Judgment:
Narendra Kumar Jain, J.
1. Heard learned Counsel for the parties.
2. Briefly stated the facts of the case are that shop in dispute was rented out by late Shri Phool Chand Jain to respondent No. 1-Bhajan Lal on monthly rent of Rs. 300/-. After the death of original landlord late Shri Phool Chand Jain, the tenant-respondent No. 1 Bhajan Lal moved an application before Civil Judge (Junior Division), Alwar under Section 19A of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 to the effect that after the death of late Shri Phool Chand Jain, the non-applicants No. 1 and 2 Shri Adesh Kumar Jain S/o late Shri Phool Chand Jain and Smt. Sumitra Devi, widow of late Shri Phool Chand Jain are claiming themselves as owner of the shop and are demanding monthly rent from him. Similarly, the non-applicant No. 4 Smt. Sunita Jain, W/o Shri Adesh Kumar Jain is also claiming herself as owner of the property and is demanding the monthly rent from him. Therefore, he is not aware as to who is competent owner to receive the monthly rent from him and in these circumstances, he has no alternative except to deposit the amount of monthly rent of the shop in dispute in the Court. Therefore, he may be permitted to deposit the amount of monthly rent for the period January and February, 1995 in the Court.
3. The non-applicant No. 1 Adesh Kumar Jain filed his written-reply to the application, wherein he contended that property in dispute was of Hindu Undivided Family and he being the Karta of the family after the death of late Shri Phool Chand Jain, he is entitled to receive the monthly rent from the applicant. However, he contended that so far as legal representatives of late Shri Phol Chand Jain are concerned, there are eight legal representatives namely: (i) Smt. Sumitra Devi Jain (wife); (ii) Adesh Kumar Jain, (iii) Pawan Kumar Jain (sons); (iv) Smt. Kamlesh Jain, (v) Smt. Nirmala Jain, (vi) Smt. Beena Jain, (vii) Smt. Mitra Jain and (viii) Smt. Chandan Jain (daughters). Therefore, the application filed by the tenant be dismissed and amount deposited by him be directed to be paid to him.
4. The non-applicants No. 3 and 4 (petitioners herein) filed their written-reply to the application, wherein it was contended by them that late Shri Phool Chand Jain in his life time had already entered into a family settlement and thereafter he executed a registered Will dt. 09.07.1991 in their favour. Thereafter a Supplementary Will dt. 14.05.1993 was also executed in their favour which was got attested on 14.05.1993 from Notary, Alwar. In these circumstances, they are the owner of the property in dispute and entitled to receive the monthly rent from the applicant.
5. The learned trial Court vide its order dt. 05.12.1998 allowed the non-applicants to withdraw the amount deposited by the applicant-tenant while reserving their rights.
6. Being aggrieved with the same, the non applicants No. 3 and 4 preferred an appeal, but the first appellate Court dismissed the same. Hence they preferred the present writ petition challenging the impugned orders of both the Courts below.
7. The submission of learned Counsel for the petitioners is that as per registered Will dt. 09.07.1991 and Supplementary Will dt. 14.05.1993, they are the owners of the property in dispute; and the family settlement in respect of property had already taken place in the life time of late Shri Phool Chand Jain. In these circumstances, the non- applicants No. 1 and 2 (respondents No. 2 and 3 herein) are not entitled to receive the amount of monthly rent from the tenant. It is further contended that from the reply of non-applicants No. 1 and 2, it was clear that there are eight legal representatives of late Shri Phool Chnad Jain, therefore, non applicants No. 1 and 2 alone were not entitled to receive the amount of monthly rent of the property in dispute in any circumstances. Therefore, both the Courts below committed an illegality in passing the impugned orders, whereby the non-applicants No. 1 and 2 have also been allowed to withdraw the amount.
8. The learned Counsel for the respondents No. 2 and 3 contended that after the death of late Shri Phool Chand Jain, the respondent No. 2 being the Karta of family is entitled to receive the amount of monthly rent. The amount has been allowed to be withdrawn to all the non-applicants including the present petitioners and their rights have been reserved, therefore, no interference should be made in the impugned orders passed by the Courts below.
9. I have considered the submissions of learned Counsel for the parties in the light of orders passed by both the Courts below.
10. There is no dispute in between both the parties that original landlord of property in dispute was late Shri Phool Chand Jain. After his death, the tenant Bhajan Lal moved an application under Section 19A of the Act of 1950. The petitioners as well as the respondents No. 2 and 3 all contested the application on the basis of their respective rights as narrated above. In the reply filed on behalf of the petitioners, it was also mentioned that they have already instituted a suit for eviction against the tenant on the basis of their right through registered Will executed by late Shri Phool Chand Jain and the said suit is pending in the trial Court. At the time of admission of the writ petition, this Court passed an ad-interim ex-parte stay order on 16.11.2005, whereby the petitioners as well as respondents No. 2 and 2, all were restrained from drawing the amount of rent deposited by the tenant. Subsequently while admitting the writ petition, this Court vide its order dt. 13.09.2006 stayed the operation of the orders passed by both the Courts below dt. 05.12.1998 and 31.01.2005. In these circumstances, the amount of rent deposited by the tenant is lying in deposit in the trial Court and since both the parties are claiming their ownership over the property in dispute by way of legal representative as well as registered Will and since a suit for eviction in respect of property in dispute has already been filed, wherein their rights will be determined by the Court, in these circumstances, I think it fit and proper that the ends of justice would meet in case the amount of rent lying in deposit in the trial Court may be allowed to be continued in deposit in trial Court itself during the pendency of the suit and that may be subject to the final decision of the trial Court in the civil suit.
11. In view of above discussions, the writ petition is allowed. The impugned orders passed by both the Courts below dt. 05.12.1998 and 31.01.2005, are quashed and set-aside and it is directed that amount of rent deposited by the tenant shall remain in deposit in the trial Court itself and that will be subject to the final decision of the trial Court in the suit for eviction filed in respect of property in dispute.
12. The parties are left to bear their own costs.
13. In view of above the stay application filed alongwith the writ petition also stands disposed of.