M.P. Saxena, J. - (1.) THE facts giving rise to this petition are that Jwala Prasad, opposite party No. 2, is the father of Sri Narain, opposite party No. 3 and grandfather of Mahendra Kumar and Surendra Kumar. On 1 -9 -1971 Jwala Prasad moved an application under Section 3 of the erstwhile U.P. Act III of 1947 for eviction of the Petitioner from a shop situate in Fatehabad district Agra. It was alleged that the shop was bonafide required for establishing his aforesaid two grand sons in the business of selling Ghee. During the pendency of the application the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the new Act) came into force. Consequently the application Under Section 3 was heard as an application under Section 21 of the new Act and was rejected by the Prescribed Authority on 16 -8 -1973. Jwala Prasad filed an appeal before the District Judge, Agra, under Section 22 of the new Act. It was transferred to the court of the IV Additional District Judge, Agra. While the appeal was pending there a family partition took place through registered deed dated 29 -12 -1973 and the shop fell in the share of Sri Narain, opposite party No. 3. Therefore, on 14 -10 -1974 Sri Narain moved an application before the learned Additional District Judge for leave to continue the appeal. The Petitioner filed objections. The learned Additional District Judge allowed the application on the ground that at the time the application under Section 3 was presented Jwala Prasad was Karta of joint Hindu family consisting of himself, his son and two grand sons. After partition Sri Narain, being the father of Mahendra Kumar and Surendra Kumar, became Karta of the family & was entitled to proceed with the appeal. According to him, it was not a case of substitution on assignment but it was a case of impleading a person so as to continue the proceedings and it could be permitted under Section 151, Code of Civil Procedure. The operative portion of the order passed by him runs as follows: I, therefore, allow this application to the extent that Sri Narain may be impleaded as one of the co -Appellants to continue the proceedings. Regarding factum of partition, the parties are directed to put in their proofs.... A date was fixed for filing documents and affidavits. This writ petition has been filed for quashing the said order.
(2.) THE learned Counsel for the Petitioner has vehemently contended that the application dated 14 -10 -1974 moved by Sri Narain was in substance an application for substitution which is not warranted by any provision of the new Act. According to him, the Act permits substitution only of heirs of a deceased party vide Section 34(4). It is also urged that the provisions of the Code of Civil Procedure have limited application to cases under the new Act. Order I Rule 10 and Order 41 Rule 20 which permit addition of a party are not applicable to cases under this Act. Aid of Section 151 of the Code of Civil Procedure can not be invoked for that purpose -because this provision does not confer any new powers but simply saves inherent powers of the court. In this connection reliance is placed on the case of Arjun Singh v. Mohindra Kumar : AIR 1964 SC 993. I have given my anxious consideration to the whole matter and in my judgment the contention does not carry much force. It may be stated at the very outset that Sri Narain is alleged to have received the shop in partition and his position is not that of transferee who cannot apply for release under provisions of the new Act unless a period of 3 years has expired from the date of transfer. In V.N. Sarin v. Ajit Kumar Palai : AIR 1966 SC 432 it has been held that partition really means that whereas initially all the co -sharers had subsisting title to the totality of the property of the family jointly that joint title is transformed by partition into separate title of the individual coparceners in respect of several items; of property allotted to them respectively. As this is true nature of partition, the partition of an undivided Hindu family property cannot mean transfer of the property to the individual co -parceners.
(3.) IN order to judge the merit of the main contention it will be proper to refer to the relevant provisions of the new Act. Section 34 relates to the powers of various authorities and procedure to be followed by them. It states that the District Magistrate, the Prescribed Authority or any (appellate or revising authorities) shall, for the purpose of holding any enquiry or hearing (in appeal or revision) under this Act, have the same powers as are vested in the civil court under the Code of Civil Procedure, 1908, when trying a suit in respect of the following matters, namely, (a) to (f).... (g) In other matters which may be prescribed.;