Sharif v. 2nd Addl. District Judge — 1980 DIGILAW 722 (ALL)

ORDER A.N. Varma, J. -This is a tenants petition. It is directed against a decree passed by the learned IInd Additional District Judge, Allahabad allowing a revision filed by the plaintiff respondents Nos. 2 to 5 under S. 25 of the Provincial Small Cause Courts Act and decreeing their suit for ejectment of the petitioners as well as for recovery of arrears of rent and damages. 2. Shortly stated the plaint case was that one Abdul Shakoor (husband of Smt. Ummatunnissa-defendant No. 1, who died during the pendency of the revision in the Courts below and father of the petitioners) was the tenant of the premises in dispute which the plaintiff had purchased under a sale deed dated 7-3-1972 from its previous owner namely Smt. Bilquis Begam. The agreed rent was Rs. 35/-which was raised to Rs. 43.75 p. under S. 5 of U. P. Act No. 13 of 1972. The tenant fell in arrears of rent from September, 1971 up to the date of the purchase of the property by the plaintiff. The arrears of rent up to the date of the said purchase were also transferred to the plaintiffs through the sale deed. The defendants failed to pay arrears of rent and hence a composite notice dated 30th May, 1975 demanding the arrears and terminating the tenancy under S. 106 of the Transfer of Property Act was served on the various defendants. The defendants, however, neither paid the arrears of rent nor vacated the premises and hence the suit for ejectment of the petitioners as well as for recovery of arrears of rent amounting Rs. 1,201.66 for the period 1-3-1972 to 11-7-1974 and a sum of Rs. 202.70 p. as damages for use and occupation for the period 12-7-1974 to 30th Nov., 1974. A relief for pendente and future damages at the rate of Rs. 43.75 p. was also claimed. 3. The defendants contested the suit on the ground that the premises in dispute were let out to both Abdul Shakoor and his brother Nazeer Ahmad on a monthly rental of Rs. 30/- by Ahmad Khan and Rahmat Khan, the previous owners of the premises in dispute from whom Smt. Bilquis Begam had purchased the property by means of the sale deed dated 7-11-1956. 30/- by Ahmad Khan and Rahmat Khan, the previous owners of the premises in dispute from whom Smt. Bilquis Begam had purchased the property by means of the sale deed dated 7-11-1956. Thus, both Abdul Shakoor and Nazeer Ahmad were the co-tenants of the premises, inasmuch as, neither any notice of demand nor of termination of tenancy under S. 106 of the Transfer of Property Act having been served on the surviving co-tenant namely, Nazeer Ahmad and further Nazeer Ahmad not having been impleaded in the suit, the suit was incompetent in law. As regards the rate of rent, it was asserted that the agreed rent was Rs. 30/- and mot Rs. 35/-. In regard to the plea of enhancement of rent under S. 5 of U. P. Act No. 13 of 1972 the defence was that no notice was served on the defendants under the provisions and that in any case, inasmuch as, by means of the said notice, the plaintiffs demanded Rs. 43.75 p. which was not the statutory amount to which the rent could be enhanced the same was invalid. The enhancement of rent was, therefore, of no legal effect. 4. It is pertinent to mention that the defendants also deposited the entire arrears of rent due at the rate of .Rs. 30/- as well as other amounts required to be deposited under S. 20 (4) of U. P. Act No. 13 of 1972 admittedly prior to the date of the issue in suit, of course calculated at the rate of Rs. 30/- per month for the period up to 14th of July, 1972 and for the subsequent period at the rate of Rs. 37.50 p. On the strength of the deposits it was claimed that the suit for ejectment was liable to be dismissed. 5. On the pleadings of the parties, various issues were framed by the trial Court. Issue No. 1 was whether Nazeer Ahmad is cotenant ? The trial Court upon a consideration of the evidence on the record accepted the evidence of the defendants to the effect that the property had been let out by Ahmad Khan and Rahmat Khan to both Abdul Shakoor and Nazeer Ahmad and that these two persons were co-tenants. The suit was, therefore, incompetent in law as admittedly, no notice either of demand or of the determination of tenancy had been served on Nazeer Ahmad. The suit was, therefore, incompetent in law as admittedly, no notice either of demand or of the determination of tenancy had been served on Nazeer Ahmad. In regard to the purported enhancement of the rent, the trial Court held that the notice alleged to have been sent by the plaintiffs under S. 5 of U. P. Act No. 13 of 1972 was