GIRRAJ KISHORE Vs. TRILOKINATH VIMAL

JUDGEMENT

(1.) This is tenant's second appeal, Courts below having rendered non-concurrent judgements. At the stage of admission itself parties have exchanged counter and rejoinder affidavits and it was urged that since the only question involved in the appeal was about the validity of the notice the same may be disposed of at this very stage. In view of this the parties were heard on merits as well.

(2.) To have a hang of the dispute between the parties it will be better to comprehend the relevant facts. The plaintiff claiming to be the owner of an open piece of land claimed that the defendant was his tenant. A notice under Sec. 106 of the Transfer of Property Act was served whereupon the suit was filed for his eviction. The suit was resisted by the tenant on several grounds but the main ground was that the defendant was continuing as tenant from the time of the plaintiff's father. It was also contended that Keshav Dev and Jagannath were the real owners of the property and since all the heirs of the two had not joined in serving the notice, the plaintiff alone had no right to file the suit or to terminate the tenancy. In this connection it was also alleged that the widow, two daughters and one other son of Keshav Dev have not been joined in the suit and it was, therefore, defective on that ground also.

(3.) It is not disputed that the property was not let out by the plaintiff to the tenant. His tenancy was continuing from before it devolved on the plaintiff. The plaintiff's grandfather Angan Lal had two sons, Jagannath and Keshav Dev. Jagannath left behind him one son and two daughters. He died near about 1968 while Keshav Dev died in 1960-61 leaving behind him two sons and two daughters besides his widow. According to the plaintiff there had been a family settlement between his father and uncle and subsequently there was yet another settlement between himself and his brother, sister and mother after 1960 which was, however, not in writing. Admittedly, the defendant had been paying rent to the plaintiff ever since 1968. The trial Court dismissed the plaintiff's suit holding that he alone was neither competent to file the suit nor to validly terminate the tenancy. This decision has been reversed by the lower appellate Court relying upon a decision of this Court in Rang Nath v. State of U.P., 1984 All Ren Cas 642 and two decisions of the Supreme Court in Sri Ram Pasriha v. Jagannath, AIR 1976 SC 2335 and Smt. Kanta Goel v. B.P. Pathak, AIR 1977 SC 1599.