- (1.) S. U. Khan, J. Inspite of sufficient service no one has appeared on behalf of landlord respondent Nos. 3 and 4.
(2.) HEARD learned Counsel for the petitioners. This is tenants writ petition arising out of suit for eviction filed by respondent Nos. 3 and 4 against original tenant Islam Ahmad (since deceased and survived by the petitioners) in the form of SCC Suit No. 110 of 1980, JSCC/i Additional Civil Judge, Etah through judgment and decree dated 22-2-1986 decreed the suit. Revision filed against the said judgment and decree being SCC Revision No. 18 of 1986 was dismissed on 17-5-1988 by A. D. J. /special Judge, (E. C. Act), Etah hence this writ petition by tenants. Building in dispute is covered by U. P. Act No. 13 of 1972. Eviction was sought on the ground of default in payment of rent. Initially one Sri R. D. Jain was the owner landlord of the house in dispute who inducted Islam Ahmad as tenant in the house in dispute. Admitted rate of rent is Rs. 40/- per month. Sri R. D. Jain has died. It appears that his sons i. e. Sri A. Jain and Sri P. C. Jain had predeceased him. In this manner, Sri R. D. Jain on his death left behind the widows of his two predeceased sons i. e. Brahmi Devi W/o P. C. Jain plaintiff No. 1/respondent No. 3 and Smt. S. Kumari widow of the other predeceased son of Sri R. D. Jain i. e. Sri A. Jain. Respondent No. 4/plaintiff No. 2 Sanjay Kumar is son of respondent No. 3 Brahmi Devi.
(3.) ACCORDING to the tenant there was a dispute in respect of right to collect the rent in between the two widows i. e. Smt. Brahmi Devi and Smt. S. Kumari hence he deposited the rent under Section 30 (2) of U. P. Act No. 13 of 1972. Plaintiffs claimed that Sri R. D. Jain had executed a registered Will dated 27-12- 1974 in favour of plaintiff No. 2 Sri S. Kumar and as he was minor hence plaintiff No. 1 his mother Smt. Brahmi Devi became the landlord of the house in dispute. The Courts below found that Will was valid hence plaintiff No. 2 was the owner and plaintiff No. 1 was the landlord and tenant had no right to deposit the rent under Section 30 (2) of the Act. The trial Court held that amount deposited under Section 30 (2) of Act could not be taken into consideration for the purposes of Section 20 (4) of the Act. It is purely a lacuna in the drafting of the said sub- section and the Supreme Court in the authority in Kailash Chandra & Anr. v. Mukundi Lal & Ors. , 2002 (46) ALR 704 (SC) has clarified that whether the deposit is made under Section 30 (1) or under Section 30 (2) of the Act, the same is to be adjusted while depositing the amount under Section 20 (4) of the Act provided that the deposit under Section 30 is valid. Revisional Court held that the tenant had deposited the rent under Section 30 of the Act irregularly and not month to month. This will not make any difference. If at the time of notice entire rent had been validly deposited then notice demanding the rent under Section 20 (2) (a) of the Act was not valid and tenant could not be said to be defaulter. Sri R. D. Jain on his death had left behind three heirs. It was quite natural that it created doubt in the mind of the tenant regarding the person or the persons who were entitled to collect the rent. In respect of Will, finding has been recorded in the impugned judgments that it is valid. That finding is binding upon the tenants petitioners. However prior to it, it was risky for the tenant to accept only the plaintiff/respondent Nos. 3 and 4 as his landlord and disclaim or deny the landlordship of Smt. S. Kumari.;