Y. Sai Baba vs Rawalmal Narayandas and Another

V. Bhaskar Rao, J.—This revision petition is filed against the judgment in R.A. No. 140 of 1987 on the file of the Chief Judge, City Small Causes Court, Hyderabad, dated 4-10-1980 setting aside the eviction order passed by the Additional Rent Controller, Secunderabad in R.C.C.No. 233 of 1983, dated 10-3-1987. The revision petitioner will be referred to as landlord, his step mother who is impleaded as respondent No. 2 as landlady and the contesting respondent No. 1 as tenant.

The landlord filed the eviction petition on two grounds viz., (1) that the tenant committed wilful default in payment of rent from March, 1983 to July, 1983 and (2) that the demised premises is required for bona fide occupation of the landlord. The landlord''s case is that the premises originally belonged to late Laxminarayana, father of the landlord and husband of the landlady and it was let out to the tenant during his life time. After the death of the original landlord on 1-4-1969, the landlord and the landlady have been receiving the rents at the rate of Rs. 325/- each from the tenant. While so, he failed to pay the rent to the landlord from 1-3-1983 to 30-7-1983 amounting to Rs. 1,625/- and it amounts to wilful default. It is also his case that he is working as a Salesman in the cloth market and decided to start his own business in cloth in the demised premises and he does not possess any other building of his own in the twin cities and hence he needs the same for commencing cloth business. As the landlady has not been co-operating with the landlord who is seeking eviction of the tenant, she has been impleaded as one of the respondents.

The tenant resisted the above petition by denying the allegation that he committed wilful default in payment of rent from 1-3-1983 to 30-7-1983. According to him, both the landlord and the landlady used to collect the rents from him at the rate of Rs. 325/- each ever since it was increased from Rs. 300/-to Rs. 650/- and subsequently he surrendered the additional godown to the landlady in April, 1983 and since then he has been paying Rs. 300/- to the landlady and Rs. 325/- to the landlord. It is also averred in the counter that there was a practice of the landlord visiting the premises to collect the rent since the inception of the tenancy and that after his death, the landlord and the landlady were going to the tenant''s shop and collecting the rents and that during the period from March, 1983 to August, 1983, the landlord did not come to collect the rent and hence, the default cannot be characterised as wilful default. As regards bona fide requirement it is averred that the landlord has no experience in the cloth business and he has no capacity to commence the business and the premises is not suitable for such business, as it was being used for aluminium, brass and stainless steel utensils. According to him eviction petition is not maintainable by the co-owner.

On the above pleadings, the Rent Controller formulated the following points for consideration:

Whether this petition is not maintainable?

Whether the respondent has defaulted in payment of rents in respect of the demised premises? If so, whether the respondent has established that the default committed by him is not wilful and deliberate?

Whether the petitioner bona fide requires the petition schedule premises for his personal occupation?

During the enquiry, the landlord examined himself as PW. 1 and the tenant as RW. 1. Exs. P-1 to P-9 have been marked for the landlord and Exs. R-1 to R-50 have been marked for the tenant.

After scrutinizing the oral and documentary evidence, the learned Additional Rent Controller held on point No. 1 that the petition is maintainable as one of the co-owners is entitled to obtain an order of eviction provided the other co-owner is impleaded as a respondent; on point No. 2 he held that the tenant has committed wilful default in payment of rent and on point No. 3 he held that the requirement of the landlord is bona fide, and accordingly the eviction petition has been allowed.

Aggrieved by the above order, the tenant preferred an appeal to the Chief Judge, City Small Causes Court, Hyderabad, who formulated the following three points for consideration :

Whether the appellant is a wilful defaulter in payment of rent for the default period of five months from 1-3-1983 to 31-7-1983?

Whether the first respondent bona fide requires the demised premises for commencing cloth business?

Whether the eviction petition is not maintainable because the second respondent, who is the co-owner does not support the eviction of the appellant from the demised premises ?

On a consideration of the material on record, the learned Chief Judge reversed the finding of the Additional Rent Controller as to the nature of default being wilful, although it is held that there was default. He has, however, confirmed the finding as to the bona fide requirement of the premises by the landlord. On the question of validity of the eviction petition by a co-owner, it is held that the petition is not maintainable. Accordingly, the tenant''s appeal has been allowed and the eviction petition has been dismissed. Hence, the revision by the landlord.

