Radhika Sharma vs Union Of India And Another
2021 Latest Caselaw 16 j&K/2

Citation : 2021 Latest Caselaw 16 j&K/2
Judgement Date : 29 January, 2021

Jammu & Kashmir High Court - Srinagar Bench

Radhika Sharma vs Union Of India And Another on 29 January, 2021

                                      h475




             HIGH COURT OF JAMMU AND KASHMIR
                       AT SRINAGAR

                                             WP(C) No.1601/2020
                                             CM Nos.505, 4476, 4784, 4785 &
                                             5057 of 2020

                                                 Reserved on : 15.12.2020
                                                   Pronounced on :29.01.2021




Radhika Sharma                                                     ...Petitioner(s)


                           Through:- Mr. Vimal Roy Jad, Sr. Advocate
                                     With Ms. Ridhi Jad, Advocate
      V/s

Union of India and another                                       ...Respondent(s)
                          Through:- Mr. Tahir Majid Shamsi, ASGI

Coram: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE



                                 JUDGMENT

1. Daughter of Kanta Wazir, petitioner in WP(C) No.1568/2020

has filed the instant petition challenging the resumption notices dated

21.08.2020 and 15.09.2020 issued by the respondents. Challenge to the

resumption notice is on identical grounds as have been raised by the writ

petitioner in WP(C) No.1568/2020.

2. This Court has dealt with the aforesaid writ petition in extenso

and has dismissed the same being devoid of any merit. What is said in the

aforesaid judgment clearly applies on all fours to the case of the petitioner

herein as well. However, one additional plea raised by the petitioner in this

petition is that she being the legal heirs of Sh. Manmohan Wazir was

entitled to issuance of separate resumption notice which was never issued

to her. It is submitted that the notice to Smt. Kanta Wazir, if any issued,

cannot be deemed to be notice to the petitioner.

3. I have examined this issue raised by the petitioner carefully

and am of the view that no separate notice was required to be issued to the

petitioner. As is categorically held by this Court in the case of Kanta Wazir

that the lease hold rights, which were vested in Sh. T.C.Wazir, were never

transferred to Sh. Manmohan Wazir, the predecessor-in-interest of the

petitioner and her mother, Kanta Wazir.

4. That apart, even if it is assumed that Manmohan Wazir was

the lessee, who had stepped into the shoes of Sh.T.C.Wazir, yet on his

death, his lease hold rights will devolve on the petitioner and other legal

heirs and the subject property shall be held by all the legal heir as joint

tenants. It is well settled that in the cases of joint tenants, the notice to one

of the joint tenants is sufficient and all the joint tenants are not required to

be served with notice of eviction separately. This has been said by the

Supreme Court in the case of Boddu Venkatakrishna Rao & Ors v.

Shrimati Boddu Satyavathi & Ors., AIR 1968 SC 751 and H.C.Pandey

v. G.C.Paul, 1989 SC 1470. The observations of the Supreme Court in

paragraph No.4 of the judgment in H.C.Paney (supra) are relevant and are

reproduced hereunder:-

"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 incidence of the tenancy are the same as those enjoyed by the original tenant. It is a single tenancy which devolves on the heirs. There is no division of the premises or of the rent payable therefor. 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. In the present case it appears that the respondent acted on behalf of the tenants, that he paid rent on behalf of all and he accepted notice also on behalf of all. In the circumstances, the notice served on the respondent was sufficient. It seems to us that the view taken in Ramesh Chand Bose, (supra) is erroneous where the High Court lays down that the heirs of the deceased tenant succeed as tenants in common. In our opinion, the notice under S. 106 of the Transfer of Property Act served by the appellant on the respondent is a valid notice and therefore the suit must succeed."

5. In the subsequent judgment of Suresh Kumar Kohli v.

Rekha Jain and others, (2018) 6 SCC 708, the Supreme Court, on

consideration of various judgments on the point of service of notice upon

all the legal heirs of the original tenant held thus:-

"We are of the view that in the light of H.C. Pandey

(supra), the situation is very clear that when original

tenant dies, the legal heirs inherit the tenancy as joint

tenants and occupation of one of the tenant is

occupation of all the joint tenants. It is not necessary

for landlord to implead all legal heirs of the deceased

tenant, whether they are occupying the property or not.

It is sufficient for the landlord to implead either of

those persons who are occupying the property, as

party. There may be a case where landlord is not aware

of all the legal heirs of deceased tenant and impleading

only those heirs who are in occupation of the property

is sufficient for the purpose of filing of eviction

petition. An eviction petition against one of the joint

tenant is sufficient against all the joint tenants and all

joint tenants are bound by the order of the Rent

Controller as joint tenancy is one tenancy and is not a

tenancy split into different legal heirs. Thus, the plea of

the tenants on this count must fail."

6. The very foundation on which the instant petition has been

filed is knocked down by the aforesaid judgment of the Supreme Court.

7. For all what has been said above and also in the judgment

rendered in WP(C) No.1568/2020, I find no merit in this petition. The same

is, accordingly, dismissed along with connected applications.