- (1.) Defendant Nos. 2 and 3 of SCC Suit No. 18 of 1985 that had been filed by Radhika Prasad (since deceased) for ejectment of the defendants and for recovery of arrears of rent for the reason that defendant No. 1 had sub-let the premises to defendant Nos. 2 and 3, have filed this petition with the following reliefs : (a) Issue a writ, order or direction in the nature of mandamus declaring execution case No. 4 of 2010, Vijai Kumar v. Raj Bali and others, pending in the Court of Civil Judge (J.D.) Mirzapur, as legally incompetent, an abuse of the process of the law and Court, void and unenforceable as the same is arising out of the judgments and decrees of the Court below passed in SCC Suit No. 18 of 1985, Radhika Prasad Agarwal v. Ram Prasad Tiwari and others, which had already abated on account of non-substitution of the heirs and legal representatives of the deceased tenant Kamla Devi. (b) Issue a writ, order or direction in the nature of mandamus declaring that the Civil Judge (J.D.) and Additional District Judge IV had lacked in inherent jurisdictions in passing the judgments and decrees dated 8.2.2008 (Annexure 4) and 23.9.2009 (Annexure 5) respectively in suit No. 18 of 1985 followed by SCC Revision No. 33 of 2008 in that suit No. 18 of 1985, had already abated in law for want of substitution of legal heirs and representatives of the deceased tenant Ram Prasad Tiwari/Kamla Devi. (c) Issue a writ, order or direction in the nature of mandamus declaring that the Court of Judge Small Causes has jurisdiction to evict a tenant, from the demised building on one or more of the grounds as contemplated in Section 20(2) of U.P. Act No. 13 of 1972 whose tenancy has been determined by the landlord as per Section 20(1) of the said Act read with Section 106 of T.P. Act, but it has no jurisdiction to pass a decree of eviction against a person who is not the tenant including the petitioners who are admittedly not the tenants. (d) Issue a writ, order or direction in the nature of mandamus declaring that the judgment and decree dated 8.2.2008 passed by Civil Judge (J.D.) Mirzapur (Annexure 4) and that of Additional District IV, Mirzapur dt. 23.9.2009 (Annexure 5) as void, total nullity, legally unenforceable for having been passed beyond the ambit of Section 20(1)(2) of U.P. Act No. 13 of 1972 and also for having passed in the suit which had already abated in law. The aforesaid SCC Suit No. 18 of 1985 was decreed by the Judge, Court of Small Causes on 8th February, 2008 against which the petitioners filed a Revision under Section 25 of the Provincial Small Cause Courts Act, 1887 (hereinafter referred to as the '1887 Act') which Revision was dismissed by the judgment and order dated 23rd September, 2009. The decree holder put the decree into the execution and the case was registered as Execution Case No. 4 of 2010. Defendant Nos. 2 and 3, who were found to be sub-tenants of defendant No. 1 to whom the premises was given on rent by the plaintiff, have filed this petition with the allegation that the suit stood abated as the widow of the tenant-defendant No. 1, who was substituted as the heir and legal representative of the tenant on his death, also died during the pendency of the suit and her heirs and legal representatives were not brought on record and consequently the execution proceedings cannot proceed.
(2.) It transpires that Radhika Prasad Agarwal (since deceased) had filed SCC Suit No. 18 of 1985 against Ram Prasad Tiwari (defendant No. 1), Raj Bali Singh (defendant No. 2/petitioner No. 1 who has been substituted by his legal heirs and representatives) and Yaduraj Singh (defendant No. 3/petitioner No. 2) for ejectment and recovery of arrears of rent with the allegation that the house had been given on rent to defendant No. 1-Raj Bali Singh but rent with effect from 1st January, 1978 to 31st August, 1984 had not been paid; that defendant No. 1 permitted defendant Nos. 2 and 3 to occupy the house even though they were not members of the family and that the notice dated 8th April, 1985 was sent to defendants for termination of the tenancy and for arrears of rent but despite termination of the tenancy, the defendants did not vacate the house and nor did they pay the arrears of rent.
(3.) A written statement was filed on behalf of defendant No. 1 in which he admitted that he had initially allowed defendant Nos. 2 and 3 to occupy the accommodation let out to him by the plaintiff and subsequently sub-let it to them on monthly rent of Rs, 40/- and Rs. 30/- respectively. A written statement was also filed on behalf of defendant Nos. 2 and 3. It was stated by them that the plaintiff was not the owner of the house; that defendant Nos. 1 was not the tenant and they were never allowed by defendant No. 1 to occupy the accommodation and that defendant Nos. 2 and 3 were residing in the house as owners.;