Narendra Kumar vs Dinanath

V.S. Kokje, J.—On 29.9.1977 this Second Appeal was admitted on the following substantial questions of law:

Whether the lower Court erred in law in holding that the tenancy of the Defendant was not validly determined?

Whether the suit was bad for non-joinder of necessary parties?

The Plaintiff-Appellant had sued the Defendant for eviction from the suit premises. The trial Court decreed the suit only for arrears of rent and dismissed it so far as ejectment was concerned on the ground that the tenancy was not terminated validly. On an appeal, the first appellate Court has maintained the judgment so far as validity of the termination of the tenancy but partly allowed the appeal holding that the rate of rent should have been decreed at the rate of Rs. 25/- per month from 16.4.64 onwards. Aggrieved by the aforesaid judgment, the Plaintiff has filed this Second Appeal.

It is common ground that the provisions of the M.P. Accommodation Control Act, 1961 do not apply to the suit accommodation. The case has, therefore, to be examined in the light of general law. It was argued on behalf of the Appellant that the dispute as regards non-joinder of necessary parties as also invalidity of notice determining the tenancy has to be taken specifically at the earliest opportunity. The defect must also be specifically pleaded, which according to the Appellant has not been done in this case. It was further argued on behalf of the Appellant that after the death of the original landlord, the Plaintiff alone, being a co-owner could determine the tenancy and sue for eviction even without his mother, the other co-owner joining him in determining the tenancy and filing the suit. It was contended that he was the Karta of his family and, therefore, could determine the tenancy on behalf of the joint family and could also sue in the capacity as Karta on behalf of the joint family. It was also contended that since the Plaintiff was receiving rent, he was the landlord and could determine tenancy alone and could also sue for ejectment alone. In support of his contentions the learned Counsel for the Appellant referred notes from Jabalpur Law Journals, M.P.R.C.J. and M.P. Law Journal. Since, they are not full reports, I have not taken these rulings into consideration as only full reports of judgments can be presumed to be correct reproduction of the judgments. However, a Full Bench decision of this Court reported in Harbans Singh (Lt. Col.) v. Smt. Margret G. Bhingardive 1990 JLJ 97 has been heavily relied upon by the Appellant in support of the contention that one co-owner could maintain an action for ejectment of a tenant.

In reply it is contended on behalf of the Respondent that the lease has not been validly terminated and the suit suffers from non-joinder of necessary parties. It is contended that the original landlord Kalyanmal died in the year 1961 leaving behind a son and widow. The Plaintiff is the son, who alone has issued the notice of termination dated 17.11.1962, which was served upon the Defendant on 20.11.62. The tenancy was terminated on Paushbadhi Amavasya falling on 26.12.62. It was also contended that the Plaintiff did not step into the witness box when allegations were made that negotiations were held with him. It is further submitted that after having held that the suit was bad for non-joinder then the rent part of the decree could not have been maintained. As regards the plea that the Plaintiff was the Karta of his joint family consisting of himself and his mother, it is contended that there was nothing in the pleadings about the existence of the joint family and the suit property being a joint family property. Distinguishing the Full Bench decision 1990 JLJ 97 (supra) it was contended on behalf of the Respondent that the said case and the cases of the Supreme Court on which it was based were all cases under the Rent Control Laws. According to the Respondent it was because of the definition of ''landlord'' in the various Rent Control Legislations that the Supreme Court has held in those cases that one of the co-owners also could sue as ''landlord''. According to the Respondent these cases do not apply to a case, to which Rent Control Laws are not applicable. In this connection decisions reported in Abdul Hamid. v. Bhuwaneshwar Prasad AIR 1953 Nag. 18, Sardarimal v. Narainlal and Ors. 1980 JLJ 110 were cited.

The parties were also heard on the cross-objections as to the validity of the decree for rent as well as rate of rent, preferred by the Respondent.

