NANUMAL RIJUMAL Vs. LILARAM VENSIMAL

JUDGEMENT

(1.) This revision application by the original landlord- plaintiff is directed against the dismissal of the suit for possession ordered by the learned District Judge Kutch at Bhuj in Regular Civil Appeal No. 75 of 1975 preferred by the original defendant No. 2 in Regular Civil Suit No. 159 of 1973 filed by the plaintiff-landlord for recovery of possession which was decreed by the learned trial Judge.

(2.) A few facts may be stated. Plaintiff Nanumal Rijumal filed a suit for recovering possession of a house bearing CAX-43 situated at Adipur in Kutch District on the only ground that the two defendants Lilaram Vensimal and Thakumal Vensimal the sons of deceased Vensimal Tilumal were tenants of the demised premises and were in arrears of rent and were not ready and willing to pay the rent. The summons was served upon both the defendants and they appeared through one Advocate but they failed to file any written statement. The learned trial Judge held that the defendants were in arrears of rent for more than six months and they were not ready and willing to pay the rent and the suit would be governed by sec. 12 (3) (a) of the Bombay Rents Hotel and Lodging House Rates Control Act 1947 (Bombay Act No. LVII of 1947) (Rent Act for short) and according passed a decree for possession in favour of the landlord. Original defendant No. 2 preferred the appeal against the decree for eviction and this appeal was allowed by the learned District Judge holding that the notice termination the tenancy as required by sec. 106 of the Transfer of Property Act was not served on defendant No. 2 and therefore decree for eviction could not be made against him. It may be mentioned that original defendant No. 1 had not challenged the decree and the decree against him has become final. It may also be mentioned that during the pendency of the appeal the decree-holder landlord successfully executed the decree and dispossessed the successful defendant No. 2 in appeal. The landlord challenged the correctness of the decision of the learned District Judge in this civil revision application under sec. 29 of the Rent Act.

(3.) When this application came up for hearing before our learned brother Surti J. Mr. A. K. Mankad learned advocate who appeared for the petitioner urged that on the death of a tenant the heirs who inherited the tenancy inherited the same as joint tenants and a notice to one of them would be notice to all and therefore the learned District Judge was in error in holding that notice to all the heirs would be necessary as they inherited as tenants in common. It was also contended that even if notice to all the heirs was necessary in the facts and circumstances of this case there were two heirs of the deceased tenant and as both of them were staying together in one and the same house and that the notice was required to be served in the manner prescribed by sec. 106 of the Transfer of Property Act and a notice addressed to both and served on one of them would be notice to all. When these contentions were being examined by the learned single Judge his attention was drawn to some authorities and then he expressed an opinion that it is obligatory in law for any landlord to give to the tenants in common individual separate notice to quit as held by the Delhi High Court. If such a notice is not given to all the tenants in common who succeed in regard to the tenancy rights of the deceased tenant the possibility of any landlord purchasing one of the tenants in common by any device cannot be ruled out particularly when the Courts should be conscious of the fact that there is acute shortage of accommodation throughout the State. Having thus observed our learned brother felt that the question raised before him is of considerable importance and the matter should be placed before a larger Bench. That is how this matter has come up before us.