Rakesh Tiwari, J.
1. Heard counsels for the parties and perused the record.
2. Counter-affidavit was filed on 13.1.2006 but no rejoinder-affidavit has been filed till date rebutting the allegations contained in the counter-affidavit.
3. The case of the petitioner is that Sri Tulsi Ram father of the petitioner Sri Satish Chandra had taken the accommodation in dispute from the father of the present respondent-landlord. After the death of Sri Tulsi Ram, the tenancy devolved upon Smt. Surma Devi, his widow and after her death the tenancy devolved upon the legal heirs S/Sri Satish Chandra, Raj Kumar and Ashok Kumar. The burden of proof was upon Sri Satish Chandra to establish that only he was living with his mother at the time of her death and that his other two brothers had been living separately; but in his written statement, he did not state anywhere that they were living separately. Smt. Surma Devi died in 1984 and there is no whisper since when two brothers started living separately and acquired their own houses. The Court also found from the statement of Sri Satish Chandra, the petitioner that his statement is silent as regards the aforesaid facts and that the notice dated 12.7.2000 is the basis of the suit and not the notice dated 10.8.1983. The Court held that tenancy would devolve from Sri Tulsi Ram and not from Smt. Surma Devi. After appreciating the evidence and pleadings of the parties the Court decided issue Nos. 2 and 3 in this regard as under:
Lohdk;Z :Ik ls oknxzLr lEifRr izfroknhx.k ds firk Jh rqylhjke dks fdjk;s ij nh x;h xbZ Fkh rqylhjke ds e`R;q ds Ik'pkr mudh fo/kok lqjeknsoh bl lEifRr esa fdjk;snkj gqbZ vkSj Jherh lqjeknsoh dh e`R;q ds Ik'pkr lnHkkfod vuqdze esa muds rhu iq= ;kuh lrh'kpUnz] jktdqekj o v'kksd dqekj muds mRrjkf/kdkjh gq, A ;g rF; fd lwjeknsoh ds e`R;q ds le; dsoy lrh'kpUnz gh muds lkFk jgrk Fkk lkfcr djus dk Hkkj lrh'kpUn izfroknh la[;k 1 ij gS A lrh'kpUnz us vius fyf[kr dFku esa dsoy ;g vafdr fd;k gS fd lwjeknsoh dh e`R;q gks pqdh gS ijUrq ;g dgh Hkh vafdr ugh fd;k gS fd mlds nks HkkbZ dc ls lwjek nsoh ls vyx jg jgs Fks A Jherh lwjek nsoh dh e`R;q dh frfFk Hkh Li'V ugh dh xbZ gS vkSj 'sk'k nks Hkkb;ksa dk ugh jguk Hkkh Li'V ugh fd;k x;k gS A Jherh lwjeknsoh dh e`R;q 1984 es gksuk fy[kk gS A ijUrq ;g mYys[k dgha ij ugh fd;k gS fd o'kZ 1984 ls iwoZ gh 'ks'k nksuks Hkkb;ks viuh Loa; dh lEifRr vftZr dj yh Fkh ;k ugh vkSj ;fn dj yh Fkh rks dc vkSj dgkW ls A lrh'kpUnz Mh0 Mcyw 1 us vius 'kiFki= es dgh ij mYys[k ugh fd;k gS fd lwjeknsoh dh e`R;q ds le; mlds nksuks HkkbZ vyx jgrs Fks] fdl edku es jgrs Fks A ;gkW rd fd iwjs 'kiFki= esa mlus ;g Hkh mYys[k ugh fd;k fd og vdsyk gh Jherh lwjeknsoh dh e`R;q ds le; ls edku es jg jgk Fkk A blfy, bl