularity is not arrested, it will lead to a
miscarriage of justice---Explanation to second
proviso to Section 2(2) makes it absolutely clear
that qua completion of a building, the first
assessment thereof by concerned municipality
would be the most relevant of the documents, if
otherwise there is no other document to the
contrary.

Petition partly allowed. (E-15)

List of Cases cited:

1. M/s Pankaj Hotel & anr.Vs Bal mukund and
18 others: SCC Revision No.171 of 2017 decided
on 30 August 2017

2. Om Prakash Agarwal Since Deceased thr.
LRs. & ors. Vs Vishan Dayal Rajpoot &
anr.:2018(3)ARC 652.

3.
Shekhar
Vs
Harishankar
Azad
(Since
deceased) & ors.:2019(3) AWC 2500.

(Delivered by Hon'ble Ajit Kumar, J.)

1. Heard Sri Anoop Trivedi, learned
Senior Advocate assisted by Sri Vibhu Rai,
learned counsel for the petitioner and Sri
Rahul Sahai, learned counsel for the
landlord-respondent.

2. The petitioner before this Court has
questioned the order passed by the Judge,