- (1.) THIS revision petition is directed against the order dated 1. 04. 1989, passed by the learned Addl. District Judge, No. 6, Jaipur City, Jaipur, in Civil Suit No. 33/1989.
(2.) BEING aggrieved with the order passed by the learned Addl. District Judge, petitioners defendant filed this revision petition before this court. A suit was instituted by Smt. Noor Jahan, and Smt. Bashiran, against the Nasiruddin, for the partition of the property namely 'neeli Haveli'. During the pendency of the suit, Nasiruddin, died and the petitioners are the Legal representatives of the deceased Nasiruddin, Smt. Bashiran, has also died and non-petitioners No. 2 to 4 are the legal representatives of the deceased Bashiran. It will not be out of place here to mention that non-petitioner No. 5 to 8 who are also party in this suit, have filed a suit for the partition of the property against the petitioners No. 1 to 8 on the ground that they are the co-owners of the property and they have succeeded Nasiruddin, as co-owners. During the pendency of the suit, an application was moved by the present petitioners for the amendment of the written statements or the ground that the property has been gifted on 18. 06. 1965, to petitioners No. 1 to 4, It was submitted by Mr. Kasliwal, and Mr. P. D. Mathur, who are appearing on behalf of the non-petitioners that other suit is pending in which defendant non-petitioners No. 5 to 8, have prayed for the partition of the family property. On the other hand, Mr. Lodha, learned counsel for the petitioners submits that the right of the legal representatives and the independent character of the legal representatives merge in the same persons when he is me brought on the record and the person in whose favour both the rights have merged have a right to raise any plea which is not necessary in the facts and circumstances of the case in any character whatsoever. It was also submitted that the legal representatives of the petitioners were not party in the suit for partition which was filed by Bashiran and Noor Jahan. It was also submitted that the petitioners No. 1 to 4, are having the independent character as they based their claim on the gift which is said to have been made on 18. 06. 1965. It is an admitted position that the suit was filed sometime in the year 1974 and the petitioners were not the party in that suit. On the other hand, Mr. Mathur, has cited before me the case of J. C. Chatterjee & others Vs. Shri Shrikishan Tandon and another, (1 ). P. 2526, in which it was held as under :- "a person remaining in occupation of the premises let to him after the determination of or expiry of the period of the tenancy is commonly, though in law not accurately, called a statutory tenant" Such a person is not a tenant at all, he has no estate or interest in the premises occupied by him. He has merely the protection of the statute in that cannot be turned out so long as he pays the standard rent and permitted increases, if any, and performs the other conditions of the tenancy. His right to remain in possession after the determination of the contracted tenancy is personal; it is not capable of being transferred or assigned, and devolves on his death only in the manner provided by the Statute. On behalf of a statutory tenant pending eviction suit, or appeal his heirs and legal representatives brought on record cannot claim the status of tenant within S. 3 (vii) of the Act, as no rent is payable by them. If the rent was paid by them during the course of proceedings, it was not because they were recognised as tenants by the landlord but because the amount was received by him without prejudice his right under the order of the court. Therefore, the only contentions that they could put forward in the second appeal by the landlord were the contentions appropriate to their representative character and not one which was personal to the deceased. The defence of want of bonafide requirement by the landlord was personal to the statutory tenant and on his death the same is not open to his legal representatives. "
(3.) MR. P. D. Mathur, has also cited before me the case of Ram Ugrah Ojah and another Vs. Ganesh Singh (2 ). On the other had, Mr. Lodha, learned counsel for the petitioners has also cited before me the case of Damadilal and ors. Vs. Parashram & ors (3 ). Mr. Lodha, states that the of Damadilal & ors. Vs. Paras Ram & ors. (Supra ). Mr. Lodha, has further cited before me the case of Smt. Gian Devi Anand Vs. Jeevan Kumar and ors. (4 ). Mr. Lodha, submits that Hon'ble Supreme Court has followed the case of Damadi Lal Vs. Parashram (Supra) and not followed the case of J. C. Chatterjee Vs. Shri Kishan Tandon (Supra ). Mr. R. C. Kasliwal learned counsel for the non-petitioner No. 2 to 5 has submitted that his clients should not be compelled to letigate the same matter in 2 different suits because the question in-controversy will be the same. Mr. Kasliwal, further submits that the matter is pending since long and it will amount to re- opening of the case. Mr. Kasliwal, further submits that as far as the question of gifts concerned, petitioner No. 1 to 4, have already filed a suit and this plea cannot be raised now in a other suit. However, Mr. Lodha, controverted this position. It is not necessary for me to go into the controversy. ;