Smt. Rajinder vs Gopal Dass

V.K. Jhanji, J.—This Civil Revision is directed against the orders of the authorities below dismissing the ejectment petition filed by the petitioners.

Briefly stated, the facts are that one Chand Kaur was the owner/lady ol the property in dispute. Gopal Dass (respondent herein) was tenant under Chand Kaur who died in 1960 leaving behind tow sons Jamna Dass and Sita Ram. Jamna Dass predeceased Chand Kaur. Gain Wati was the widow of Jamna Dass and Rajinder is daughter. The dispute arose with regard to titJeof the property between the heirs of Chand Kaur, namely, Gian Wati and Rajinder Kaur, on one hand and Sita Ram on the other. Partition suit was filled in 1961 and final decree was passed on 10.6.1974. In terms of the judgement and decree of the partition suit, property in dispute had fallen to the share of Gian Wati and Rajinder.her daughter. Gian Wati stated to have executed Will dated 2.2.1976 in favour of Deepak son of smt. Rajinder. Gian Wati died in Oc-tober,1976. On 21.8.79, ejectment petition was filed by Deepak as well as Rajinder claiming themselves of be the owners of the property. It was also claimed that Gopal Dass had become tenant under them and is liable to bejected on the ground that he has not paid rent with effect from 8.11.1962 to 8.7.1979. Petition was contested by the tenant, who denied the relationship of landlord and tenant. Validity of Will was also challenged. It was also claimed that the petitioners had not become the owners by virtue of the partition decree. The Rent Controller dismissed the ejectment petition as the partition decree had not been filed before the Rent Controller and, therefore it was held that the petition decree had not it was held that the petitioners had failed to prove that they have become owners by virtue of partition decree. The Rent Controller dismissed the ejectment petition as the partition decree had not been filed before the Rent Controller and, therefore, it was held that the petitioners had failed to prove that they have become owners by virtue of partitions decree. Will was also held to be not valid as the Rent Controoler held that there are suspicious ciicumstances surrourding the Will. With regard to arrears of rent, it was held that the petitioners had failed to prove that any rent was due. Petitioners filed appeal before the first Appelate Court. Along with the appeal they also filed application under Order 41 Rule 27, CPC to bring on record certified copy of the decree sheet. The appeal was dismissed. Application was dismissed vide separate order in which it was held that the petitioners cannot be allowed to lead evidence as it will amount to filling in the lacuna. On dismissal of the appeal the present civil revision has been preferred by the petitioner,

Along with the civil revision, an application has also been filed to bring on record the partition decree. Mr. Mahajan, Learned Counsel for the petitiones contends that the first Appellate Court ought to have allowed the decree sheet to be placed on record and judgment on the basis of which the decree was passed was before the Rent Controller and was exhibited. He further contends that the validity of Will could not be challenged by the tenant.

On the other hand, Learned Counsel for the respondent, Mr. Roshan Lal Sharma, Advocate states that even if these documents are taken into con�sideration, even then the ejectment petition is liable to be dismissed as the petitioners have failed to prove that any arrears of rent was due.

After hearing the Learned Counsel for the parties, I am of the view that the finding of the authorities below with regard to relationship of landlord and tenant cannot be sustained. Partition decree was passed on 10.6.1974 and, therefore, by virtue of the said decree, Gian Wati and Smt. Rajinder had become owners of the property at least from that date. Mr. Roshan Lal Sharma, Advocate, Learned Counsel for the respondent has not been able to point out as to how the partition decree does not relate to the property in dispute. House No. 844-VI-5 is mentioned in the decree and this very house is in occuption of the tenant. Under the decree, this house has fallen to the share of Gian Wati and Smt. Rajinder. Gian Wati executed the Will in favour of Deepak son of Smt. Rajinder. Tenant cannot challenge the validity of Will as the Will can be challenged only by the heirs of Gian Wati or by any other person claiming share in the property in dispute. Admittedly, tenant is not claiming that the has become owner after the death of Gian Wati. In this view of the matter, relationship of landlord and tenant is established on record between the petitioners and the respondent. However, this revision deserves to fail on thee ground that the petitioners have failed to prove that any rent was due. None of the petitioners has come into the witness box to state that any rent was due. Dr, Jiwan Lal, AW-2 has though come into the witness box and has claimed himself to be the attorney, but be has also not been able to prove as to what rent and fromwhat period it was due.

Consequently, this civil revision stands dismissed. However, it shall be open to the petitioner to file ejectment application and claim arrears of rent in case they can prove as to what rent is payable by the respondent. No costs.