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Mohd. Qadeer v. Munsif North Lucknow And Others
Structured Summary of the Opinion — S.C. Mathur, J.
Factual and Procedural Background
The petitioner claims to be the owner of house No. 150/16, Mohalla Gwynneganj, Lucknow. The property was originally owned by Taqaiya Begum and the tenant was opposite party no. 6, Mijjan. The property passed through a chain of transfers: Taqaiya Begum sold to Mujawar Husam, who sold to Radhey Lal; Radhey Lal sued opposite party no. 6 (Mijjan) for arrears of rent and possession and obtained an ex parte decree dated 8 April 1978. Applications by Mijjan for restoration and revision were rejected, and Mijjan filed writ petition No. 3015 of 1979 in this Court (dismissed on 5 September 1986). The property was subsequently transferred to Mohammad Yunus, then to Mohammad Khaliq, and then to the petitioner, who was impleaded in the writ petition. After the writ was dismissed, the petitioner sought execution of the 1978 ex parte decree against Mijjan.
On or about 5 September 1986, opposite parties nos. 2 to 4 (children/heirs of Nanhey Mirza) filed Suit No. 316 of 1986 in the Court of Munsif (North), Lucknow, alleging that their father Nanhey Mirza was the original tenant and that on his death in 1963 tenancy rights devolved upon them and their sister Sarwar Jahan (opposite party no. 5) along with Mijjan (opposite party no. 6). They claimed co-tenancy and alleged no notice of termination had been served on them, that Mijjan paid rent on their behalf, and that they (or their husbands) continued to reside in the house. In that suit they obtained an interim injunction (by order dated 13 October 1986) restraining dispossession/ejection pending trial. The injunction order became final and remains in force, and Suit No. 316 of 1986 continued to be pending for more than four years, preventing execution of the 1978 decree.
The petitioner filed the present petition under Article 226 of the Constitution seeking (a) quashing of the proceedings in Suit No. 316 of 1986 and (b) a writ of mandamus directing the Munsif (opposite party no. 1) to execute the ex parte decree for ejectment and arrears passed against Mijjan.
Legal Issues Presented
- Whether the proceedings in Suit No. 316 of 1986 (filed by opposite parties nos. 2–4) should be quashed as an abuse of the process of the court and because they prevent execution of a valid earlier decree.
- Whether a writ of mandamus should be issued directing the Munsif (North), Lucknow to execute the ex parte decree for evicting and recovering arrears from opposite party no. 6 (Mijjan) which was passed on 8 April 1978.
- Whether the plaintiffs (opposite parties 2–4 and 5), as heirs of the deceased tenant Nanhey Mirza, are entitled to tenancy rights such that (i) they are co-tenants necessitating separate notices of termination to each heir, or (ii) they are joint tenants where a notice to one is sufficient.
- Whether the petitioner is precluded from relief by acquiescence or laches because the petitioner waited while Suit No. 316 of 1986 was pending for several years.
Arguments of the Parties
Petitioner's Arguments
- There is no prima facie evidence on record to show that the plaintiffs (opposite parties 2–4) occupied the house even after their marriages; therefore the injunction should not have been granted.
- If the plaintiffs' factual assertions were true, their legal status would be that of joint tenants (not co-tenants), and notice of eviction to one joint tenant is sufficient to terminate the tenancy.
- Under the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act the plaintiffs are not legal representatives of Nanhey Mirza and so cannot claim tenancy rights.
- The suit (No. 316 of 1986) is an abuse of the process of the court intended to delay execution of a valid decree; accordingly the proceedings should be quashed.
Opposite Parties' (Plaintiffs') Arguments
- The petitioner is guilty of laches/acquiescence because the petition to quash was filed only after four years and when the suit was ripe for final hearing; the petitioner is therefore deemed to have acquiesced in the proceedings.
- Nanhey Mirza died in 1963 when the U.P. Control of Rent and Eviction Act, 1947 was in operation; consequently the rights of the plaintiffs must be determined having regard to the 1947 Act and not by reference to the later U.P. Urban Buildings Act.
