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Ehsan Ali v. Naimulla Khan Shervani And Another - WRIT - A No. 32349 of 2004 [2006] RD-AH 19575 (20 November 2006)


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Court No.7

Civil Misc. Writ Petition No. 32349 of 2004

Ehsan Ali  


Naimulla Khan Sherwani and another  

Hon. Sanjay Misra, J.

Heard Smt.Anita Tripathi, learned counsel for the petitioner and Sri M.A.Qadeer, learned counsel appearing on behalf of the respondents.

This petition has been filed challenging the order dated 11.2.2004 passed by the prescribed authority in case no.2 of 2002 and the revisinal court's order dated 6.4.2004  whereby the revisional court has dismissed the revision no.4 of 2004 filed by the petitioner.

In brief the facts of the case are that the father of the respondent no.2 was occupying one servant quarter in the premises  as he was serving under the  respondent no.1. After his death the respondent no.2 continued to serve the  respondent no.1 landlord but subsequently he left the service and left the servant quarter in question.  However he did not hand over possession of the quarter to the respondent no.1 therefore respondent no.1 filed an application before the Rent Control and Eviction Officer for declaring the said accommodation  vacant u/s 12/16 of U.P. Act No.13 of 1972. The Rent Control and Eviction Officer passed the order of vacancy on 23.1.2003 and on 12.9.2003 it was released in favour of the respondent no.1 under section 16(1)(b) of the Act. Against the aforesaid order, the respondent no.2 filed a  revision which was also dismissed on 25.9.2003 and the said order attained finality. During these proceedings  the petitioner, who alleges to be the brother of the respondent no.2, filed an application for impleadment  on the ground that he is also a son of Bundu Khan and brother of respondent no.2 therefore he was a necessary party. The said application has been rejected by the impugned order dated


11.2.2004. The revision of the petitioner has also been rejected by the judgment and order dated 6.4.2004.

It is contended by learned counsel for the petitioner that since the petitioner is the heir and legal representative of the original tenant he was a necessary party in the proceedings and hence his application was liable to be allowed. The courts below have found that the proceedings were contested  by the brother of the petitioner i.e. respondent no.2. It is also admitted  that  no rent was paid by the petitioner or by the respondent no.2. The tenancy, if any, was a single tenancy and was contested by the respondent no.2 and   the proceedings u/s 12/16 of the Act has attained finality. Thereafter Forms C and D had  been issued and the respondent no.1 has been handed over possession of the accommodation in question from the unauthorized occupant.

Learned counsel for the petitioner submits that since he was in lawful occupation of the premises in question by virtue of being heir of Budhu Khan therefore the petitioner could not be evicted under the orders passed in the earlier proceedings.  The said argument of  learned counsel for the petitioner has been opposed and it is argued that the petitioner  has got a  remedy under section 16 (5)of the Act hence no interference is required by this court.

Section 16(5) of the Act provides that if an order made under section 16(1)(b) of the Act was not in accordance with law then the District Magistrate may review the order  on an application made by any person claiming to be a lawful occupant.  The petitioner  claims to be a necessary party as an heir of Bundhu Khan and the proceedings under section 12/16 of the Act have concluded between the landlord/owner and one son of Bundhu Khan. A tenancy cannot be split between all the heirs.  The heirs inherit the tenancy as joint tenants and not as tenants in common. A decree or order passed


against  one co-tenant is binding on the other co-tenants. Hence  after conclusion of the proceedings upto the revisional stage the petitioner was also evicted. He had a right to move an application under section 16(5) of the Act. The impleadment application in a concluded proceeding could not have been allowed.

No error can be found in the impugned order. The writ petition lacks merit and  is accordingly dismissed. No order is passed as to costs.




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