invalid. As regards the deposit under S. 20 (4), the trial Court held that it was in accordance with law. On these findings, the trial Court dismissed the plaintiff-respondents suit for ejectment but decreed it for recovery of arrears of rent. 6. Aggrieved by the decision of the trial Court, the plaintiffs filed a revision which has been allowed by the learned District Judge. The learned District Judge disagreed with the trial Court and held that only Abdul Shakoor was the tenant. As regards the deposit under S. 20 (4) the learned District Judge held that though the notice of enhancement sent by the plaintiffs under S. 5 of the U. P. Act No. 13 of 1972 was not valid, yet, inasmuch, as, the defendants themselves had deposited rent under S. 20 (4) at the rate of Rs. 37-50 p. for the period beginning from 15-7-1972, they would be deemed to have agreed to the enhancement of the rent from Rs. 30/- to Rs. 37.50 p. with effect from 15th of July, 1972. In regard to the question of co-tenancy, the learned District Judge also gave a finding in the alternative that even if both Abdul Shakcor and Nazeer Ahmad had taken the premises on rent, they would be deemed to be the joint tenants and consequently, a notice served on the heirs of Abdul Shakoor would ensure against Nazeer Ahmad also. With these findings. the learned District Judge allowed the revision and decreed the suit of the plaintiff-respondents for ejectment also. 7. Counsel for the petitioner first submitted that the finding of the trial Court that the premises in question had been let out to Abdul Shakoor and Nazeer Ahmad and that Nazeer Ahmad was a co-tenant with Abdul Shakoor, was a finding of fact, which the District Judge had no jurisdiction to set aside in a revision on a mere reappraisal of the evidence. 8. 8. Whether the premises in dispute had been let out to Abdul Shakoor alone or to Abdul Shakoor and Nazeer Ahmad both is undeniably purely an issue of fact, a finding which could not be disturbed by the learned District Judge except on the ground that it was contrary to law. I, however, find that the learned District Judge has set aside the finding on a mere reappraisal of the evidence on the record which is dearly not permissible having regard to the ambit of S. 25 of the Provincial Small Cause Courts Act. Though the learned District Judge has set aside the finding of the trial Court principally and mainly on reappraisal of evidence, he has at one point observed that the evidence of the defendant that the accommodation in dispute was let out to Abdul Shakoor and Nazeer Ahmad was not consistent with the pleas taken by the defendants. The learned District Judge has observed that in para 14 of the written statement, the defendants have pleaded that Nazeer Ahmad had been residing in the house along with his brother Abdul Shakoor and he also became tenant of the premises by paying rent jointly by efflux of time and also by admission and acquiescence of the previous landlords. These averments, according to the learned District Judge, were inconsistent with the evidence of the defendants to the effect that the premises in dispute had been let out both to Abdul Shakoor and Nazeer Ahmad. Even assuming that the learned District Judge could interfere with the finding of the trial Court on . the above ground in a revision. I am clearly of the view that the evidence of the defendants was not at variance with their pleadings. The said pleadings of the defendants were not inconsistent with their case that both Abdul Shakoor and Nazeer Ahmad had taken the premises on lease. What was sought to be asserted by para 14 of the written statement was that Abdul Shakoor and Nazeer Ahmad had been recognised as tenants by succeeding landlords, over a long period and that therefore, it is not permissible for the plaintiffs to assert that Nazeer Ahmad was not a co-tenant. What was sought to be asserted by para 14 of the written statement was that Abdul Shakoor and Nazeer Ahmad had been recognised as tenants by succeeding landlords, over a long period and that therefore, it is not permissible for the plaintiffs to assert that Nazeer Ahmad was not a co-tenant. At any rate, no objection appears to have been raised on behalf of the plaintiffs when the defendants gave the evidence that the premises in dispute had been let out to Abdul Shakoor and Nazeer Ahmad both. The learned District Judge was, therefore, not justified in interfering with the finding of fact recorded by the trial Court on this issue. The learned District Judge has, however, given a finding in the alternative. He has observed that .even if both Abdul Shakoor and Nazeer Ahmad are held to have taken the premises on lease together, they would be deemed to be joint tenants. He has observed thus:- "There could be no dispute that Abdul Shakoor and Nazeer Ahmad were joint tenants of the premises." 