- (1.) PRAKASH Krishna, J. This is tenants' Writ Petition. It arises out of S. C. C. Suit No. 66 of 1982 filed by the respondent- landlords for recovery of arrears of rent, damages and eviction against Smt. Manju Devi (i. e. the predecessor-in- interest of the present petitioners ). The said suit has been decreed on 9th February, 1998 by the Judge Small Causes Court and the said decree has been affirmed in S. C. C. Revision No. 11 of 1998.
(2.) SRI M. D. Mishra, Advocate, in support of the Writ Petition has submitted that the finding of the Courts below that a sum of Rs. 1,300/- was not advanced by the tenants as advance money to the landlord is incorrect and if the said finding is recorded in favour of the petitioners, there would no default in payment of rent. The burden of proof of payment of rent lies on the landlords respondent and it has been wrongly placed upon the tenant. Lastly, he has submitted that the suit for recovery of possession, arrears of rent and damages was not maintainable before the Court of Judge Small Causes in view of Section 14 of U. P. Act No. 13 of 1972. In contra, the learned Counsel for the respondents landlord submitted that the findings recorded by both the Courts below are findings of fact and no interference is called for by this Court in exercise of its writ jurisdiction under Article 226 of the Constitution of India. I have given careful consideration to the respective submissions of the learned Counsel for the parties. Taking the first question with regard to the payment of advance rent amounting to Rs. 1,300/-, I find no illegality in the two orders of the Courts below. The said finding is based on appraisal of evidence on record. The Courts below have refused to place reliance on the statement of Sri Krishna on a finding that Smt. Manju Devi with whom the said agreement of adjustment of Rs. 1,300/- against the monthly rent has not been examined. Pratapbhan, PW-1, has denied any such agreement. The findings recorded by the Courts below are basically the findings of fact and no illegality or perversity could be pointed out by the petitioners. Although, the learned Counsel for the petitioners has submitted that the burden of proof to establish that the tenant has not paid rent lies on the plaintiff but he could not place any relevant material in support thereof. In the case in hand Pratapbhan PW-1, has appeared in the witness-box who has stated that the tenant has not paid the rent in spite of notice and demand and is in arrears since 1st April, 1979. The said statement of PW-1 has been accepted by the Courts below to be correct. Under issue Nos. 1 and 3, it has been found that the tenant has failed to pay arrears of rent. The said finding is also a finding of fact. The burden to proof the payment of rent lies on the tenant and the petitioners have failed to discharge the said burden.
(3.) LASTLY, it was urged that the petitioners are old tenants and as such there tenancy stood regularized under Section 14 of U. P. Act No. 13 of 1972. The said point was not urged before the Courts below and has been raised for the first time through an Amendment Application No. 50305 of 2007. The Suit giving rise to the present Writ Petition was filed treating the defendant as tenant. The question of regularization of tenancy was not at all in issue before the Courts below. I see no application of Section 14 of the Act in the present case. Section 14 of the Act does not bar the institution of a suit giving rise to the present Writ Petition in any manner. Section 20 of U. P. Act No. 13 of 1972 bars suit for eviction of tenant except on the grounds specified therein vide sub-section (2 ). One of the grounds for eviction is that the tenant is in arrears of rent for not less than four months, and has failed to pay the same to the landlord within one month from the date of service upon him of a notice of demand. The findings recorded by the both the Courts below is that the petitioners-tenant was in arrears of rent for not less than four months and has failed to pay the same to the landlord within one month from the date of service of notice of demand. In this view of the matter, the said argument is also not valid. It may be noted that while granting the stay order in the Writ Petition at the admission stage, an interim order was passed in favour of the petitioners in view of law laid down by the Apex Court in the case of Textile Association (India) Bombay Unit v. Bamohan Gopal Kurup and Anr. , (1990) 4 SCC 700. Few facts in this regard may be noted to appreciate the controversy involved. The Suit was instituted against Smt. Manju Devi, widow of Ranveer Singh treating her as tenant. A written statement was filed by Smt. Manju Devi, in which it was pleaded that originally her husband Ranveer Singh was a tenant and after his death besides her, Bahgwan Das, Petitioner No. 1 and Kamla Devi, petitioner No. 2, also inherited the tenancy right. Smt. Manju Devi also expired during the pendency of the suit and in her place the aforesaid two persons were substituted, who contested the Suit. The learned Counsel appearing for the respondent landlords has rightly placed reliance upon a judgment of the Apex Court in the case of H. C. Pandey v. G. C. Paul, 1989 (2) ARC 26, wherein it has been held as follows : "it is now well-settled that on the death of the original tenant, subject to any provision to the contrary either negativing or limiting the succession, the tenancy rights devolve on the heirs of the deceased tenant. The incidence of the tenancy are the same as those enjoyed by the original tenant. It is a single tenancy which devolves on the heirs. There is no division of the premises or of the rent payable therefor. That is the position as between the landlord and the heirs of the deceased tenant. In other words, the heirs succeed to the tenancy as joint tenants. In the present case it appears that the respondent acted on behalf of the tenants, that he paid rent on behalf of all and he accepted notice also on behalf of all. In the circumstances, the notice served on the respondent was sufficient. ";