ABDUL SAMI Vs. MOHAMMAD ASHFAQ

JUDGEMENT

(1.) THIS appeal by the plaintiff arises out of a suit filed by him for ejectment of the defendants from the premises in question and for recovery of arrears of rent and damages. The plaintiff claimed to be the landlord of the said premises. The defendant Mohd. Ashfaq Ahmad is occupying the said premises pursuant to an allotment order dated 18-1-1950 (Ext. A-19) wherein Abdul Ali, father of the plaintiff, was mentioned as landlord, it is common ground that for certain period Abdul Ali realised rent from the defendant No. 1 (hereinafter called in defendant). The plaintiff in his deposition had stated before the court below that Abdul Ali died iu the year 1964 survived by two sons and four daughters. Abdul Sami, plaintiff is one of the sons of Abdul Ali. The other son Abdul Qavi Zia is now residing in Canada. One of his daughters has migrated to Pakistan. The first receipt issued by the plaintiff to the defendant is dated 23-2-1964 (Ext. A-14). The other two receipts issued by the plaintiff to the defendant are Ext. A-15 dated 8-3-1964 and Ext. A-16 dated 12-4-1964. It is also not in dispute that certain rent pertaining to the said premises was deposited by the defendant in the court of Munsif under Section 7-C of U. P. (Temporary) Control of Rent and Eviction Act (III of 1947) (hereinafter called the Act) on the ground that a bona fide doubt had arisen in his mind as to who was the landlord of the said premises. Thereafter the present plaintiff-appellant had initiated proceeding against the defendants under section 7-B of the Act. Ultimately the plaintiff gave a notice dated 30-12-1966 claiming arrears of rent from 1-1-1965 to 30-11-1966 amounting to Rs. 1150. A copy of that notice is Ex. 7. It was served on the defendants on 10-1-1967. The plaintiff thereafter filed a suit for the reliefs aforementioned on 10-2-1968 which was ordered to be registered on 12-2-1968. Before the trial court the plaintiff filed certain documents in support of his contention that he was the sole landlord of the premises in suit.

(2.) THE suit was resisted by the defendant on a variety of grounds. It was pleaded, inter alia, that the property originally belonged to the mother of the plaintiff who died in the year 1957. THE plaintiff along with his brother and sisters became the owners of the said property, hence the suit filed by the plaintiff alone was not maintainable. In support of their respective contentions the parties file certain documents. It will be relevant to mention at this stage that the plaintiff filed a certified copy of the written statement dated 11-1-1968 which had been filed in the proceedings under Section 7-0 (Ext. 4). He also filed an affidavit of his brother Abbul Qavi Zia which he had sworn in Canada on 9-5-1968 which is Ext. 10. Further he filed an affidavit of his sister Smt. Shamshunnisa Begum dated 31-3-1967 which is marked Ext. 13. THE plaintiff relied on the said documents to show that he alone was the landlord of the said premises. In his sworn testimony the plaintiff also set up a gift said to have been made in his favour by his maternal grand mother who was alleged to be the owner of the property.

(3.) I was taken through the plaint, written statement, judgments of the courts below and the relevant documents on record. True it is that the plaintiff had not based his claim on the alleged gift. He had maintained in the plaint that he is the sole landlord of the premises in question. The defendants refuted this allegation and contended that the other brother of the plaintiff and his sisters were also the landlords of the said premises. I have to see whether the plaintiff had succeeded in establishing that he was the sole landlord. As indicated earlier the . defendant, Mohd. Ashfaq Ahmad came to occupy the premises in question in pursuance of an allotment order made in terms of the provisions of the Act. The father of the plaintiff, Abdul Ali was mentioned therein as landlord. Abdul Ali thereafter realised rent from the defendant. The maternal grand mother of the plaintiff died in 1964. The allotment was made in the year 1950. From 1950 onwards even during the lifetime of maternal grand mother of the plaintiff the rent was realised by Abdul Ali. There is nothing on the record to show that Smt. Batulunnisan, the maternal grand mother of the plaintiff ever realised rent form the defendant. So for all intents and purposes Abdul Ali was the landlord of the defendant. Abdul Ali also died in 1964. The exact date of his death, however, is not known. The first receipt which the plaintiff issued to the defendant No. 1 is dated 23-2-1964 (Ext. A-14). It cannot therefore be said with any certainty as to whether this receipt was issued by the plaintiff during the lifetime of Abdul Ali or after his death. The other two receipts Ext. A-15 and Ext. A-16 were also issued in subsequent months, i.e. March and April, 1964 respectively. No other receipt issued by the plaintiff in favour of the defendant is on the record, but it appears that he used to realise rent of the premises in question. It is admitted by the defendant No. 1 in paragraph No. 22 of his written statement that the plaintiff had been collecting the amount towards rent from the defendant No. 1 upto 1966 through the defendant No. 2 and he did not issue any receipt after 1-1-1965. The averment made in paragraph 22 of the aforesaid written statement goes to show that the plaintiff realised rent from the defendants even after the death of his father which took place somewhere in 1964. Now the question is whether this fact would make the plaintiff sole landlord of the premises in question. His brother and sisters have no doubt stated in Exts. 4, 10 and 13 that they have no claim in the premises in question. Ext. 4 is the written statement dated 11-1-1968. It was filed long after the notice Ext. 7 under section 106 Transfer of Property Act was given. Ext. 10, as pointed out earlier, is the affidavit of the brother of the plaintiff dated 9-5-1968. This too was sworn long after the notice under section 106, Transfer of Property Act and even after about three months of the institution of the suit Ext. 13 dated 31-3-1967 is the affidavit of Smt. Shamsunnisa Begum, sister of the plaintiff filed in the suit which has given rise to this appeal. There was no disclaimer by the brother of the plaintiff prior to the issuance of the notice and the institution of the suit. The plaintiff, therefore, could not contend while filing the suit, or while giving the notice under section 106, Transfer of Property Act that he was the sole landlord. His brother had not till then stated that he had no right, title or interest in the said property. By definition, as given in the Act 'landlord' means a person to whom rent is payable by a tenant in respect of any accommodation and includes the agent, attorney, heir or assignee of such person. Landlord as defined under the Act is, therefore, one to whom the rent is payable. He need necessarily be one to whom rent is actually paid. There may be only one landlord of a premises and in that event the rent is payable and will be paid to him alone. But there may be a premises which has several landlords. The rent of such a premises will be payable to all those landlords who may realise rent jointly or who may authorise one of them to realise rent for and on behalf of all. Thus one of the landlords may realise the rent for the collective body of landlords, but in such a situation the landlord realising the rent cannot be said to be the sole landlord of the premises. The realisation of rent will be by or under the authority of all concerned. That being sq, the fact that the plaintiff was realising rent would not by itself be sufficint to hold that he was then sole landlord of the premises in question. Indubitably, Abdul Ali, the father of the plaintiff was the sole landlord. On his demise the right of lessor devolved on his heirs, namely, his sons (including the plaintiff) and his daughters by inheritance and all of them became co-landlords. No doubt, the plaintiff alone realised rent from the defendant after the demise of Abdul Ali, but it is not the case of the plaintiff that he realised the rent under the authority of the other co-landlords as well. On the contrary, he has alleged that he is the sole landlord and has realised the rent from the defendant in that capacity. Even his brother and sisters do not say in their affidavits that they had ever authorised the plaintiff to recover the rent for and on their behalf as well. The rent was payable to all the heirs of Abdul Ali and not to the plaintiff alone. The fact that the plaintiff alone had physically collected rent from the defendant cannot therefore make him the sole landlord as defined under the Act. In fact he is only a co-landlord.