- (1.) The decree holders have filed this petition for quashing the order dated 18th February, 2011 passed in Execution Case No.1 of 2002 arising out of SCC Suit No.25 of 1995 (Mohd. Ismail Vs. Abdul Sattar). It transpires from the records of the writ petition that SCC Suit No.25 of 1995 was filed by Mohd. Ismail for ejectment of Abdul Sattar and for recovery of arrears of rent. The suit was contested by Abdul Sattar in which the relationship of landlord and tenant was denied and it was claimed that his wife is the co-sharer of the property. During the pendency of the suit, Abdul Sattar died and respondent nos.2 to 5 were substituted as heirs and legal representatives of Abdul Sattar. The suit was decreed by the Judge, Court of Small Causes on 27th February, 2002 against which a Revision was filed under Section 25 of the Provincial Small Cause Courts Act, 1887 which was also dismissed on 17th November, 2002. The tenants filed Writ Petition No.52774 of 2002 for assailing these orders passed by the Judge, Court of Small Causes and the Revisional Court, which petition was ultimately dismissed on 13th August, 2010.
(2.) Execution Case No.1 of 2002 was filed by the decree holders as the judgment debtors did not comply with the decree. During the pendency of the case, the decree holder died and respondent no.6-Mohd. Israil was substituted as his heir and legal representative. The Execution Case proceeded and a writ for possession was also issued on 21st August, 2010. An application was then filed by the judgment debtors for staying the proceedings of the Execution Case since an order of status quo had been passed by the High Court in Second Appeal No.607 of 2009 in which the issue relating to the share of the mother of the judgment debtors regarding the property was also involved and the Executing Court stayed further proceedings by the order dated 18th February, 2011. It is this order that has been assailed in this petition.
(3.) Sri M.A. Qadeer, learned Senior Counsel appearing for the petitioners has submitted that this issue relating to mother being a co-sharer of the property was raised by the tenants in SCC Suit as also in the Revision. The High Court in its judgment and order dated 13th August, 2010 in the writ petition filed by the tenants for assailing these two orders, had also dealt with the issue relating to the share of Saira and, therefore, mere pendency of the Second Appeal and the order of status quo passed by the High Court in the Second Appeal arising out of the suit, should not have been taken into consideration by the Executing Court for staying further proceedings in the Execution Case. He has, in this connection, placed before the Court the judgment and order dated 13th August, 2010 of the High Court passed in Writ Petition No.52774 of 2003 which is quoted below: Heard learned counsel for the parties. This petition by the tenant is directed against concurrent orders dated 27.2.2002 and 7.11.2003 by which a suit for arrears of rent and eviction filed by the respondent landlord has been decreed by both the courts below. The respondent landlord instituted a Small Causes Suit No. 25 of 1995 against the petitioner's father, Abdul Sattar for arrears of rent and eviction inter alia with the allegations that he was a tenant of the disputed shop situated in Mirch Mandi on behalf of the landlord at Rs.100/-per month but he defaulted in payment of rent from 1.6.1990 and inspite of several demands, he did not pay forcing him to send a registered notice dated 28.9.1995 demanding arrears of rent within the notice period and for vacating the disputed shop. Despite service of notice neither the rent was paid nor the premises vacated. Abdul Sattar filed his written statement alleging that his wife had a share in the disputed shop and with her consent, he was paying Rs.100/-per month as rent, but after her death, he alongwith his children became co-owners and could not be evicted. It was further asserted that a partition suit was pending and as it involved genuine dispute of title, the matter should be relegated to the regular courts under Section 23 of the Act. During pendency of the suit, Abdul Sattar died whereupon the present petitioners were substituted and they filed another written statement that partition suit no.165 of 1990 had been decreed and therefore they are not liable for eviction. The trial court after going through the evidence of the parties, held that Abdul Sattar and thereafter the petitioners were the tenants of the disputed premises and no genuine question of title was involved and since they had defaulted in payment of rent, it decreed the suit. During pendency of the revision, it was brought on record that against the partition decree, appeal preferred by other co-owners had been dismissed and therefore now the matter should be relegated to the regular courts. The revisional court, relying upon the evidence on record, held that the possession of the petitioners is that of a tenant and until and unless it is proved that the petitioners became sole owners of the disputed property, their possession would remain as that of a tenant. Learned counsel for the petitioner has urged that his father did not remain a tenant and after the death of his mother, as he became co-sharer and the findings otherwise recorded by the courts below are vitiated. No doubt, in a partition Suit No. 165 of 1990, Saira, petitioner's mother, daughter from the second out of the three wives of Mohd. Ibrahim was held to be a fringe co-sharer but the issue is still sub judice and no final decree has yet been drawn. However, assuming it to be correct, it has to be examined in these factual background, whether the doctrine of merger will apply and the tenancy would stand determined cloathing him with the rights and obligation of the lessor. The petitioners have heavily relied upon the decision of the Apex Court in Abdul Alim vs. Sheikh Jamal Uddin Ansari & others, 1998 9 SCC 683 and Imambi vs. Azeeza Bee, 2000 9 JT 562 to contend that the suit was not maintainable while the respondents have relied upon a later decision of the Supreme Court in T. Lakshmipathi & others vs. P.Nithyananda Reddy & others, 2003 AIR(SC) 2427. All the decisions are of two learned Judges, therefore, in view of the Full Bench decision of our Court in the case of UPSRTC vs. State Transport Authority, 1977 AIR(All) 1 and the decision of this Court in the case of State of U.P. vs. Santosh Kumar,2003 96 FLR 637, it would be appropriate to examine the latest decision which is also exhaustive and gives more than one reason for its conclusions. The Apex Court in the case of T. Lakshmipath was considering a question whether a suit for eviction under a rent control legislation would be maintainable against a tenant who has in the mean time acquired co-ownership of the disputed premises. After considering large number of its earlier decisions, including of the Privy Council and also after considering the doctrine of merger and frustration, it went on to hold that until the interests of the lessee and lessor do not converge the whole of the property at the same time and in the same right, the suit would be maintainable and went on to uphold the decree of eviction. It is evident from the record that there are dozens of co-sharers and whatever the extent of the interest of the respondent, that still survives and therefore there is no coalescence of the two interests in the petitioner. Even on facts, the tenancy stood proved. Abdul Sattar, father of the petitioner has admitted in the written statement that he was the respondent's tenant at Rs.100/-per month with a rider that his wife was a co-sharer. He had filed an injunction Suit No.616 of 1990 (Abdul Sattar vs. Ismail) where in the plaint and then in his testimony he admitted himself to be a tenant at Rs.100/-per month of the respondent. These categorical assertions have neither been explained nor denied in substance and they will bind the petitioners. Both the courts, after careful shifting of evidence have recorded categorical findings of fact that petitioners are tenants of the disputed accommodation. The petitioners themselves filed application under Section 30 of the Act for deposit of rent in favour of the respondent and have continued to do so. Therefore, it cannot, but be said, that earlier their father and now they are tenants of the disputed accommodation. The courts below have rightly applied the law and decreed the suit. No other point has been urged. For the reasons above, this is not a fit case for interference under Article 226 of the Constitution of India. Rejected.;