- (1.) V. K. Shukla, J. This is tenant's writ petition questioning the validity of the decision dated 7. 9. 2004 passed by the Judge Small Causes, Allahabad in SCC Suit No. 139 of 1999 decreeing the suit for eviction and order of its affirmance in J. S. C. C. Revision No 685 of 2004 passed by the Additional District Judge, Court No. VIII, Allahabad.
(2.) IN Civil Misc. Writ Petition No. 49844 of 2008 tenant has questioned the validity of the order dated 17. 9. 2008 wherein application for staying the execution of the decree has been rejected as being not maintainable. Brief background of the case is that late Brij Bhushan Mishra has been tenant of the ground floor of House No. 257/127, Mohatsimganj, Allahabad. Original landlord of the said premises in question was Yogendra Kumar Vasnney and said Yogendra Kumar Vashney sold the house in question to one Harish Mathur who had filed release application under section 21 (1) (a) of U. P. Act No. 13 of 1972. During continuance of the aforementioned proceedings, property in question including property in tenancy of the petitioner was sold by erstwhile landlord vide registered sale deed dated 18. 6. 1999, in favour of Smt. Sunta Sarbadhikari and Smt. Gauri Sarbadikari who were also co-existing tenant in whose favour said sale deed in question has been registered. In the proceedings under section 21 (1) (a) of U. P. Act No. 13 of 1972, which were on going, the other tenant who subsequently become landlord was also party and therein statement was made that property in question has been sold and in this regard proceeding in question were dropped. New landlords who were earlier tenant on the basis of the said sale deed on 31. 7. 1999, sent notice to petitioner informing and intimating that house in question has been purchased. Thereafter on 26. 10. 1999 notice was sent determining tenancy and to the said notice, reply was sent on 4. 11. 999 by tenant. In paragraph 6 of the reply, it was categorically mentioned that rent uptil September, 1999 has already been deposited in Misc. Case No. 76 of 1988 and further in the event copy of the sale deed was sent w. e. f. October, 1999 rent shall be payable to the landlord. Thereafter, J. S. C. C. Suit No. 139 of 1999 had been filed on the ground that petitioner has been in arrears of rent. On filing of aforementioned suit, petitioner filed his written statement and also proceeded to comply with the provision as contained under section 20 (4) of U. P. Act No. 13 of 1972 by depositing the amount provided for under the aforementioned provision. However, it was mentioned by him that in case plaintiff proves their title, qua premises in question, in spite of the fact that rent has been paid in Misc. Case No. 24 of 1988, even then said amount, tenant is prepared to pay. In the said proceeding so undertaken, amendment was also introduced by the landlord contending therein that deposit in question was conditional deposit, as such benefit of section 20 (4) of U. P. Act No. 13 of 1972 cannot be accorded. In the said suit, Prescribed Authority on the basis of material which was adduced, framed three issues (i) as to whether tenant was liable to be evicted on the basis of being arrears of rent (ii) as to whether by making construction tenant has diminished the value of property in question (iii) Tenant, having denied the title is liable to be evicted on the said ground. During this period property in question has been sold to Ashwani Kumar Verma and Anil Kumar Verma. Trial Court has recorded categorical finding on issue No. 1 that deposit under section 20 (4) of LJ. P. Act No. 13 of 1972 was conditional one and as such benefit of section 20 (4) of U. P. Act No. 13 of 1972 shall not be accorded. On issue No. 2 also it has been mentioned that suit was liable to be decreed. On issue No. 3 also finding was given in favour of the landlord. Against the said order revision in question had been filed and Revisional Court qua issue No. 1 affirmed the said finding. At this juncture Civil Misc. Writ Petition No. 68572 of 2005 has been filed and therein conditional interim order was passed by this Court and matter had been pending before this Court. Counter affidavit has been filed on behalf of the Ashwani Kumar Verma and Anil Kumar Verma. To the same rejoinder affidavit has been filed appending therein application moved under Order XXII, Rule 10 C. P. C. and its rejection order dated 31. 8. 2005.
(3.) DURING pendency of aforementioned writ petition, petitioner Brij Bhushan Mishra died and substitution application had been made to substitute his legal heirs and representative. Said matter was dismissed in default and net effect of the same was that interim order accorded in favour of petitioner was not there. Thereafter decree in question was sought to be executed by Ashwani Kumar Verma and Anil Kumar Verma. In the execution proceeding, legal heirs of Brij Bhushan Mishra had not been substituted and execution was being pressed, and application raising objection to this effect was moved in this regard and same was rejected, then Civil Misc. Writ Petition No. 49844 of 2008 had been filed, and second writ petition has been directed to be clubbed with the first writ petition and thereafter both the writ petition are being taken up together and are being decided together with the consent of the parties. Sri V. P. Mishra, Advocate appearing for the legal heirs of petitioner, Brij Bhushan Mishra contended with vehemence that in the present case view, which has been taken by both the Courts below are totally perverse and unreasonable and said view is not at all sustainable in view of the admitted position and coupled with this suit itself was not maintainable, as on the date of institution of the suit, tenant was not at all in arrears of rent of four months as payment had admittedly been made to earlier landlord and further on the first date of hearing entire amount had been deposited and in the facts case same cannot be accepted as conditional deposit, and there has been no denial of title rather genesis of derivative title was being asked for as such entire proceedings based on the same are liable to be quashed.;