Allahabad High Court
Nathu Ram vs Anoop Nath Mishra And Another on 16 September, 2013
Bench: Sibghat Ullah Khan
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Reserved on 4.9.2013
Delivered on 16.9.2013.
Court No. - 21
Case :- RENT CONTROL No. - 58 of 2002
Petitioner :- Nathu Ram
Respondent :- Anoop Nath Mishra And Another
Counsel for Petitioner :- J.P. Mathur,J.N. Pandey
Counsel for Respondent :- C.S.C.,B C Agarwal,V.C. Pandey
Hon'ble Sibghat Ullah Khan,J.
Heard Sri J.P. Mathur, learned counsel for the petitioner and Sri B.C. Agarwal, learned counsel for the contesting respondent no.1/landlord.
Due to fire in the Rent Control Office of the High Court, file of this petition was burnt. Duplicate file has been constituted, which is treated to be original.
Opposite party no. 1 landlord filed a release application under Section 21 of U.P. Act No. 13 of 1972 against Ram Swaroop, the tenant. The Prescribed Authority allowed the release application on 16.2.1994. Property in dispute is a house. Against the said order late Ram Swaroop filed Rent Appeal No. 97 of 1994. During pendency of the appeal Sri Ram Swaroop died on 19.8.1998. Petitioner filed substitution application seeking substitution as appellant at the place of Ram Swaroop. First substitution application was filed on 14.9.1998 without stating the relationship of the petitioner applicant with the deceased tenant. Thereafter through application dated 6.3.2002 Annexure-VII to the writ petition details were provided. The following pedigree was given by the petitioner in his application dated 6.3.2002, copy of which is Annexure 7 to the writ petition.
/------------------------------------------------------------------------/
/ /
Banasi Gopal Mohan Lal
/ /
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Kashi Prasad Mohan Lal Mijaji Lal Ram Swaroop /
(dead) (dead) (deceased tenant) /
Vishnu Kumar /
/
/
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/ / / /
Mool Chand Rameshwar Jagan Nath Har Dayal
(dead) (dead)
/
/
Nathoo Ram
(petitioner)
Through the impugned order dated 8.3.2002 passed by A.D.J., Court No. 4, Lucknow application was rejected and appeal was dismissed as incompetent for the reason that no legal representative of Sri Ram Swaroop was there to pursue the appeal.
It was argued on behalf of petitioner before the lower appellate court that he was nephew of deceased tenant and was residing with him, hence he had become tenant of the accommodation after the death of original tenant. Same argument was repeated by the learned counsel for the petitioner in this writ petition. Under Section 3(a) of the Act, it is provided as follows:
"Tenant in relation to a building, means a person by whom its rent is payable, and on the tenant's death-
(1) in the case of residential building, such only of his heirs as normally resided with him in the building at the time of his death."
Accordingly, in order to become tenant of a residential building on the death of original tenant, a person must be heir of the tenant and normally be residing with him in tenanted building at the time of tenants' death. Obviously, heir means an heir in accordance with personal law. Under the Hindu Succession Act in the presence of real brothers and sons and grand sons of deceased real brothers, cousin brother and their sons and grandsons are not heirs. As according to own case of the petitioner Mijajilal real brother of original tenant (who died unmarried) was alive hence he would be heir of original tenant. In any case sons of Kashi Prasad, Mohan Lal real brothers of Ram Swarooop the original tenant would have preference over the petitioner, who is son of Jagarnath cousin of Ram Swaroop.
Accordingly, there is no error in the impugned order and no merit in the writ petition, hence it is dismissed.
Property in dispute is a residential house being No. 4-A, Situate at Park Road, Lucknow. Rate of rent is stated to be less than Rs. 50/- per month. Accommodation in dispute is stated to consist of 4 rooms, two on the ground floor and 2 on the first floor.
As petitioner was not heir of the deceased tenant hence it is wholly unnecessary to decide as to whether he was family member of Ram Swaroop the deceased tenant as defined by Section 3(g) of the Act.
Accordingly, writ petition is dismissed.
Petitioner is liable to pay damages for the use and occupation of the house in dispute at the rate of 2000/- per month since October, 1998 till eviction. For the realization of the said amount this judgment and order shall be treated to be a certificate of recovery in Form G under Rule 24(2) of the Rules framed under this Act.
Order Date :- 16.9.2013
S. Kumar