rF; dks lk{; }kjk lkfcr ugh fd;k x;k gS fd Jherh lwjeknsoh dh e`R;q ds le; dsoy izfroknh la[;k 1 gh muds lkFk jgrk Fkk ;g lgh gS fd fnukad 10-8-83 dks tks uksfVl nh x;h gS og dsoy izfroknh la[;k 1 ,oa mldh ekrk Jherh lwjek nsoh dks lEcksf/kr gS A ijUrq ;g uksfVl bl eqdnes dk vk/kkj ugh gS bl eqdnes dk vk/kkj fnukad 12-7-2000 dks fn;k x;k uksfVl gS A izfroknh la[;k 1 dk ;g cpko ugh gS fd muds firk rqylhjke ds e`R;q ds le; 'ks'k nks HkkbZ fookfnr fdjk;snkjh okyh lEifRr es ugh jgrs Fks A vius 'kiFki= es lrh'kpUnz Mh0 Mcyw 1 us ;g Lohdkj fd;k gS fd izkjEHk es MkypUnz iq= dYyw o rqylhjke iq= MkypUnz fdjk;snkj Fks izfroknh ds nknk o mlds firk rqylhjke o rk;k Jhlh dh e`R;q gks pqdh gS vkSj mudh ekrk Jherh lwjeknsoh Loa; izfroknh la[;k 1 o mlds nks HkkbZ jktdqekj rFkk v'kksd dqekj gks x;s A fof/kd fLfFkfr ;g gS fd rqylhjke ds e`R;q ds le; mRrjkf/kdkj 'kq: gqvk ekuk tk;sxk u fd Jherh lwjek nsoh dh e`R;q ds le; A rqylhjke ds e`R;q ds i'pkr Loa; ds lkFk&lkFk; vius nksuks HkkbZ;ks dks Hkh mRrjf/kdkj esa fdjk;snkjh okyh lEifRr esa tkuk vius 'kiFki= es izfroknh la[;k 1 lrh'kpUnz us ;g Lohdkj fd;k gS A vf/kfu;e dh /kkjk 3 ssssd esa fdjk;snkjh dks ifjHkkf'kr fd;k x;k gS ftles mYys[k gS fd fdjk;snkj dh e`R;q ds Ik'pkr vkoklh; Hkou esa os O;fDr mRrjkf/kdkjh gksaxs tks lkekU; :Ik ls mlds e`R;q ds le; jgrs Fkas A bl ifjHkk'kk ls Li'V gS fd rqylhjke dh e`R;q ds le; tks Hkh O;fDr muds lkFk jgrs Fks mUgsa ;g lEifRr crkSj fdjk;snkjh mRrjkf/kdkj es feyh gS A Loa; Mh0 Mcyw 1 lrh'kpUnz us gh vius 'kiFki= es bl rF; dks Lohdkj fd;k gS fd rqylhjke ,oa muds nknk rFkk rk;k dh e`R;q gksus ds i'pkr bl edku dh fdjk;snkjh Jherh lwjeknsoh ,oa lrh'kpUnz dks gh fdjk;snkj ekuk gS vr% izfroknh la[;k 1 ds lkFk & lkFk mlds nks HkkbZ;ks dks nh x;h uksfVl oS/k gS ,oa n[ky izkIr djus ds fy, mUgssa oS/kkfud rjhds ls mUgs Ik{kdkj cuk;k x;k gS A
vr% fofu'p;u fcUnq la[;k 2 oknh ds Ik{k ess r; fd;k tkrk gS A
17- fofu'p;u fcUnq la[;k 3 dk fuLrkj.k%
vf/kfu;e la[;k 13 lu~ 1972 dh /kkjk 20 4 ds ijUrqd esa ;g mYys[k gS fd mi/kkjk 4 es mfYyf[kr dksbZ ckr ,sls fdjk;snkj ds laca/k essa ugh ykxw gksxh ftlus ;k mlds ifjokj ds fdlh lnL; u mlh 'kgj es dksbZ vkoklh; Hkou cuk fy;k gks ;k vU;Fkk [kkyh fLFkfr izkIr dj fy;k gks A oknh ds vf/koDrk us ;g cgl dh gS fd izfroknhx.k us viuk ,d edku cuk fy;k gS A Loa; Mh0 Mcyw 1 lrh'kpUnz us viuh ftjg esa Lohdkj fd;k gS fd jktdqekj us viuk edku fdjk;snkjh okys edku ds lkeus cuk;k gS A izfroknh ds fo}ku vf/koDrk us ;g cgl dh gS fd jktdqekj }kjk cuk;k x;k edku lrh'kpUnz }kjk cuk;k x;k ugh le>k tk;sxk D;ksfd lrh'kpUnz ,d bdkbZ gS rFkk jktdqekj rFkk mldk nwljk HkkbZ ,d vyx bdkbZ gS bl lEifRr ds mRrjkf/kdkj ds vk/kkj ij dsoy lrh'kpUnz fdjk;snkj gS vkSj lrh'kpUnz }kjk ;k ifjokj ds fdlh