Sibghat Ullah Khan, J. - (1.) RESPONDENT No. 2 died on 8.10.1995. First a substitution application was filed by the petitioner to bring on record his legal representatives. Thereafter another application was filed by petitioners on 10.2.2004 (Application No. 24732 of 2004) for impleadment of Suresh Chand Jain as respondent No. 2 had sold his interest in the property in dispute to him on 3.11.1993. Shri Madhav Jain learned Counsel has filed Vakalatnama and counter -affidavit on behalf of purchaser S.C. Jain. The transfer is not disputed. Accordingly, the impleadment application (No. 24732 of 2004) is allowed. Substitution application is rejected as infructuous. Heard Sri Manish Goyal, learned Counsel for petitioner and Sri Madhav Jain learned Counsel for purchaser/respondent S.C. Jain.
(2.) THIS is tenant's writ petition. Respondent No. 2 Sri Bal Kishan Dass Seth filed SCC Suit No. 1591 of 1979 against petitioner -tenant and Virendra Dass Seth his (plaintiff's) real brother who is respondent No. 3 in the writ petition. In the plaint it was alleged that petitioner was tenant of the shop in dispute since before April 1966, that till then plaintiff Bal Kishan Dass, proforma -defendant Virendra Dass Seth and Prayag Dass Seth who are real brothers were owners of the property in dispute, however, on 22.5.1966 a partition took place among the brothers and shop in dispute fell in the share of the plaintiff Bal Kishan Dass and that all the tenants including petitioner were informed about the said partition. It was further stated that for a short time plaintiff authorised his brother Virendra Dass Seth proforma -defendant to realise the rent. In the plaint it was stated that defendant was defaulter and he had also denied the title of the plaintiff. Petitioner filed written statement denying sole landlordship of the petitioner. He asserted that alongwith plaintiff his two brothers i.e. Virendra Dass Seth defendant No. 2 and Prayag Dass Seth were also landlords. Trial Court/JSCC, Agra held that all the three brothers were the landlords and no partition had taken place. Thereafter, Trial Court held that there was no relationship of landlord and tenant in between plaintiff and defendant No. 1 i.e. the petitioner. The last finding was clearly illegal. Even if all the three brothers were landlords, it could not be said that there was no relationship of landlord and tenant in between one of the brothers/joint owners/plaintiff and the tenant petitioner. In respect of default Trial Court found that tenant was default however, as he had deposited the entire arrears of rent interest and cost on the first date of hearing hence he was entitled to the benefit of section 20(4) of U.P. Act No. 13 of 1972. The Trial Court ultimately through judgment and decree dated 17.12.1980 dismissed the suit for eviction. In respect of the rent deposited by the tenant in the suit Trial Court directed that either plaintiff or defendant No. 2 or any other person who was entitled to receive the rent could withdraw the rent. Against judgment and decree dated 17.12.1980 plaintiff Bal Kishan Dass filed Civil Revision No. 55 of 1981 (ought to be SCC revision). VIth A.D.J., Agra on 5.10.1982 allowed the revision ex -parte as no one had appeared on behalf of tenant -respondent. Thereafter, petitioner filed restoration application which was rejected on 22.4.1983. Thereafter, petitioner filed a review petition which was registered as Misc. Case No. 21 of 1982. The review petition was also dismissed on 27.5.1983 hence this writ petition.
(3.) IN para -2 of the plaint it was clearly stated that plaintiff had to reside at Delhi in connection with his service and therefore he directed the tenant to pay rent to landlord's elder brother Virendra Dass Seth defendant No. 2 and defendant No. 2 thus for some time collected rent on behalf of the plaintiff. In the plaint nothing was said regarding partition among plaintiff and his brothers including defendant No. 2. In the written statement, copy of which is Annexure -5 to the writ petition it was stated that defendant No. 2 was the landlord who collected the rent from the tenant -defendant No. 1. It has further been stated in paras 15 and 16 of the written statement that there was dispute between plaintiff and defendant No. 2 about title of the property hence defendant several times asked the defendant No. 2 about the same and that in view of the dispute tenant deposited the rent under section 30(2) of the Act. In para -17 it was clearly stated at the end of the said para that: Moreover, the property being the ancestral property of plaintiff defendant No. 2 and their elder brother and their sons the notice is also invalid and the suit is bad for want of valid notice by all the co -owners.;