- (1.) RAKESH Tiwari, J. Heard learned Counsel for the petitioner and perused the record.
(2.) THE petitioner claims to be daughter of Mohd. Mustafa Khan. She is married to one Aftab Ahmad and is residing with him at 349, Khalapar Dakshini, Muzaffarnagar. THE dispute in this writ petition is regarding rent and eviction of respondent Nos. 3 to 5 from the shop in dispute. Respondent Nos. 3 and 4 are sons of Mohd. Mustafa Khan whereas respondent No. 5 is the wife of Mohd. Mustafa Khan. All the three respondents 3 to 5 are residents of 501, Khalapar, Muzaffanagar. Thus, the petitioner is sister of respondent Nos. 3 and 4 and daughter of respondent No. 5 Smt. Shamim Bano and Mohd. Mustafa Khan. The accommodation in dispute is a commercial shop and not a commercial building. Respondent Nos. 1 and 2 filed a release application registered as P. A. Case No. 4 of 2004 against respondent Nos. 3 to 5. The release application was allowed by the Prescribed Authority vide order dated 17-1-2005. Aggrieved, respondents 3 to 5 filed appeal which was also dismissed vide order dated 16-4-2005. Against the order dated 16-4-2005 a writ petition was filed by respondent Nos. 3 to 5 which too was dismissed vide order dated 23-12-2005. Thereafter the decree was put to execution by respondent- landlords Nos. 1 and 2. In the execution proceedings the petitioner filed objections. The case of the petitioner before the Court below was that originally Jameel Khan and Sharif Khan, sons of Vilayat Khan, were tenants and one Mahabir Singh was the landlord who sold the property by virtue of a registered sale-deed to Kaushalya Devi on 31-3-1956 and Kaushalya Devi thereafter filed O. S. No. 49 of 1957 against Sharif Khan & Ors. . During the pendency of those proceedings Jameel Khan expired and his heirs and legal representatives had been impleaded to the execution proceedings. However, a compromise had been arrived at between the parties in the execution proceedings. The ease of the petitioner further was that after the death of Jameel Khan all the heirs of Jameel Khan became statutory tenants. It is further alleged that by the petitioner that she is also in possession of the, property and in the P. A. Case No. 4 of 2004 she was not impleaded as a party and as such she cannot be evicted and the application under Section 23 is liable to be dismissed. The grievance of the petitioner is that the execution proceedings are pending and without deciding the objection of the petitioner the Prescribed Authority/civil Judge (Senior Division), Muzaffarnagar has passed an order directing the Amin to dispossess her and other tenants.
(3.) THE petitioner submits that after the death of Jameel Khan all his heirs and legal representatives became joint tenants and after the death of Mohd. Mustafa Khan the petitioner being his daughter was entitled to be substituted in his place and since the petitioner was not made a party to the proceedings, the proceedings are bad and the executing Court ought to have decided the objection before passing the impugned order. THE petitioner claims to be tenant under Section 3 of U. P. Act No. XIII of 1972 and ought to have been impleaded as a party to the proceedings and the objection of the petitioner was liable to be decided before passing the impugned order. The petition has been filed on the ground that she is 'heir' as defined under Section 3 (2) of U. P. Act No. XIII of 1972. Section 3 which defines 'tenant' is as under: " (3) In this Act, unless the context otherwise requires- (a) "tenant", in relation to a building, means a person by whom its rent is payable, and on the tenant's death- [ (1) in the case of a residential building, such only of his heirs as normally resided with him in the building at the time of his death; (2) in the ease of a non-residential building, his heirs; [explanation.- An occupant of a room in a hotel or a lodging house shall not be deemed to be a tenant]";