vU; lnL; }kjk vyhx< 'kgj es dksbZ edku cuk;k x;k gS u gh vU;Fkk izkIr fd;k x;k gS A ijUrq tSlk fd fofu'p;u la[;k 2 es fu'd'kZ vk;k gS fd rqylhjke dh e`R;q ds le; lrh'k ds lkFk & lkFk mlds nks HkkbZ ,oa ekrk lwjeknsoh rqylhjke ds lkFk jgrs Fks vkSj vf/kfu;e es fdjk;snkj 'kCn dh ifjHkk'kk ds vUrZxr lHkh O;fDr bl lEifRr es fdjk;snkj gq, A vr% bu fdjk;snkjks esa ls fdlh ,d ds }kjk ;k buds ifjokj ds fdlh lnL; }kjk bl 'kgj es cuk;k x;k dksbZ Hkh edku bUgh fdjk;snkjksa }kjk cuk;k x;k le>k tk;sxk vkSj /kkjk 20 4 ds izko/kku ykxw ugh gksxs ;kuh cdk;k fdjk;k U;k;ky; es tek ugh fd;k tk ldrk vkSj ;fn tek fd;k x;k gS rks bldk dksbZ ykHk izfroknhx.k dks ugh fey ldrk A Lohdk;Z :Ik ls izfroknhx.k }kjk fnukad 31-8-83 ds ckn dk fdjk;k ugha fn;k x;k vkSj csn[kyh daas uksfVl ds i'pkr tks fdjk;k tek fd;k x;k mldk dksbZ ykHk /kkjk 20 4 ds ijUrqd ds vuqlkj izfroknhx.k dks ugh feyrk A vr% pkj ekg ls vf/kd dh vof/k dk fdjk;k cdk;k gks tkus ds vk/kkj ij oknh bl lEifRr esa n[ky izkIr djus dk ds fy, vf/kd`r gS A izfroknh la[;k 1 ds bl rdZ esa dksbZ cy ugh gS fd mlus oknh ds vf/koDrk dks fdjk;k Hkstk Fkk tks mUgksus izkIr ugh fd;k rFkk edku ekfydks ds lgh uke ugh crk;s A ;fn oknh ds vf/koDrk }kjk fdjk;k izkIr ugh fd;k x;k Fkk rd bUdkjh ds rqjUr i'pkr vf/kfu;e dh /kkjk 30 ds izko/kkuks ds vUrZxr fdjk;k fdlh l{ke U;k;y; es tek djk fn;k tkuk pkfg, Fkk A ijUrq /kkjk 30 ds rgr fdjk;k tek djus dk dksbZ izek.k u rks izLrqr fd;k x;k gS u gh dgk x;k gS fd vr% izfroknhx.k }kjk fd;k fofu'p;u rnuqlkj izfroknhx.k ds fo:) r; fd;k tkrk gS A
4. A notice dated 10.8.1983 was sent to the petitioner and Smt. Surma Devi, his mother by Sri B. P. Bansal, advocate which was replied on 29.8.1983. Another notice dated 12.7.2000 was then sent to the tenant-petitioner by the respondent-landlord, which too was replied by means of letter dated 8.8.2000.
Thereafter, the respondent-landlord filed suit for arrears of rent and ejectment of the tenant.
The suit was contested by the petitioner-tenant by filing written statement dated 3.7.2001 denying the plaint allegations.
5. The trial court allowed the suit vide order dated 17.5.2003. Aggrieved by order, the petitioner filed Revision No. 13 of 2003 which was dismissed vide the impugned order dated 2.5.2003.
6. The petitioner has come up in this writ petition aggrieved by the aforesaid orders passed in the suit and in the revision dated 17.5.2001 and 2.5.2003, respectively.
7. It appears from record that the trial court recorded a finding of fact that two brothers of the tenant have constructed their own independent houses, as such, they are not entitled to the benefit of Section 20 (4) of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as 'U. P. Act No. XIII of 1972').
