Ramkishandas vs Kalicharan

P.R. Sharma, J.—This is a Plaintiffs'' Second appeal whose suit for ejectment has been dismissed by both the lower Courts, in so far as it related to a portion of the rented premises occupied by Respondent No. 2 Bhura, a sub-tenant of Respondent No. 1 Kailcharan the principal tenant.

The suit was filed by Ramkishandas, Ghanshyamdas and Shyamsunderdas against Kalicharan alleging that the latter had obtained the house in dispute on rent from them, that he did not pay any rent after the 27th of November, 1951 and had kept a sub-tenant in the house without the Plaintiffs'' consent. It was also alleged that Kalicharan did not pay the arrears of rent inspite of a formal demand. On 28-10-1953 a compromise deed was put up, according to which Kalicharan agreed to pay rent amounting to Rs. 115-7-0 as arrears of rent and to give vacant possession of the house in question by the 1st of December, 1933. The compromise was verified by the Court, but no decree was then passed on its basis. On 2-12-1953 Respondent No. 2 Bhura applied to the Court stating that he had been occupying a portion of the house as a tenant holding from the Plaintiffs for the last 12 years, that the suit between the Plaintiffs and Kalicharan was collusive in nature and that Kalicharan had, therefore, admitted the Plaintiffs'' claim in its entirety. Kalicharan bad at first filed a suit for ejectment against Bhura; but it was held that Bhura was the tenant of the present Plaintiffs and Kalicharan''s suit was, therefore, dismissed. Thereafter the present suit was filed by the Plaintiffs in collusion with the Defendant Kalicharan in order to secure Bhura''s eviction. Bhura, therefore, pleaded that he should be joined as a party to the suit The trial Court allowed his prayer, with the result that Bhura was joined as a Defendant in the case. The Plaintiffs amended their plaint and Kalicharan once again put up a written statement it admitting the Plaintiffs'' claim. Kalicharan further pleaded that he had sub-let to Bhura on a monthly rent of Rs 2-8-0 one half portion of the house leased out to him by the Plaintiffs. Bhura pleaded that the deed by which the lease in favour of Kalicharan was created has been deliberately suppressed by the Plaintiffs.

The trial Court held that Bhura was a sub-tenant of Kalicharan with he connivance of the Plaintiffs. The trial Court, therefore, dismissed the Plaintiffs'' suit in so far as it related to the portion of the house occupied by Bhura. This decree was upheld on appeal. The Plaintiffs have, therefore, preferred this Second appeal.

During the pendency of the appeal Shyamsunderdas died on 30- 0 1959. This fact was brought to the notice of this Court by the Respondent No. 2, Bhura in his application dated 29-11-1960. The Plaintiffs Nos. 1 and 2 namely Ramkishandas and Ghanshyamdas, have by their application dated 20-12-1960 stated on solemn affirmation that the property in dispute was the joint amily property of all the Appellants who were members of a joint Hindu family of which Ramkishandas was and still is the ''Karta''. The said Appellants, therefore, contend that they have a right to prosecute the appeal without bringing on record the heirs of the deceased Shamsunderdas. A counter-affidavit has been filed by Bhura stating that Ramkishandas and Shyamsunderdas were partners of the firm Ganesh Ram Gopal situate at Shivpuri and that they do not constitute a joint Hindu family. The Respondent No. 2 Bhura, therefore, contends that the cause of action does not survive solely to Appellants Ramkishandas and Ghanshyamdas.

The suit in the present case was filed by three persons, all of whom c aim d to be the co-owners of the house in suit On the death of Shyamsunderdas his legal representatives were not brought on record within 90 days from the date of his death The appeal has, in so far as he is concerned, therefore, abated. The learned Counsel for the surviving Plaintiff-Appellant contends that the three Plaintiffs in the present suit constituted a joint Hindu family of which Ramkishandas is the Karta. There are, however, no allegations in the plaint to this effect. The decision in Hirjibhai v. Balarambhai, AIR 1956 Nag. 125 can have no application to the present case inasmuch as there is nothing in the plaint to show that Ramkishandas was suing in his representative capacity. Reliance was also placed on the case of Maganlal Dulabhdas Vs. Bhudar Purshottam, in which it was laid down that one of the co-owners can maintain a suit to eject a tenant on sufferance without the constant of the other co-owners. In that case the other co-owner was, however, joined as a party to the suit. In Maganlal''s case (supra) the tenancy was besides for a fixed term which had expired. It was observed that the position of a tenant on sufferance was similar to that of a trespasser and, therefore, the general rule that one of the several Hindu co-owners of property cannot maintain a suit for ejectment without the consent of the other co-owners would not apply. The present case, however, stands on a different footing. The lease in favour of Kalicharan was not for a fixed term. The Plaintiffs having been held to be in collusion with the principal tenant Kalicharan, the notice served upon him would not have the effect of determining the subtenancy of Bhura; since fraud and collusion vitiate all proceedings. Where the notice to quit is given by all the co-owners the suit for ejectment may be filed by one of the co-owners provided the other co-owners are join d as parties to the suit. (See Jam on Gomaz v. Bam Kumar, 1934 Cal. 127. It was held in Balaji Bhiknaji v. Gopal, (1878) 3 Bom. 23 that one of several tenants-in-common, joint tenants or co-parceners, unless be is acting with the consent of others as manager of the estate, is not at liberty to enhance rent or eject at his pleasure. Balkrishna v. Moro, (1896) 21 Bom. 154 the Court even went further and held that a co-parcener who is a manager cannot even with the consent of his co-sharers maintain a suit by himself and in his own name to eject a tenant who has failed to comply with a notice calling upon him to pay enhanced rent. In such a suit all co-sharers must be made parties. Both of these cases were cited with approval by Bromfield J. in Vagha Jesing Vs. Manilal Bhogilal Desai, .

A case very much similar to the present case came up before the Allahabad High Court in Rameshwar Prasad v. Shyam Beharilal AIR 1961 All. 741. In that case the Plaintiffs'' suit for ejectment was decreed against the tenant, but was dismissed against the sub tenant. All the Plaintiffs appealed, but during the pendency of appeal one of them died without his legal representatives being brought on record within the prescribed period. It was held that since the rights and interests of the surviving Appellants were joint and indivisible with those of the deceased, there would be inconsistent and contradictory decrees if the appeal was successful; the appeal could not, therefore, be heard qua the surviving Appellants. In that case too it was held by the lower appellate Court that the suit was collusive as between the Plaintiffs and the principal tenant. In the circumstances the sub-tenancy in favour of Defendant No. 2 was held not to have been validly determined. In the present suit there are no materials on the basis of which the share of the surviving Appellants in the house in question could be ascertained. As co-owners their inte(sic) rest in the property was joint and on the abatement of Shyamsunderdas''s appeal, the decree passed by the lower appellate Court dismissing the suit for ejectment as against Defendant No. 22 shall, in so far as the deceased Plaintiff is concerned, stand. In the event of the present appeal being allowed there would be inconsistent decrees; since it is not possible to separate the interest of Shyamsunderdas from that of the surviving Appellants in the subject-matter of the suit.

The right to sue does not survive to the remaining Appellants, and the appeal having abated in so far as Shyamsunderdas is concerned the surviving Appellants cannot proceed with it for the reasons mentioned by me above.

The appeal shall stand dismissed in so far as the surviving Appellant are concerned. In the circumstances there shall be no order as to costs.