As regards the validity of the notice terminating tenancy, the following objections have been raised.

that the notice has been issued at the instance of only one of the co-owners;

that the extent of the premises was larger than the premises described in the notice and

that the tenancy has not been terminated with the expiry of the month of the tenancy, which was in accordance with the Gregorian Calendar and not in-accordance with the Hindi Calendar. Out of the aforesaid points raised, the first appellate Court has held the notice to be invalid only on the ground that Kalyanmal''s widow should also have been joined in giving the notice of termination of tenancy and for that reason the notice was invalid. The first appellate Court has after discussing the evidence has found that the month of the tenancy was in accordance with Hindi Calendar and commenced from Pratipada of Shukla Paksha. It has been held that as more than 15 clear days notice was given, the tenancy was validly terminated even if the tenancy was not made to expire on the last day of the month of the tenancy.

As regards the second and third point in paragraphs 9 and 10 of its judgment, the first appellate Court has elaborately discussed about the month of the tenancy and has after proper discussion of evidence drawn the correct conclusion that the; month of the tenancy commenced from Pratipada of Shukla Paksha of Hindi Calendar month. This finding is mainly based on the fact that even the defendan t had not taken a specific plea in the written statement that the month of the tenancy commenced from the first day of each English Calendar month. As regards termination of the tenancy with the expiry of the month of the tenancy, the Respondent has cited a case reported in Raja Behari Nath and Anr. v. Kailas Chandra Dutt AIR 1916 Cal. 576. The first appellate Court has relied on a short- note published in Parasram v. Ashokkumar MPLJ 1974 62 to hold that as 15 clear days notice was given to the tenant, the tenancy was validly terminated. The learned Counsel for the Appellant has brought to my notice a provision in the rent note (Ex. D-7), under which the tenant has undertaken to vacate the premises after a month on receiving notice from the landlord. This according to the learned Counsel for the Appellant is a contract to the contrary for the purposes of Section 106 of the Transfer of Property Act, 1882. A bare reading of the document Ex. D-7 shows that the parties had contracted for a months''s notice being given for terminating the tenancy by the landlord. Admittedly, the notice Ex.P-3 was issued on 17.11.62 and was received by the tenant on 20.11.62. The tenancy was terminated on 26.12.1962. Thus, a clear one month''s notice from the contract Ex. D. 7 was given. It, therefore, did not matter whether the tenancy was terminated at the expiry of the month of tenancy. The defect pointed out in the notice by the Defendant- Respondent that a Hindi Calendar month does not expire at mid- night and the notice has terminated the tenancy at the mid-night of Paush Badhi 2019 does not survive.

Let us now examine the challenge to the validity of the notice as well as the maintainability of the suit on the ground that one co-owner could not terminate the tenancy and could not sue alone for ejectment of the tenant. The Appellant has relied on the Full Bench decision of this Court reported in 1990 JLJ 97 (supra). In para 9 of the aforesaid ruling, the Full Bench has held that a co-owner can initiate eviction proceedings against tenant in absence of other co-owners if such co-owners do not object to the action. The decisions of the Supreme Court in Sri Ram Pasricha Vs. Jagannath and Others, Kanta Goel Vs. B.P. Pathak and Others, and Pal Singh Vs. Sunder Singh (Dead) by Lrs. and Others, were relied upon for the preposition. The learned Counsel for the Respondent has contended that the Full Bench decision of our Court and the Supreme Court cases on which it is based are of matters arising out of cases in which Accommodation Control Legislation was involved. According to the learned Counsel for the Respondent the cases not involving the Rent Control Legislation are not governed by the aforesaid Full Bench decision or the Supreme Court cases referred there in. According to him, it is because of the definition of ''landlord'' in various Rent Control Legislations that the Supreme Court and the Full Bench of this Court have held that one co-owner could maintain an action for ejectment against a tenant. According to the learned Counsel for the Respondent cases which are governed purely by the Transfer of Properly Act are not covered by the aforesaid decisions and the settled law under the Transfer of Property Act right from AIR 1953 Nag 18 (supra) would be applicable in the case. The learned Counsel has also cited the decision in Second Appeal No. 413/73 decided by this Court on 23.2.1976. Relying on the decision in AIR 1953 Nag. 18, J.S. Verma, J. of this Court (as His Lordship then was) held that all the co-lessors must join in determining the tenancy. The original record of Second Appeal No. 413/73 was called and the original judgment was perused. The case arose out of eviction suit on the grounds under Clauses (a) (c) (h) of Sub-section 1 of Section 12 of the M.P. Accommodation Control Act, 1961. In view of the later Supreme Court judgment and the Full Bench case reported in 1990 JLJ 97, this judgment cannot be followed because it is no longer a good law. It is not a case under the general law to which Rent Control Legislation does not apply.