8. On issue No. 3 regarding benefit of Section 20 (4) of U. P. Act No. XIII of 1972, the trial court has held that since two brothers have constructed their independent houses they are not entitled to the benefit of Section 20 (4) of the aforesaid Act.
9. The revisional court has held as under:
fo}ku vf/koDrk iqujh{k.kdrkZ }kjk ;g rdZ j[kk x;k fd vf/kfu;e 13 lu~ 1972 dh vf/kfu;e 13 lu~ 1972 dh /kkjk 20 4 dk ykHk mls iznku fd;k tk;s] voj U;k;ky; }kjk ;g fof/kd =qfV dh xbZ gS bl lac/k es izR;FkhZ }kjk ;g rdZ j[kk x;k fd Loa; foi{kh }kjk vius c;ku esa bl rF; dks Lohdkj fd;k x;k fd jktdqekj ,oa v'kksd dqekj ds }kjk vius Hkouksa dk fuekZ.k dj fy;k x;k gS vkSj og mles fuokl dj jgs gS ,slh fLFkfr 20 4] m0iz0 'kgjh Hkou vf/kfu;e 13 lu~ 1972 dk ykHk mudks izkIr ugha gksxk A eS fo}ku vf/koDrk izR;FkhZ ds bl rdZ ls lger gwW vkSj bl laca/k esa vafdr fVIi.kh esa dksbZ gLr{ksi dh vko;'drk ugha gS A
14- esjs }kjk lEiw.kZ lk{; ,oa iz=koyh dk voyksdu fd;k x;k vkSj eS bl fu'd'kZ ij igqWprk gwW fd voj U;k;ky; }kjk tks rF;ks ij fVIi.kh vafdr dh x;h gS og Ik=koyh ij miyC/k lk{; ds vuq:Ik gS vkSj mlesa fdlh izdkj ds gLr{ksi dh vko;'drk ugh gS A bl iqujh{k.k ;kfpdk es dksbZ cy ugh gS vkSj iqujh{k.k ;kfPkdk [kf.M+r gksus ;ksX; gS A
vkns'k
Ikqujh{k.k ;kfpdk LkC;; [kf.M+r dh tkrh gS voj U;k;ky; ds vkns'k dh iqf'V dh tkrh gS vkSj iqujh{k.kdrkZ dks vknsf'kr fd;k tkrk gS fd ;g iz'uxr lEifRr ls viuk dCtk gVkdj izR;FkhZ dks 30 fnuks es dCtk iznku djsa Afnukad 2-5-2005 ,u0 ,0 tSnhvoj ftyk U;k;/kh'k d{k la0 11vyhx<+
10. Counsel for the petitioner placing reliance on Annexure-1 to the writ petition submits that the petitioner was only tenant upon whom notice dated 10.8.1983, had been served and that the tenancy had not devolved upon other co-tenants. He states that after death of the original tenant late Tulsi Ram the tenancy devolved upon his mother Smt. Surma Devi who remained sole tenant of the accommodation in dispute. After her death, he became the sole tenant. He submits that the petitioner being sole tenant, sent reply to the notice dated 10.8.1983 on 29.8.1993; that his other two brothers were living separately hence he was entitled to the benefit of Section 20 (4) of U. P. Act No. XIII of 1972 as he being the only person who is living in the rented residential accommodation unlike in a commercial tenancy where other legal heirs are assumed to be a co-tenant.
11. It is urged that the statement of P.W. 1 and his affidavit wherein it has been admitted that the petitioner is the only person living in the premises and which required no further evidence, has not been considered in a proper manner by the courts below; that the evidence of D.W. 2 Sri Om Karan stating that the other two brothers were living separately for 20-25 years has also not been considered by the courts below and that in every view of the matter, benefit of Section 20 (4) of U. P. Act No. XIII of 1972 denied to the petitioner and decreeing the suit by both the courts below is wholly arbitrary, illegal and without Jurisdiction and is liable to be quashed; that both the courts below have gravely erred in law in decreeing the suit of the landlord; that both the courts below have committed an error of law in holding that since two brothers have acquired their own houses benefit under Section 20 (4) of U. P. Act No. XIII of 1972 cannot be given to the petitioner and that the specific averment was made in the written statement filed by the petitioner that the petitioner is the only heir and tenant after death of his mother Smt. Surma Devi against whom the notice on behalf of the landlord was given on 10.8.1983. It was also stated that the other two brothers were living separately. In absence of any replica the fact had to be admitted hence the benefit of Section 20 (4) of U. P. Act No. XIII of 1972 ought to have been allowed by the courts below.