Sri T. Veerabhadraiah, (sic.) learned Counsel for the petitioner has strenuously contended that the eviction petition by a co-owner is valid and maintainable and relied on a judgment in Damodaram Chetti v. Vungarala Rukmaniamma, 1967- II An.W.R. 200 = 1967 (1) ALT 25 (NRC). As regards the grounds for eviction, he pointed out that there are concurrent findings of both the Courts below on the question of bona fide requirement of the landlord and the same is sustainable. As regards the wilful default, he argued that the so called practice of the landlord visiting the shop of the tenant for the purpose of collecting the rent is to be established by the tenant and that the burden has not been discharged by him and that there is no explanation by the tenant for not sending the rent by money order to the landlord for nearly five months. These circumstances, according to him, are sufficient to hold that the tenant has committed wilful default in payment of rent.

On the other hand, Sri P. Ramachandra Reddy, learned senior Counsel contended that a co-owner is not entitled to seek eviction of the tenant of the demised premises because of a split in the tenancy on account of the landlord and landlady agreeing to receive their respective shares of Rs. 325/- each and that the only course open to him is to file a suit for partition. He relied on the judgments in Midhapur Co. v. Naresh Narain, AIR 1924 P.C. 144; Boloram Kumar v. Dandiram Kumar , AIR 1950 Assam 1 and Kovummal Ammad v. Arangadan Ammad , AIR 1936 Madras 666.

I carefully perused the entire record and considered the above contentions. On the factual aspect, it is not in dispute that landlord and landlady have inherited the demised premises on the death of Laxminarayana on 1-4-1969 and both of them have been sharing the rent equally Ever since that day. The relations between the landlord and his step mother are not said to be cordial and hence she has been impleaded as one of the respondents to the eviction petition on the ground that she has not been co-operating with the landlord in seeking eviction of the premises. It is also not in dispute that the rent payable to landlord at the rate of Rs. 325/- per month for the period from March, 1983 to July, 1983 has not been either paid or tendered. The defence is that there is a practice of the landlord visiting the shop and collecting the rent. It is on record that the landlady has collected her rent for the relevant period. Parties examined themselves as PW. 1 and RW. 1 and each of them gave divergent versions and hence oral evidence cannot be relied upon being oath against oath. Except the oral evidence of RW. 1, there is nothing to point out that there was a practice of the landlord visiting the premises to collect the rents. Even otherwise there is no reason for the tenant to wait for five long months. When the landlady has collected her share, nothing prevented the tenant from sending the share of the landlord by money order after waiting for some reasonable period or he could have issued a notice calling upon him to indicate either his bank account or how the rent may be sent. These circumstances have weighed in favour of the landlord before the learned Rent Controller and I am inclined to accept the finding of the learned Rent Controller on this point. As already indicated above other ground of bona fide requirement has been held in favour of the landlord by both the Courts below and it is not in question before me. That is, insofar as facts are concerned.

Now the only question that falls for consideration is whether the petition is maintainable as one of the co-owners is seeking eviction by imp leading the other co-owner as a respondent. This very question came up for consideration before a Division Bench of this Court cited supra (1). In that case, the wife and the husband were joint owners of the house under a deed of settlement. and it was in occupation of a tenant under a lease deed executed in favour of both the wife and husband. The tenant agreed to pay rent to both of them and to obtain receipts for the same. On the expiry of the lease, the tenant entered into a lease deed with the husband alone and issued a legal notice to the wife stating that she has no right to the premises and that he has entered into a lease deed with her husband and was paying rents to him. The wife issued a reply notice asking the tenant to pay the rent and thereafter, she filed an eviction before the Rent Controller on the ground that he has committed default in payment of the rents and denied her title to the premises. She impleaded her husband as one of the respondents and he supported the tenant. Thus, the question whether an eviction petition by a co-owner is maintainable or not has been raised and it came up before a learned single Judge P. Basi Reddy, J., who referred the same to the Division Bench for an authoritative pronouncement on the question. On consideration of a catena of decisions, the Division Bench held :