In Shri Ram Pasricha''s case (supra), no doubt the Supreme Court was seized of the matter under the West Bengal Premises Tenancy Act and was considering the position of the landlord as an ''owner'' u/s 13(1)(f) of that Act. However, in paragraphs No. 28 and 29 of the judgment, the Supreme Court has considered and viewed the question on a larger canvass. It reproduced the excerpts from ''Salmond on jurisprudence'' cited by the learned Counsel and ultimately observed as follows:

Jurisprudentially it is not correct to say that a co-owner of a property is not its owner. He owns every part of the composite property along with others and it cannot be said that he is only a part owner or a fractional owner of the property. The position will change only when partition takes place. It is, therefore, not possible to accept the submission that the Plaintiff who is admittedly the landlord and co-owner of the premises is not the owner of the premises within the meaning of Section 13(1)(f). It is not necessary to establish that the Plaintiff is the only owner of the property for the purpose of Section 13(1)(f) as long as he is a co-owner of the property being at the same time the acknowledged landlord of the Defendants.

It will be clear from the extract from the judgment in Shri Ram Pasricha''s case that the Supreme Court held as a general rule that an owner of the premises owns every part of the composite property along with the others and cannot be said to be only a part-owner or a fractional owner of the property. This general principle has been applied in the case under the West Bengal Premises and Tenancy Act and the term ''owner'' appearing in Section 13(1)(f) of that Act has been construed to include an owner acting alone also.

The ratio of Shri Ram Pasricha ''s case was followed in Kanta Goel''s case (supra). In para 7 of that judgment, the Supreme Court re-affirmed its view that a co-owner of a property owns every part of a composite property along with the others and cannot be deemed to be a fractional owner.

In Palsingh''s case (supra) again the view taken in Shri Ram Pasricha''s case and Kanta Goel''s case was re-affirmed.

Thus, the settled view now is that a co-owner can maintain an action for eviction unless the other co-owners object. In this case it has not been shown that there was any objection raised by the other co-owner to the suit. What applies to a suit by a co- owner applies to issue a notice by the co-owner. If the co-owner is entitled to file a suit for eviction alone, there is no reason why he should be held to be disentitled from terminating the tenancy of a tenant alone. It is, therefore, held that the notice of termination of tenancy was not invalid and that a suit filed by a co-owner was maintainable in this case.

As regards the cross-objection, the first part of it relates to the jurisdiction of the Court granting a decree even for arrears of rent after having held the suit to be affected by a non-joinder of necessary parties would not survive as the tenancy is being held to be validly terminated and objection as regards non-joinder is being over-ruled. As regards the rate of rent, it is purely a question of fact. The restriction of Section 100 of the CPC would even apply to a cross-objection in a Second Appeal. There being no substantial question of law involved in the determination of rate of rent, the cross-objection cannot be upheld.

In the result this appeal is allowed. The judgment and decree of the lower Courts are set aside. The suit is decreed to the extent of the two Kothas which were found to have been let out to the Defendant by the lower Courts and are shown as sayban, tin, Dhaliya etc. in Ex. P-l (map). The Plaintiff is not entitled to a decree for the portion on which house and hotel, which were held not to have been let out, are situated. The decree passed by the first appellate Court as regards the arrears of rent is maintained. There shall be no orders as to costs, in the circumstances of the case.