12. Counsel for the respondent submits that it is wrong to say that the two sons of late Tulsi Ram, namely, S/Sri Raj Kumar and Ashok Kumar have shifted to their house even when late Tulsi Ram was alive. No such case was even set up in the written statement filed by the petitioner. He had ever not disclosed the death of his father. On the contrary, at the time of death of Sri Tulsi Ram and even thereafter, all his three sons, namely S/Sri Raj Kumar, Ashok Kumar and Satish Chandra and his widow Smt. Surma Devi lived in the house in dispute. Much after enforcement of U.P. Act No. XIII of 1972, S/Sri Raj Kumar and Ashok Kumar have built their own houses which are within the municipal limits of district Aligarh. In fact, these houses are situated just next to the demised property. The notice served upon the petitioner and his mother Smt. Surma Devi in 1983 does not mean that the landlord admitted that S/Sri Raj Kumar and Ashok Kumar have built their houses before the death of their father Sri Tulsi Ram. On the contrary, it was the burden of the petitioner to prove such fact which he could not succeed. In such circumstances, the courts below rightly held that after death of Sri Tulsi Ram tenancy devolved upon all his three sons and since after the enforcement of U. P. Act No. XIII of 1972, S/Sri Raj Kumar and Ashok Kumar have built their own houses, therefore, they are not entitled to the benefit of Section 20 (4) of U. P. Act No. XIII of 1972. He denied that the landlord ever admitted that the petitioner and his mother Smt. Surma Devi alone inherited the tenancy rights.
13. Counsel for the respondent further pointed out that Sri Satish Chandra in his statement admitted that his father died on 7.4.1972. At that time, the petitioner including his two brothers were minors. They were living with their mother Smt. Surma Devi in this house in dispute. The petitioner, in his statement as D.W. 1 admitted that his two brothers had built their houses in 1982-83. It is thus evident that on the dale of death of their father on 7.4.1972, they were living in the house in dispute and continued to live there till 1982-83 when they built their own houses. Counsel for the respondents has relied upon a decision in Tara Chand v. Daya Rani and Ors. 1988 (1) ARC 456 : 1988 (1) AWC 664, wherein it has been held that where tenant claims benefit of Section 20 (4) of U. P. Act No. XIII of 1972 it is upon him to establish that the proviso thereto is not applicable.
14. Case of Tara Chand (supra) was considered by this Court in Rajrani Kapoor v. B. Singh 1990 (2) ARC 463, wherein it has been held that it is settled position of law that burden of proof is on the tenant to prove that the proviso to Section 20 (4) is not applicable and that he was entitled to claim benefit of Section 20 (4) of U. P. Act No. XIII of 1972.
15. In this regard, law has been laid down by Hon'ble the Apex Court in Harish Tandon v. A.D.M., Allahabad 1995 (1) ARC 220 : 1995 (1) AWC 106 (SC), wherein it has been held that:
26. The Cramers of the Act have clearly expressed their intention in Sections 12, 20 and 25 while protecting the tenant from eviction except on the grounds mentioned in Section 20 that after the death of the original tenant his heirs will be deemed to be holding the premises as joint tenant and for any breach committed by any of such joint tenants, all the heirs of the original tenant have to suffer. They cannot take a plea that unless the grounds for eviction mentioned in Sub-section (2) of Section 20 are established individually against each one of them, they cannot be evicted from the premises in question.
