AKHILESH SINGH Vs. VIJAY SINGH AND ANOTHER

JUDGEMENT

(1.) A suit for rent and ejectment was filed in the Court of Judge Small Causes by the respondents 1 to 3 against the applicant. It is not in dispute between the parties that the agreed rent was Rs. 2,500/ - per month. The U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (13 of 1972) is, therefore, not applicable to the building in dispute. Before the institution of the suit a notice under section 106 of the Transfer of Property Act dated 18.5.2000 was admittedly served upon the applicant. The defence of the applicant is that originally Kamala Devi wife of Late Ram Surat Singh, the mother of respondents 1 to 3 was their landlady and was owner of the disputed premises and after her death the respondents 1 to 3 and their two sisters became the owners and landlords of the disputed premises and the suit instituted by the respondents 1 to 3 alone without joining their two sisters who are also landlords is not maintainable. The Judge Small Causes held that the tenant/applicant had in a previous Suit No. 173 of 2000 instituted by him admitted the respondents 1 to 3 as landlords and the present suit instituted by the respondents 1 to 3 was therefore, maintainable. Consequently he decreed the suit on 19.8.2003. I have heard Sri Surendra Tiwari, learned Counsel for the applicant and Sri C.K. Parekh, learned Counsel for the respondents.

(2.) IT may be noted that in the present suit no evidence has been led by the respondents 1 to 3 and the only evidence on the record is that of the applicant/defendant. In the examination -in -chief which was given in the form of affidavit it was clearly stated by the applicant that Kamla Devi was the original landlord who had let out the building in dispute to him and that after her death her five children became the landlords and rent was being paid to them by the applicant. In his cross -examination the applicant stated that the rent was being paid some times to the daughters and some time to the sons but the receipts were given by the plaintiff/respondent Vijay Singh. As regards the admission said to have been made in the previous suit it is submitted by Sri Surendra Tiwari that the previous Suit No. 173 of 2000 was a suit for injunction restraining the respondents 1 to 3 alone from dispossessing the applicant from the house in dispute because the applicant was apprehending danger only from them. However, in his statement recorded in the earlier suit Vijai Singh the plaintiff in this suit has admitted that his mother Kamala Devi had let out the property to the applicant and rent was being paid to her and after her death the rent was being received by Vijai Singh on behalf of her five children. Neither the admission of Vijai Singh nor the statement by the applicant in his examination -in -chief and cross -examination of which reference has been made above have been considered by the Judge Small Causes. The finding has been recorded on the basis of the alleged admission made by the applicant in the previous suit without considering the circumstances and the other evidence on the record of that suit nor the evidence in the present suit. In view of the fact that it is undisputed that rent was originally being paid to Kamala Devi the mother of respondents 1 to 3 all the heirs of Kamala Devi would in the ordinary course have become the landlords unless evidence to the contrary is adduced. No oral evidence has been led by the respondents at all that the sons alone are the landlords. The finding of fact recorded by the Judge Small Causes that the respondents 1 to 3 alone were landlord is, therefore, not in accordance with law. The finding of the Judge Small Causes is, therefore, liable to set aside and he has to consider the question afresh.

(3.) ON the other hand, Sri Surendra Tiwari, learned Counsel for the applicant relied upon Jamir Ahmad v. Madhavanand and others : 1979 (5) ALR 156, in support of the proposition that where the notice terminating the tenancy did not purport to be on behalf of all the lessors it was held that the notice did not validly terminate the tenancy even though two of the persons who gave the notice were the landlords within the meaning of U.P. (Temporary) Control of Rent and Eviction Act, 1947. It is submitted by Sri Parekh that this decision has been overruled in Gopal Das v. Additional District Judge, 1987 (13) ALR 275 (FB). He relied upon Paragraphs 8 and 12 of Gopal Das's case. What has been said in Para 8 is that the learned Judge in Rangnath's case had observed that the two decisions of this Court in Zamir Ahmad and in Prayag Sons v. Motor Singh : AIR 1914 All. 160 are no longer good law in view of the decisions of the Supreme Court referred to by the learned Judge. In para 12 it was held that one co -owners can maintain an action for eviction without impleading the other co -owners. The Full Bench in Gopal Das did not itself express a view that the decisions aforesaid had been overruled. I have already referred to the Supreme Court decisions referred to in Rangnath's case and have found them to be distinguishable. The decisions of this Court in so far as they hold that a notice to terminate the tenancy must be on behalf of all the landlords have not been overruled. The observations made in Rangnath's case are obiter as on facts it was held that the sisters were not co -heirs and as the question involved in this case as I have already said was not decided in Rangnath's case. Indeed Rangnath's case has not decided the point, whether one of the landlords could maintain a suit for eviction of a tenant. In Tarachand v. Beshambhar Nath, 1981 RC 888, it was held that a notice of demand and termination of tenancy has to be issued by the entire set of landlords otherwise the suit is bound to fail. It is a different matter that one of the landlord's may give the notice on behalf of the entire body of landlords. One co -owner may also be the sole landlord and he would then be competent to give the notice. In Vijay Kumar Tandon v. Smt. Ganga Devi Rathor and another : AIR 1969 All. 403, it has been held that if all co -owners and co -landlords do not join in a notice for ejectment are not made even proforma defendant suit to eject a tenant cannot be brought about only by some of the co -owners. In Hiralal Jasrapuri and another v. IIIrd Additional District Judge, Gorakhpur and others, 1982 ARC 117, it was held that when there are two or more co -landlords, a suit for ejectment of the tenant filed only by one of them cannot be decreed and even a decree for rent cannot be passed unless the other co -landlords are impleaded as defendants. Reliance is also placed by the applicant's Counsel upon Gurdayal Saran Prasad v. District Judge, Dehradun and others : 1997 (31) ALR 353. That was a case under the U.P. Act No. 13 of 1972 and the decision given in that case was in reference to the special definition of landlord contained in section 3(j) by virtue of which a landlord is a person to whom the rent is payable. The decision, therefore, cannot be applied to cases, which are not covered by the statutory provisions of Act No. 13 of 1972. In view of what has been discussed above it has to be held that where there are several co -owners one of them alone cannot terminate the tenancy unless he alone is the landlord or has the consent express or implied of the other co -landlords. The revision is allowed. The order of the Judge Small Causes dated 19.8.2003 is set aside. The suit is remanded to the Trial Court for fresh decision after recording a finding on the question as to whether all the five children of Smt. Kamala Devi were the landlord or whether the plaintiff/respondents alone was the landlord. The suit be decided expeditiously.