C.K Abdul Khadar v. V.Sajitha; C.S Sameer; Shereefa Ali

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **FRIDAY, THE 17[TH] DAY OF FEBRUARY 2023 / 28TH MAGHA, 1944 RSA NO. 138 OF 2023** **AGAINST THE JUDGMENT DATED 17.01.2023 IN A.S.NO.65/2022 OF THE COURT OF ADDITIONAL DISTRICT JUDGE III, PALAKKAD CONFIRMING THE ORDER DATED 27.07.2022 IN EA 270/2019 IN E.P.224/2017 IN R.C.P.33/2011 OF MUNSIFF (PRINCIPAL), PALAKKAD** ## **APPELLANT/APPELLANT/PETITIONER/3RD PARTY:** C.K ABDUL KHADAR AGED 66 YEARS S/O KUNJUMUHAMMED, BUSINESS, CHUNANGAD HOUSE, P.O. MADAVANA, KODUNGALLUR, THRISSUR DISTRICT. BY ADVS. P.M.ABDUL JALEEL (KODUNGALLUR) T.V.SHAJI K.SHAMEER MOHAMMED K.N.MUHAMMED THANVEER ## **RESPONDENTS/RESPONDENTS/DECREE HOLDER & 2ND AND 3RD** ## **JUDGMENT DEBTORS:** 1 V.S. SAJITHA AGED 59 YEARS WO KRISHNAN, 29/277, DAYANANDA STREET, KARNAKI NAGAR, PALAKKAD. 2 C.S SAMEER AGED 46 YEARS S/O C.K. SYED MUHAMMED, BED EMPORIUM, MARKET ROAD, PALAKKAD. 3 SHEREEFA ALI AGED 63 YEARS WO LATE. C.K. ALI, CHALINGAD VEEDU , MADAVANA, ATHANI, KODUNGALLUR, THRISSUR DISTRICT. 2 R.S.A.No.138/2023 BY ADVS. GIRIJA K GOPAL A.A.ABDULLAH, FABID AHMER FOR 1ST RESPONDENT THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 16.02.2023, THE COURT ON 17.02.2023 DELIVERED THE FOLLOWING: R.S.A.No.138/2023 3 ## **M.R.ANITHA, J** ****************** R.S.A.No.138 of 2023 ------------------------------------------------Dated this the 17[th] day of February, 2023 ## **JUDGMENT** Appellant is the claimant in E.A.No.270/2019 in E.P.No.224/2017 in R.C.P.No.33/2011 on the file of Munsiff (Principal), Palakkad. Appellant/claim petitioner is one of the legal heirs of the deceased tenant. 2. The contention of the appellant/claim petitioner (hereinafter be referred as 'petitioner') is that the building was originally taken on rent in 1937 by Kunjumohammed, father of the appellant, from the then owner Ahammed Sha Rawther and by subsequent transfers, the present landlord became the owner of the tenanted premises. It is also contended that he has not been made a party in the Rent Control Petition and he is also a legal heir of the deceased tenant and hence the order passed in R.C.P.No.33/2011 will not bind him and hence, as per the order R.S.A.No.138/2023 4 in the Rent Control Petition, he is not liable to be evicted. 3. Learned counsel for the first respondent/landlord, on the other hand would contend that, in the Rent Control Petition also, the respondents had taken up the very same contention of non-joinder of necessary party for not impleading the claim petitioner as a party in the Rent Control Petition and the learned Munsiff, following the principles in **HC Pandey v. G.C.Paul : AIR 1989 SC 1470** as well as **Mohanambal v. Veeramani : 1999 KHC 308** wherein it was held that decree passed against the persons impleaded as heirs is binding on the unimpleaded heirs in the absence of fraud or collusion, repelled the contentions of the respondent and found that there is substantial representation. 4. The matter was taken up in appeal. Before first appellate court also, the very same contention was raised and following the principles in **Mohanambal v. Veeramani : 1999 KHC 308,** first appellate court also found that there is substantial representation and the Rent Control Petition is not bad for non- R.S.A.No.138/2023 5 joinder of necessary parties. It is also contended that in Rent Control Appeal No.43/2012 dated 01.03.2014 the appellate court found against the landlord and order of eviction passed under Section 11(3) of the Kerala Building Lease and Rent Control Act (for short 'the Act') was set aside. Against which the landlord/the respondent herein approached this Court in Rent Control Revision No.202/2014 and as per the order dated 16.06.2017, this Court set aside the order of the first appellate court and eviction was ordered under Section 11(3) of the Act. 5. It is contended by the learned counsel that the contention regarding non-joinder or not impleading the petitioner herein as a party to the proceedings was not raised in the Rent Control Revision by the respondents/tenants and the finding made against the tenants by the Rent Control Court as well as