27. It was then submitted that although Swarup Kailash, the son-in-law of Ganpat Roy may not be held to be a member of the family within the meaning of the definition given in Section 3 (g), nonetheless he shall be deemed to be a member of the family as the expression 'family' is generally understood, and by admitting a son-in-law or daughter-in-law as a partner, it shall not amount subletting within the meaning of the Act. It was pointed out that Section 3 opens with the words 'In this Act, unless the context otherwise requires' and as such, the definition of the family should not be strictly construed as given in Section 3 (g) and in the context of the present case a wider interpretation to the expression 'family' should be given so as to include even the sons-in-law and daughters-in-law. In this connection reliance was placed on the Judgment of this Court in the case of Pushpa Devi and others v, Milkhi Ram, 1990 (2) SCC 134. As has already been pointed out that in the Act with which we are concerned, whenever the expression 'member of the family' has been used, it is consistent with the definition of family' given in Section 3 (g) and there is no scope for interpreting that expression In a different manner In connection with Sub-section (2) of Section 12 of the Act. Once the finding of the High Court that after the death of Sheobux Roy, his sons became tenants in common Instead of Joint tenants, is reversed for the reasons mentioned above, the result will be that It has to be held that because of the admission of Swarup Kailash, the son-in-law of Ganpat Roy, as a partner In the business, there has been a deemed vacancy of the premises within the meaning of subsections (2) and (4) of Section 12 and it shall amount to sub-letting within the meaning of Section 25, Explanation (() which is ground for eviction under Sub-section (2) (e) of Section 20 of the Act. The Judgment in Mohd. Azeem's case, does not lay down the correct law and on the other hand we hold that H.C. Pandey's case (supra) lays clown the correct law.
16. From the Judgment of the revisional court, It is crystal clear that the petitioner candidly admitted that his mother and two brothers had become legal heirs and representatives of late Tulsi Ram, the original tenant. From the record it is apparent that the tenant has admitted that his two brothers had constructed their own houses. Hence, in this view of the admitted position, they are not entitled to the benefit of Section 20 (4) of U. P. Act No. XIII of 1972.
17. It is admitted fact that late Tulsi Ram was the original tenant of the premises in dispute who expired and his date of death has not been mentioned anywhere. After his death, the tenancy devolved upon his wife Smt. Surma Devi and thereafter upon the legal heirs and representatives of Sri Tulsi Ram.
18. The trial court has found that the basis of cause of action is notice dated 12.7.2000 and not 10.8.1983 and that tenancy would devolve upon the petitioner from his father late Tulsi Ram through his mother after her death as he was the original tenant. Sri Satish Chandra failed to place and prove before the trial court that only he was living with his mother and by that time his other two brothers had constructed their own separate houses.
19. Even if this plea of the petitioner is accepted then too since his two brothers being male lineal descendants of his father will fall in the definition of 'family' given in Section 3 (g) of the U. P. Act No. XIII of 1972 wherein family has been defined as under:
3 (g) 'family' in relation to a landlord or tenant of a building, means, his or her:
(I) spouse,
(ii) male lineal descendants,
(iii) such parents, grant-parents and any unmarried or widowed or divorced or judicially separated daughter or daughter of a male-lineal descendant, as may have been normally residing with him or her.
20. The expression 'heirs normally reside with him or her' in aforesaid Section by the Legislature has enlarged the definition of 'tenant' by Including such heirs who normally reside with the tenant. There is no evidence when the two brothers built their own houses, hence they would be assumed to be residing normally with their father late Tulsi Ram as till his death they had not separated.
21. Sri Satish Chandra the petitioner could not claim the benefit of Section 20 (4) of U. P. Act No. XIII of 1972 in of the proviso to the Section which unequivocally stated that:
Provided that nothing in this sub-section shall apply in relation to a tenant who or any member of whose family has built or has otherwise acquired in a vacant state, or has got vacated after acquisition, any residential building in the same city, municipality, notified area or town area,
22. The trial court as well as the revisional court have given a finding of fact that the two brothers of the petitioner have constructed their own independent houses as such, they are not entitled to the benefit of Section 20 (4) of U. P. Act No. XIII of 1972. The contention of the petitioner in this regard was thus not accepted by the courts below.
23. The findings recorded by the courts below are based on appraisal of evidence and record. No illegality or perversity in the orders impugned could be shown by the petitioner, as such, no interference is called for within the limited ambit of the petition under Article 226 of the Constitution of India.
24. The writ petition is devoid of any merit and substance. It is accordingly dismissed. No order as to costs.