"One of the joint owners or co-owners (of a building) can ask for eviction of a tenant who has been let in by both the owners (wife and husband) notwithstanding that the other co-owner (husband) or co-owners are not willing to join the plaintiff or the petitioner in asking for eviction and on the other hand, do not want the tenant to be evicted provided such a co-owner or co-owners are made parties to the suit or petition. If this is not the law, cases can be envisaged where one of the co-owners in collusion with the tenant can effect complete dispossession of the other co-owner by merely getting the tenant to acknowledge his sole possession and title. When a co-owner is entitled to possession of immovable property in entirety along with the other co-owners it is not permissible for one of the co-owners, subsequently in league with the tenant to permit him to be in possession of the whole of the premises on behalf of himself alone which in effect will oust the other co-owners of the possession of the property to which he is of right entitled".

I have once again adverted to the facts of this case in order to see whether the ratio laid down by the Division Bench in the above case is applicable or not. The demised premises originally belonged to Laxminarayana who died on 1-4-1969 leaving behind the landlord and the landlady as Class-I heirs to inherit the demised premises equally. The rent payable was being shared by both of them equally till February, 1983. Thereafter, the landlady has been collecting her share of rent. But the same has not been paid to the landlord from March, 1983 to July, 1983. I have already held above that non-payment of rent for the above period to the landlord would amount to wilful default. The landlord who has been working as a private servant in a cloth shop decided to start his own cloth business and he sought for eviction on these two grounds. It is also noteworthy that his step-mother did not co-operate with him in this regard and hence he has impleaded her as second respondent. Thus, the facts and circumstances of this case are almost identical to the case cited above.

I shall now consider the decisions relied upon by Sri P. Ramachandra Reddy, learned Senior Counsel for the respondent No. 1. In the judgment cited supra (2) it was held:-

"Partition is the remedy which a co-owner has if he and the other co- owners cannot agree as to how the lands which they hold in common should be managed.

Where lands in India are held in common by co-sharers each co-sharer is entitled to cultivate in his own interests in a proper and husband like manner any part of the lands which is not being cultivated by another of his co-sharers but he is liable to pay compensation in respect of such exclusive use of the lands. Such an exclusive use of lands held in common by a co-sharer is not an ouster of his co-sharers from their proprietary rights as co-sharers in the lands.

No co-sharer can, as against his co-sharer, obtain any joint right, rights of permanent occupancy, in the lands held in common, nor can he create by letting the lands to cultivators as his tenants any right of occupancy in them".

I have read the above judgment and I find that the facts are altogether different. In that case lands are comprised of an estate and the proprietary interest in the lands is vested in the plaintiff and the Midnapur Company as co-owner. The question that arose there was as to the remedy open to a co-sharer if the other co-sharer cannot agree as to how the lands should be managed and in that context it has been held that the partition is the remedy open to them. I am unable to apply the above decision to the facts of this case. Another decision relied on by the learned Counsel for the tenant is cited supra (3). In that case, one of the co-owners was inducted into exclusive possession of the property with the consent of the other co-owners and the question was whether such a co-owner can be disturbed from his possession and what is the remedy open for others. It has been held that he cannot be dispossessed and that the only remedy is by way of suit for partition. In my view the ratio therein is also not applicable to the facts of this case. One more decision cited by Sri Ramachandra Reddy is cited supra (4). In that case a person purchased a share in the tenancy rights and he sought for a declaration of title to and exclusive possession of the specified plot of land forming part of tenancy. It has been held that he is not entitled for such relief. I fail to understand as to how the ratio in this case can be applied to the case on hand.

On an earnest consideration of the case law referred to above, I am convinced that the Judgment of the Division Bench of this Court supra (1) is applicable on all its fours to the facts of this case and I accordingly hold that a co-sharer is entitled to maintain an eviction petition against the tenant by impleading the other co-sharer. I, therefore, do not agree with the findings of the learned Chief Judge, City Small Causes Court in the impugned Judgment. Therefore, the Revision Petition is fit to be allowed.

In the result, the Revision Petition is allowed with costs and the judgment of the Chief Judge, City Small Causes Court, Hyderabad, in R.A.No. 140/1987, dated 4-10-1990 is set aside and the judgment of the Additional Rent Controller in R.C.C.No.233/1963, dated 10-3-1987 is restored. The tenant is granted three (03) months time for vacating the premises, failing which, the landlord will be entitled to evict him in accordance with the law.