- Under the 1947 Act, and applying Muslim personal law, the plaintiffs as heirs succeeded to the tenancy by succession and therefore acquired tenancy rights even if they were not actually residing in the accommodation.
- Relied upon Jaspal Singh v. Additional District Judge, Bulandshahr (1985 (1) ARC 1 (SC)) for the proposition that heirs under personal law became tenants by succession.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| H.C. Pandey v. G.C. Paul, 1989 (2) ARC 26; (1989 (7) LCD 292) | On the death of the original tenant, tenancy rights devolve on the heirs as a single tenancy — the heirs succeed as joint tenants; incidence of tenancy remains the same as that of the original tenant; there is no division of premises or rent. | The court relied on this Supreme Court decision as overruling an earlier contrary view and concluded that the plaintiffs (heirs) are joint tenants; consequently a notice to one joint tenant is sufficient and the decree against Mijjan is binding on them. |
| Kanji Manji v. The Trustees of the Port of Bombay, AIR 1963 SC 468 | In the case of joint tenancy, notice to one of the joint tenants is sufficient; a suit is maintainable against one joint tenant. | Applied to support the proposition that heirs who succeed as joint tenants can be bound by notice to one tenant; used to hold that separate notices to each heir were not necessary. |
| Ramesh Chand Bose v. Gopeshwar Prasad Sharma, AIR 1977 Allahabad 38 | Held that on the death of a tenant his heirs succeed as tenants in common and each tenant in common must be served with notice under section 106 of the Transfer of Property Act and impleaded in eviction proceedings. | The court noted this authority but expressly held it had been overruled by the Supreme Court decision in H.C. Pandey v. G.C. Paul and therefore did not follow its rule that separate notices were required to each heir. |
| Jaspal Singh v. Additional District Judge, Bulandshahr and others, 1985 (1) ARC 1 (SC) | Relied upon by plaintiffs for the proposition that heirs under personal law became tenants by succession even if they were not residing in the accommodation. | The court observed that while Jaspal Singh supports the idea that heirs acquire tenancy rights by succession, it does not lay down that separate notices for termination of tenancy must be served on such heirs; hence the plaintiffs derived no benefit from it on the issue of separate notices. |
| Smt. Mahadevi and others v. Civil Judge, Farrukhabad and others, 1987 (1) ARC 406 | Authority for quashing proceedings where the suit is an abuse of the process of the court. | Cited by the court as persuasive authority supporting the proposition that the present suit could be quashed as an abuse of process delaying execution of a valid decree. |
| Smt. Raj Kumari Kapoor v. Civil Judge, Kanpur and others, 1987 (1) AWC 235 | Authority for quashing proceedings where they amount to an abuse of the process of the court. | Relied upon by the court as additional support for the conclusion that Suit No. 316 of 1986 constituted an abuse of process and merited quashing. |
Court's Reasoning and Analysis
The court proceeded by examining the legal character of the tenancy rights which the plaintiffs claimed as heirs of Nanhey Mirza and the procedural posture that prevented execution of an earlier valid decree.
- Preliminary factual assessment: The trial court had granted an injunction on 13 October 1986, finding prima facie that the plaintiffs were co-tenants and resided in the house and had not been served with notice of termination. That injunction has become final and is preventing execution of the 1978 decree.
- Legal characterization of succession to tenancy: The court considered conflicting authorities. An earlier Division Bench decision of the Allahabad High Court (Ramesh Chand Bose) had held that heirs succeed as tenants in common (requiring separate notices), but the court found that principle to have been overruled by the Supreme Court in H.C. Pandey v. G.C. Paul which held that heirs succeed as joint tenants — a single tenancy devolves on the heirs, with the same incidence as the original tenant.
