MAGANLAL DULABHDAS Vs. BHUDAR PURSHOTTAM

JUDGEMENT

(1.) The plaintiff in this case sued defendant No. 1 to recover possession of a certain shop situated at Nandurbar with Rs. 50 per month as mesne profits. He alleged that he and Bhagvandas, defendant No. 2, were partners and owners of the shop named Maneklal Jagjivandas ; that the tenancy of defendant No. 1 terminated on February 1, 1923 ; that he had given notice to defendant No. 1 on January 13, 1923, to vacate the premises; and that defendant No. 2 was joined as a defendant because he did not join with him in the suit as a plaintiff. Defendant No. 1 pleaded that as a matter of fact there was a written lease for a period of three years from Samvat 1976, and that as a fact the oral tenancy, which was to expire on February 1, 1923, was extended for one year ; that the notice given by the plaintiff alone was not a good notice, and that the plaintiff could not maintain the suit.

(2.) On the issues framed, the trial Court found that as a fact the tenancy was for a fixed period from February 12, 1922, to February 1, 1923 ; that after the expiration of that period there was no further acceptance of the tenancy on the part of either of the owners, and that no notice from the landlord was necessary. He was of opinion that, after February 1, 1923, defendant No. 1, had no right to hold the property as a tenant, and accordingly decreed the plaintiff's claim for possession, and allowed Rs. 50 per month as rent, from the date of suit till recovery of possession or expiry of three years from the date of the decree. He held that the suit by one of the co-owners was maintainable, and that the claim by the plaintiff, even though defendant No. 2 did not join him in the suit, was good.

(3.) From the decree that was passed by the trial Court defendant No. 1 appealed. The learned District Judge in effect accepted the facts as found by the trial Court. In fact he says that it was common ground before him that the tenancy was to expire on February 1, 1923, and the receipt of notice dated January 13, 1923, was not in dispute. The first issue that he framed was whether the plaintiff being one of the two co-owners was entitled either to give notice in his own name or to bring this suit. On that point ho was of opinion that defendant No. 2 was a necessary party, but having refused to join as co-plaintiff, and having been joined as defendant No. 2, the suit was not defective. But the further question which the learned Judge considered was whether the plaintiff was entitled to sue without the consent of the co-owner. He was not satisfied, under the circumstances of the case, that defendant No. 2 was consenting to the plaintiff's claim for possession. Accordingly, applying the rule which has been laid down in several decisions of this Court, to which he has referred, he came to the conclusion that, without the consent of defendant No. 2, the plaintiff could not alone maintain the claim for possession. He also observed in his judgment that the house being joint property of two Hindus it was not possible to give the plaintiff a decree for his own share. He was satisfied on the evidence that defendant No. 1 failed to prove that defendant No. 2 had agreed to his continued occupation of the house. He also held that it was not a case of holding over under Section 116 of the Transfer of Property Act. In the view, however, which he took as to the necessity of defendant No. 2 a consent to the plaintiff's claim for possession, he allowed the appeal, reversed the decree of the trial Court, and dismissed the plaintiff's suit.