JUDGMENT
A.K. Shrivastava, J.
1. Feeling aggrieved by the judgment and decree dated 6.10.1998 in Civil Appeal No. 93-A/98 passed by IXth Additional District Judge, Bhopal whereby the judgment and decree dated 14.10.1992 passed in Civil Suit No. 101-A/89 by the Court of 8th Civil Judge, Class II, Bhopal has been affirmed, the defendant has preferred this second appeal under Section 100 of the Code of Civil Procedure, 1908.
2. In brief the suit of plaintiffs/respondents is that one Yakoob Hussain Naqvi was the tenant of the suit accommodation. The landlord is Madhya Pradesh Wakf Board. Said Yakoob Hussain obtained the suit accommodation on tenancy basis. Yakoob Hussain died on 14.5.1980. After the death of Yakoob Hussain plaintiffs 1 to 4 are residing in the suit accommodation and are paying rent to the Wakf Board. Defendant/appellant Akhtar Nawab Naqvi is the son of deceased tenant Yakoob Hussain. He is residing in other cities on account of his service. In the year 1986 he was transferred to Bhopal and in the month of April, 1986 he started living along with plaintiffs along with his family members. Defendant rest assured plaintiffs that as soon as a quarter will be allotted to him, he would vacate the suit accommodation. The defendant being the brother-in-law (Devar) of plaintiff No. 1 Smt. Taj Jahan, she gave her consent to the defendant to stay in the suit accommodation. After sometime when the plaintiffs requested defendant to vacate the suit accommodation, he became quarrelsome and caused Marpeet to the plaintiffs.
3. On the basis of above said pleadings it has been prayed by the plaintiffs that it be declared that plaintiffs No. 1 to 4 are the tenant as they are the heirs of original deceased tenant Yakoob Hussain. It has been further prayed that the decree of eviction be granted in favour of plaintiffs and against defendant and he be directed to evict the suit accommodation. A decree of injunction has also been sought that defendant be restrained from interfering in the possession of the plaintiffs.
4. The defendant by filing written statement refuted the averments made in the plaint. It has been pleaded by him that the elder son of deceased tenant was one Mohd. Abbas @ Shabab Naqvi whose heirs are the plaintiffs. Said Abbas @ Shabab Naqvi died earlier to the period when the suit accommodation was taken on tenancy basis by his father Yakoob Hussain from the Wakf Board. In the written statement, it has been pleaded that original tenant Yakoob Hussain died on 14.5.1980. It has been specifically denied that he is not the member of the family of deceased Yakoob Hussain. According to defendant he along with his family members are residing in the suit accommodation as the family members of the deceased tenant Yakoob Hussain. In the special plea it has been further pleaded that plaintiffs No. 1 to 4 are residing separately; right from very beginning and after the death of his father malafidely they want to capture the suit accommodation. On the basis of these premised pleadings it has been prayed by defendant/appellant that the suit be dismissed.
5. The trial court after framing necessary issues decreed the suit of the plaintiffs. The trial court held that the plaintiffs are residing in the suit accommodation since at the time of obtaining the said accommodation on tenancy basis by deceased tenant Yakoob Hussain. Even after the death of original tenant Yakoob Hussain they are residing in the suit accommodation. The defendant started living in the suit accommodation on account of permission accorded by the plaintiffs. The trial court by decreeing the suit directed the defendant to deliver the possession of the portion marked as ABCD in the suit map to the plaintiffs; he was further restrained by a decree of injunction that he would not interfere in the possession of the plaintiffs.
6. Defendant feeling aggrieved by the above said judgment and decree of the trial court preferred an appeal which has been dismissed by the impugned judgment and decree. Hence this second appeal has been filed by the defendant/ appellant.
7. This Court on 23.11.1998 admitted the second appeal on following substantial questions of law:
(1) Whether the Court below was right in decreeing the claim of the respondents No. 1 to 4 on the ground that the appellant was liable to be evicted from the suit accommodation as a trespasser?
(2) Whether the appellant inherited the tenancy of the suit accommodation after the death of the original tenant, Yakub Hussain Naqvi?
(3) Whether the suit filed by the respondents No. 1 to 4 was maintainable in the eyes of law ?
8. I have heard Shri Ashok Lalwani, learned Counsel for the appellant defendant and Shri Riyaz. Mohammad for respondent No. 5 Wakf Board and Shri Hemant Kumar Chouhan for respondents No. 1 to 4.
9. Having heard learned Counsel for the parties, I am of the view that this appeal deserves to be allowed.
10. In order to appreciate the contentions of learned Counsel for the appellant for convenience, all the above said three substantial questions of law are being decided in the following manner.
11. In the present case admittedly as per the pleadings of the parties, Wakf Board respondent No. 5 is the owner of the suit accommodation. It is also no more in dispute that the original tenant was Yakoob Hussain who took the suit accommodation on tenancy basis from Wakf Board. The original tenant died on 14.5.1980 and admittedly, defendant/appellant is also the son of (sic) tenant and if that is the position, he along with the plaintiffs inherited the tenancy right in the suit accommodation. The defendant/appellant being on would come under the ambit of the definition of member of the family as envisaged under Section 2(e) of the M.P. Accommodation Control Act, 1961 and since the tenancy right is inheritable the defendant/appellant also enjoys the same status as the plaintiffs No. 1 to 4 are enjoying in the suit accommodation after the death of original tenant. The status of defendant/appellant is that of co-tenant along with the plaintiffs No. 1 to 4. The Supreme Court in the case of Damdilal and Ors. v. Parasram and Ors. 1976 JLJ 655 has held that on the death of original tenant his heirs becoms joint tenant in the accommodation since the tenancy right is inheritable. In this view of the matter, since defendant also inherited the tenancy right, after the death of his father who was the original tenant, he cannot be evicted by the co-tenant like plaintiffs No. 1 to 4 because defendant/appellant also enjoys the same status as being enjoyed by the plaintiffs No. 1 to 4. The substantial questions of law are answered accordingly.
12. In the result, the appeal succeeds, the decree passed by two Courts below is set aside to the extent that defendant/appellant, being co-tenant is also entitled to reside as co-tenant in the suit premises along with plaintiffs No. 1 to 4. Looking to the facts and circumstances, the parties are directed to bear their own costs.