- Consequence of joint tenancy: Having accepted the Supreme Court's formulation that succession produces joint tenancy, the court invoked Kanji Manji (AIR 1963 SC 468) to note that in joint tenancy a notice to one joint tenant is sufficient and a suit could be brought against one of them. On that basis, the decree passed against Mijjan binds the heirs who succeeded as joint tenants and separate notices were not necessary.
- Treatment of Jaspal Singh: The court reviewed the Jaspal Singh decision relied upon by plaintiffs and concluded that while it supports the concept that heirs may acquire tenancy by succession, it does not require that separate notices for the termination of tenancy be served on every heir. Therefore, it did not assist the plaintiffs on the discrete issue before the court.
- Abuse of process and delay: The court accepted the petitioner's submission that Suit No. 316 of 1986 was being used to delay execution of a valid decree passed on 8 April 1978 (over a decade earlier). The injunction obtained in 1986 has effectively stymied execution. The court found substance in the contention that the suit was an abuse of process and noted analogous authorities where courts had quashed such proceedings.
- Acquiescence/laches: The court rejected the plea of acquiescence by the petitioner. It found that the petitioner had reasonably awaited disposal of the suit, and initiated the Article 226 petition only after the suit remained pending for more than four years and execution of a long-standing decree was being prevented.
- Outcome based on law + equity of delay: Combining the legal conclusion (heirs are joint tenants; notice to one suffices) with the procedural reality (abuse of process delaying execution), the court concluded that no relief was due to the plaintiffs and that the suit should be quashed and execution ordered.
Holding and Implications
Holding:
The petition is allowed: The proceedings in Suit No. 316 of 1986, Court of Munsif (North), Lucknow, are QUASHED, and the learned Munsif is directed to proceed to execute the decree passed in Suit No. 349 of 1970 (the eviction decree passed on 8 April 1978 against Mijjan) in accordance with law.
Implications:
- Direct effect on parties: The injunction that had prevented execution is no longer sufficient to bar the learned Munsif from executing the earlier decree; the petitioner is entitled to have the decree executed and recover possession/arrears as decreed. The plaintiffs (opposite parties 2–4 and 5) lose the protection afforded by the interim injunction and the suit that delayed execution has been quashed.
- Precedential scope: The court relied upon Supreme Court authority (H.C. Pandey v. G.C. Paul and Kanji Manji) to determine the legal incidence of tenancy succession. The opinion does not purport to lay down a new principle of law; it applies existing higher-court authority to the facts and quashes a pending suit on grounds of abuse of process and to permit execution of a valid decree.
Disposition: Petition allowed.
S.C. Mathur, J. -- The petitioner claiming to be owner of the house in suit, has filed the present petition under Article 226 of the Constitution, to quash the proceedings in Suit No. 316 of 1986 filed by opposite parties No 2 to 4 in which petitioner, opposite party no 6 Mijjan and opposite party no. 5 Smt. Sarwar Jahan are defendants 1, 2 and 3. Apart from the prayer for quashing the proceedings, it is also prayed that a writ of mandamus be issued against the Munsif North, Lucknow, opposite party no. 1, commanding him to execute decree for ejectment & arrears of rent passed against opposite party no. 6 Mijjan. The petitioner's case is thus: --
2. Taqaiya Begum was owner of the house in question viz. house no. 150/16. Mohalla Gwynneganj, Lucknow and opposite party no 6 Mijjan was her tenant in the said house. She sold the house to Mujawar Husam, who in his turn sold it to Radhey Lal. Radhey Lal filed suit against opposite party no. 6 for recovery of arrears of rent and possession. The suit was decreed ex parte on 8th April, J978. Application for restoration filed by opposite party no. 6 was rejected. Against rejection of this application revision was filed by opposite party no. 6, which was also rejected. Opposite party no. 6 thereafter filed writ petition No. 3015 of 1979 in this Court. Meanwhile there were successive transfers of the property in suit. Radhey Lal transferred it to Mohammad Yunus and Mohammad Yunus. transferred to Mohammad Khaliq and Mohammad Khaliq transferred it to the petitioner. Petitioner having become owner of the house made an application for impleadment in the writ petition which was allowed. The writ petition was dismissed on 5th September, 1986. Thereafter the petitioner started proceedings to execute the exparte decree passed against Sri Mijjan. On this step being taken by the petitioner, opposite parties nos. 2 to 4 filed suit No. 316 of 1986 in the Court of Munsif North, Lucknow alleging therein that their father Nanhey Mirza was the original tenant of the house in suit and on his death in the year 1963, tenancy rights were inherited by them and their sister Sarwar Jahan, opposite party no. 5 and that brother Mijjan, opposite party no. 6. On this basis it was pleaded that they were co-tenants along with opposite parties 5 and 6 and no notice of termination had been served upon them & opposite party no. 5 and they were not impleaded in the suit in which decree for eviction and arrears of rent was passed and the said decree was, therefore, not binding upon them. It was asserted that Mijjan paid rent of the house in question on behalf of the plaintiffs also. It was further asserted that even after their marriage they continued to live in the house in question as their husbands also started living in the said house. The decree passed against Mijjan was described as collusive.
