Sanjay Misra, J. - (1.) NOTICES were issued to the respondent No. 2 and the office report dated 13.11.2006 reveals that undelivered cover has been received back with the remark that the same has not been claimed by the respondent No. 2, therefore, notices upon the respondent No. 2 is deemed to be sufficient. By means of this writ petition, the petitioner seeks to challenge the order dated 23.9.1999 passed by the Rent Control & Eviction Officer Kanpur Nagar whereby he has refused to declare the vacancy of the premises in question on the ground that upon the death of original tenant namely Maheshwar Dayal on 13.2.1972, tenancy devolved upon his widow Smt. Rani Devi alone. The reasoning given by the respondent No. 1 is that since Maheshwar Dayal had died prior to the enforcement of U.P. Act No. 13 of 1972 and the rent receipt was issued in the name of Smt. Rani Devi Misra alone therefore, she became a tenant of the premises in question to the exclusion of other heirs and legal representatives of the deceased tenant namely Avinash Chandra Misra, Subhash Chandra Misra and Satish Chandra Misra.
(2.) LEARNED Counsel for the petitioner has contended that the aforesaid view taken by the Rent Control & Eviction Officer is illegal in as much as upon the death of original tenant, tenancy devolved upon his heirs and legal representatives and not separately on one alone. Since the original tenancy is a single tenancy it cannot be split upon its succession to the heirs and legal representatives. In support of his contention, learned Counsel for the petitioner has placed reliance upon the decision of the Hon'ble Supreme Court pronounced in H.C. Pandey v. G.C. Paul : 1989 (15) ALR 864 (SC) and has contended that the heirs of a deceased tenant inherit the tenancy rights as joint tenants and not as tenants in common. He has further placed reliance upon a decision of the Hon'ble Supreme Court in the case of Harish Tandon v. Additional District Judge : 1995 (25) ALR 184 (SC) and has contended that upon the death of an original tenant, single tenancy devolves upon the heirs and legal representatives of the original tenant and there is no division of the premises and the heirs and legal representatives succeed to the tenancy as joint tenants. Upon a perusal of the impugned order, it appears that the Rent Control & Eviction Officer was of the view that since the original tenant died prior to the enforcement of U.P. Act No. 13 of 1972 therefore, the tenancy devolved only upon his widow. Learned Counsel for the petitioner submits that the view taken by the Rent Control & Eviction Officer is not in accordance with law as the tenancy of the original tenant Maheshwar Dayal, who died on 13.2.1972 devolved upon his widow Smt. Rani Devi Misra and his sons namely Avinash Chandra Misra, Subhash Chandra Misra and Satish Chandra Misra who are his heirs and legal representatives and were living with the original tenant late Maheshwar Dayal. The argument has force and is supported by law. In so far as the findings recorded by the Rent Control & Eviction Officer on other issues are concerned, they have neither been argued nor this Court has considered the merits of those findings. The view of the Court below that the tenancy devolved only on the widow is clearly erroneous. For the reasons stated above, the impugned order dated 23.9.1999 passed by the respondent No. 1 in so far as it has held that the tenancy devolved only on the widow cannot be sustained and is quashed. The writ petition is allowed to that extent. The matter is remitted back to the Rent Control and Eviction Officer to decide the said issue in accordance with law. Since the proceedings are pending from 1998 therefore, it is expected that the Rent Control and Eviction Officer will decide the same expeditiously without granting any further unavoidable adjournment. No order is passed as to costs.;