the first appellate court that the Rent Control Petition is not bad for non-joinder of necessary parties has become final and hence, the petitioner, being one of the legal heirs of the deceased/tenant, is not legally entitled to file a petition for claim R.S.A.No.138/2023 6 under Order XXI Rule 97. It is also her contention that while A.S.No.65/2022 which was filed against the dismissal of the claim petition was pending, the tenants approached this Court by filing O.P (R.C) No.212/2022 on the ground that application for stay filed by the appellants/tenants is not being taken up. While disposing that original petition, this Court directed the first appellate court to dispose the appeal itself within a period of three weeks and till that time, the delivery proceedings was kept in abeyance. It is also made clear by this Court that, in case the appeal is not considered in favour of the petitioner/tenant, immediate steps shall be taken to execute the order. According to the learned counsel, it is thereafter, delivery proceedings had been initiated and thereupon the petitioner came up before this Court with this second appeal and no substantial question of law emerges for consideration in this appeal. 6. The only argument advanced by the learned counsel for the appellant is that, as per Section 2(6) of the Act, tenant means any person by whom or on whose account rent is payable R.S.A.No.138/2023 7 for buildings and includes:- (i) heir of a deceased tenant, and (ii) ...................... Hence, the appellant being one of the legal heirs of the deceased tenant, Rent Control Petition filed without impleading him as a party will not bind him and is a nullity. But, as has been rightly contended by the learned counsel for the appellant, the very same contention has been raised by the tenants in the Rent Control Proceedings and that has been found against by the trial court as well as the first appellate court and though revision was filed against the judgment in A.S, the contention regarding non-joinder was not advanced before this Court. Moreover, the dictum laid down in **Mohanambal** is an identical case wherein the maintainability of a Rent Control Petition without impleading one of the legal heirs of the original tenant came up for consideration in a suit filed by the legal representative seeking for a declaration that the order of eviction will not bind her. In that context, the learned Single Judge, in paragraph No.10 quoted **K.K.Manjerintha v. V.M.T. Kalliani (1995 Supp (3) SCC 403)** wherein it has been held that, after R.S.A.No.138/2023 8 the death of a tenant all the legal heirs stepped into the shoes of the deceased tenant jointly and they are joint tenants under law. So the service of notice on one of the coheirs of the tenant was sufficient service of notice as contemplated under Section 106 of the Transfer of Property Act. The heirs succeed to the tenancy as the joint tenants. Therefore, on the death of the original tenant, the tenancy rights devolved upon all the children of the original tenant and notice terminating the tenancy under Section 106 of the Transfer of Property Act addressed to and served upon one of the sons of the original tenant who, paid rent acted on behalf of all the heirs of the original tenant and the notice issued would be sufficient notice. So applying the principles which was followed in **Mohanambal v. Veeramani** the courts below concurrently found that the non-impleadment of the appellant/claimant is not fatal and there is substantial representation of the tenants. So the very same legal heir now cannot turn round and file a petition under order 29 Rule 97 raising claim over the property. Petitioner being the brother of respondents 2 and 3/judgment R.S.A.No.138/2023 9 debtors can only be treated as a person acting at the instigation of respondents 2 and 3 or claiming under respondents 2 and 3 and hence the claim petition was rightly dismissed by the courts below. I do not find any substantial question of law emerging for consideration for entertaining the second appeal. In the result, R.S.A is found to be devoid of any merit and hence dismissed in limine. (sd/-) **M.R.ANITHA, JUDGE** jsr