3. In the aforesaid suit, opposite parties 2 to 4 made an application under order 39 rules 1 & 2 read with section 151 of the code of civil procedure to restrain the defendants, their agents and servants, assignees, associates and representatives from dispossessing or ejecting the plaintiffs from the house in question till the disposal of the suit.
4. The petitioner has contested the aforesaid suit on the following pleas: --
(i) Nanhey Mirza was not the tenant of the house in question and that Mijjan alone was tenant, as such, neither the plaintiffs of the suit nor their sister Smt. Sarwar Jahan had any tenancy right in the house in question;
(ii) in any case by their action, the plaintiffs and opposite party no. 5 have surrendered their rights in the house in question, if they had any.
(iii) the plaintiffs and opposite party no. 5 were never in possession of the house in question;
(iv) after marriage they went to reside with their husbands; and
(v) the plaintiffs have filed the suit at the instance of their brother Mijjan.
5. The trial court by its ordered dated 13th October, 1986 granted injunction prayed for by the plaintiffs, observing that prima facie the plaintiffs were co-tenants of the house in question and no notice of termination of tenancy had been served upon them and they were not impleaded in the suit in which decree for ejectment was passed. Prima facie the plaintiffs have been found to be residing in the house in question.
6. It appears that the above injunction order has become final and is still operating. However, the suit which was filed in the year 1986 is still pending. Exasperated with the continued pendency of the suit resulting in delay in execution of the decree, the petitioner has filed the instant writ petition seeking the relief's indicated hereinabove.
7. Learned counsel for the petitioner has submitted that there is no prima facie evidence on record to establish the claim of the plaintiffs that they had been in occupation of the house in question even after their marriage and, therefore, the injunction sought should not have been granted. It is also asserted that even if the facts stated by the plaintiffs are correct, their status will not be that of co-tenant, but would be of joint tenant and notice of eviction to one joint-tenant is sufficient to terminate the tenancy. On these bases it is submitted that the plaintiffs cannot escape from the consequence of the ejectment decree passed against Mijjan. Learned counsel has cited authorities which will be noticed hereinafter. It is submitted that under the UP. Urban Buildings (Regulation of Letting, Rent and Eviction) Act the plaintiffs are not legal representatives of Nanhey Mirza and, therefore, they cannot claim tenancy rights. It is also the submission of the learned counsel that the present suit is an abuse of process of Court and, therefore, the proceedings are liable to be quashed.
