9911796707
TMI Blog2015 (1) TMI 1345X X X X Extracts X X X X X X X X Extracts X X X X ..... wned by appellants Nos.1 and 2 could be held to be not maintainable even when the appellants were added as plaintiffs as heirs of their father who died during pendency of the suit and whether description of the appellants who are owners as heirs instead of owners in their own right will be a case of mere "error, defect or irregularity" not affecting the merits or jurisdiction of the Court which did not affect the maintainability of the suit. 4. Raj Kumar was owner of the suit property who died on 4th February, 1994. Shiv Kumar Dubey, brother of Raj Kumar filed the suit for eviction of the respondent-tenant in his capacity as heir of Raj Kumar on the ground of non payment of rent on 24th April, 1995. During pendency of the suit, Shiv Kumar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were decided in favour of the plaintiffs and against the defendant. It was observed that the defendant had not mentioned the name of any other heir of Raj Kumar in the written statement. Issue Nos. 2 and 5 were also decided against the defendant. It was held that the defendant had defaulted in payment of rent from 1st June, 1993 and was not entitled to benefit under Section 20(4) of the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. Under Issue No.3, the rate of rent was held to be Rs. 75/-per month, excluding the house tax and the water tax. Under Issue No.6 it was held that the tenancy was validly terminated. Accordingly, the trial Court passed a decree for eviction and for payment of rent on 8th Dece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kumar of Shiv Kumar and it also cannot be considered that the knowledge of the said Will was not known to Shiv Kumar. Beside this, PW1 Pradeep Kumar has stated in his examination in chief that his uncle was Raj Kumar who has expired on 4.2.94 and that his uncle had given will in regard to all his moveable and immoveable properties in his favour along with his brother Kuldeep Kumar on which statement no cross examination has been done by the respondent and nor the said will was challenged in the arguments due to which reason also the statement of Pradeep Kumar in connection with the will is found as acceptable in the evidence and the said will also is acceptable as evidence due to not being challenged by the respondent. Here this fact is al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the owner of the shop in question nor landlord and accordingly issue no.1 is disposed off." 6. The appellants moved the High Court by way of writ petition against the order of the District Judge. The High Court vide impugned order affirmed the order of the District Judge. 7. During pendency of the matter in this Court, the respondent has died and his heirs have been brought on record. Though the heirs of the deceased respondent have been duly served, only respondent No.3 has chosen to put in appearance and other heirs are proceeded against ex-parte. In his counter affidavit, respondent No.3 has stated that only appellants Nos.1 and 2 had the title to the shop and they could seek eviction only in their own capacity and not in their capacit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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