NAWALCHAND Vs. DALICHAND

JUDGEMENT

(1.) The appellant-plaintiff feels aggrieved by judgment and decree dated 8-2-1984 passed by Shri R. K. Trivedi, District Judge, East Nimar, Khandwa in Civil Appeal No.11 B/1982 affirming the judgment and decree dated 25-6-1982 passed by First Additional Civil Judge, Class II, Khandwa in Civil Suit No. 15B 1982, dismissing his suit for recovery of his share of rent and seeks to challenge the same by filing this appeal under S.100, Civil P.C.

(2.) That the appellant and respondents Nos.2, 3 and 4 are the owners of a residential house situate at Ramganj Ward No.13, Khandwa, in occupation of the respondent No. 1 as tenant, on payment of rent of Rs. 115/- per month is admitted. There is no dispute, at this stage, that the suit accommodation was let out to the respondent No. 1 on 1-11-1964 on his executing rent-note (Ex. P2). The appellant filed the suit alleging that the respondent No. 1 has not paid the rent from 1-7-1973 to 30/06/1976 amounting to Rs. 4,140/-. According to him, he has only 1/4th share in the property and is, therefore, entitled to only 1/4th of the said arrears of rent. He thus claimed a decree in his favour for Rs. 1035/- only. The respondents Nos. 2, 3 and 4 were joined as Pro forma-Defendants. They, however, did not enter appearance. First-respondent Dalichand objected to the appellant's suit on the ground that tenancy could not be splitted up and, therefore, the suit was not maintainable. He also submitted that the share of the appellant suit-house was 1/12th and not 1/4th. The Trial Court dismissed the suit on the ground that the suit for recovery of a portion of rent was not maintainable as the tenancy could not be sub-divided. The learned lower Appellate Court has affirmed the said view and hence this appeal.

(3.) The respondent No. 1 has also pleaded that he has, sale-deed dated 24-2-1975, purchased the share of respondent Smt. Shantibai in the suit-house and is the owner of the same to that extent. (See paragraph 3 of Written Statement). This fact introduces an interesting elements in the suit, and makes it almost impossible for all the owners to file the suit for recovery of the rent. Even if the appellant and respondents Nos. 2 and 4 join together to file the suit against this respondent, he can take the plea that the suit was not maintainable as all co-owners have not prayed the relief. If his objection is sustained, he can avoid payment of rent all times to come. On the other hand, if suit by one of the co-owners is permitted and discharge by such an owner is treated as valid discharge on behalf of all the owners, the respondent No. 1 would be required to pay the rent of that part of the tenancy of which he has ceased to be the tenant and become owner. In such a situation, he will first pay rent to one of the co-owners and thereafter recover his part of the rent from him. In either way, the law and the judicial process face the challenge to effectively meet this new situation and ensure justice between all the parties.