8. Sri S.N. Bhattacharya, learned counsel for the plaintiff-opposite parties has submitted that the petitioner is guilty of laches inasmuch as the suit was filed in the year 1986 and the present petition has been filed after four years when the suit is ripe for final hearing. It is submitted that the petitioner will be deemed to have acquiesced in the proceedings. Nanhey Mirza died in the year 1963 when U.P. Control of Rent and Eviction Act, 1947 was in operation and, therefore, the rights of the plaintiff cannot be determined with reference to U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act. It is submitted that under 1947 Act all persons who were heirs under the Personal Law became tenant by succession on the death of the original tenant. It is claimed that under the Muslim Personal Law, the plaintiffs are heirs of Nanhey Mirza and, therefore, they acquired tenancy rights. It is pressed that the tenancy rights will be available even if it is found that the plaintiffs were not actually residing in the house in question. In support of his submission the learned counsel has cited 1985 (1) ARC 1 (SC) Jaspal Singh v. Additional District Judge, Bulandshahr and others.
9. In my opinion even on the facts pleaded by the plaintiff-opposite-parties no relief can be granted to them. Indeed it had been held by a Division Bench of this Court in AIR 1977 Allahabad 38 Ramesh Chand Bose v. Gopeshwar Prasad Sharma that on the death of a tenant his heirs succeed as tenants in common and each tenant in common will have to be served with notice under section 106 of the Transfer of Property Act and will have to be impleaded in suit for eviction, but this authority stands overruled by the decision of their Lordships of the Supreme Court in H.C. Pandey v. G.C. Paul 1989 (2) ARC 26: (1989 (7) LCD 292). It has been observed in paragraph 4 on the death of the original tenant, subject to any provision to the contrary either negativing or limiting the succession, the tenancy rights devolve on the heirs of the deceased tenant. The incidence of the tenancy are the same as those enjoyed by the original tenant. It is a single tenancy which devolves on the heirs. There is no division of the premises or of the rent payable therefor. That is the position as between the landlord and the heirs of the deceased tenant. In other words, the heirs succeed to the tenancy as joint tenants”. Earlier in AIR 1963 Supreme Court 468 Kanji Manji v. The Trustees of the Port of Bombay their Lordships had laid down that in the case of joint tenancy notice to one of the joint tenants was sufficient and the suit was also good against one of them. In view of the legal position which now stands crystalized, the plaintiffs are not entitled to any relief even if all their assertions are accepted. The suit is accordingly unnecessarily pending in the court below.
10. Learned counsel for the petitioner has cited authorities for submitting that where a suit is an abuse of the process of the Court the proceedings deserve to be quashed. Such quashing was done in 1987 (1) ARC 406 Smt. Mahadevi and others v. Civil Judge, Farrukhabad and others and 1987(1) AWC 235 Smt. Raj Kumari Kapoor v. Civil Judge, Kanpur and others There appears to be substance in the submission of the learned counsel for the petitioner that the present suit is an abuse of the process of the court. The decree for eviction was passed on 8.4.1978 i.e. 13 years ago and the same has not been executed till date. The suit which has given rise to the present writ petition was filed on 5.9.1986 and although more than four years have passed it also continues to be pending. The plaintiffs have obtained temporary injunction on account of which a decree validly passed cannot be executed.
11. The petitioner has prayed for quashing of the proceedings in suit and for a mandamus to opposite party No. 1 to command him to execute the decree passed on 8 4.1978. I am of the opinion that the petitioner is entitled to both the relief's.
12. The plaintiff-opposite parties derive no benefit from the decision in Jaspal Singh's case (Supra). This judgment was relied upon for the proposition that on the death of a tenant the tenancy rights are inherited by all the heirs as co-tenants irrespective of the fact whether they were residing in the accommodation or not. This judgment, however, does not lay down that separate notices for termination of tenancy will have to be served on such heirs.
13. The plea of acquiescence is also equally misconceived. The petitioner obviously waited for disposal of the suit. It was only when the suit could not be disposed of even after it had remained pending for more than four years that the present writ petition was filed.
14. In view of the above the petition is allowed and the proceedings in Suit No. 316 of 1986 of the Court of Munsif (North), Lucknow, are hereby quashed. The learned Munsif shall proceed to execute the decree passed in Suit No. 349 of 1970 in accordance with law.
(Petition allowed.)
……………………..
Petition allowed.
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