9. The issue was whether Abdul Shakoor and Nazeer Ahmad were co-tenants and the finding of the trial Court was also that Abdul Shakoor and Nazeer Ahmad were co-tenants. It was nobodys case that Abdul Shakoor and Nazeer Ahmad were joint tenants. The aforesaid observations of the learned District Judge are obviously based on a misconception of law. The learned District Judge seems to think that since Abdul Shakoor and Nazeer Ahmad took the property on lease together they must be deemed to have been joint tenants. On account of this misconception of law, the learned District Judge thought that the matter was concluded by the decision of Supreme Court in the case of Kanji Manji v. Trustees of the Port of Bombay reported in AIR 1963 SC 468 . 10. Having held that Abdul Shakoor and Nazeer Ahmad were joint tenants, the learned District Judge concluded that a notice of termination of tenancy served on the heirs of Abdul Shakoor was sufficient to determine the tenancy of Nazeer Ahmad as well. The learned District Judge has clearly gone wrong there also. 11. In Budh Sen v. Sheel Chandra reported in AIR 1978 All 88 , a Division Bench of this Court had occasion to consider the distinction between "joint tenants" and "tenants in common". The learned District Judge has clearly gone wrong there also. 11. In Budh Sen v. Sheel Chandra reported in AIR 1978 All 88 , a Division Bench of this Court had occasion to consider the distinction between "joint tenants" and "tenants in common". The Division Bench referred to a passage appearing in Mullas Transfer of Property Act, VI Edn. (at p. 222) with approval. The passage runs thus:- "A joint tenancy connotes unity of title, possession, interest and commencement of title, in a tenancy in common, there may be unity of possession and commencement of title, but the other two features would be absent." 12. Applying the aforesaid test, it is evident that Abdul Shakoor and Nazeer Ahmad were co-tenants and not joint tenants as there was no unity of title or interest between them, though there was unity of possession and commencement of title. The Rule of English Law that a transfer to plurality of persons is presumed to create a joint tenancy with a right of survivor-ship unless there are words to the contrary has not been applied in India. (See p. 222 Mullas Transfer of Property Act Sixth Edn.). 13. In any case, as mentioned above, it was nobodys case that Nazeer Ahmad and Abdul Shakoor were joint tenants. Indeed, counsel for the petitioner rightly urged that if the argument of learned counsel for the respondents that Abdul Shakoor and Nazeer Ahmad were joint tenants was accepted, the result would be that upon the death of Abdul Shakoor, Nazeer Ahmad would be deemed to have become the sole tenant as the surviving joint tenant. In either view of the matter, therefore, notice on Nazeer Ahmad was indispensable in law. Counsel for the respondents placed strong reliance on the decision of the Supreme Court in Kanji Manjis case ( AIR 1963 SC 468 ) (supra) and contended that even if we assume that the premises were given on lease to both Abdul Shakoor and Nazeer Ahmad, they would be deemed to have been joint tenants on the authority of that decision. 14. I do not agree. In Kanji Manjis case the tenants had taken the premises under a deed of assignment dated 28th Feb., 1947 expressly as joint tenants (see para 7 of the report). 14. I do not agree. In Kanji Manjis case the tenants had taken the premises under a deed of assignment dated 28th Feb., 1947 expressly as joint tenants (see para 7 of the report). It was on account of the express words used in the deed of assignment that the Supreme Court held that the two tenants were joint tenants. 15. The result of the aforesaid discussion, therefore is that Abdul Shakoor and Nazeer Ahmad were the co-tenants and not joint tenants. In the case of Budh Sen v. Sheel Chandra Agarwal ( AIR 1978 All 88 ) (supra) a Division Bench of this Court has laid down that in regard to the tenants-in-common, notice has to be served on both of I them and that a notice served on one of the tenants-in-common cannot legally terminate the tenancy of the other co-tenant. The view of the trial Courts is in accord with this decision. The decision of the learned District Judge to the contrary is manifestly un-sustainable in law. The suit of the plaintiff- respondents for ejectment is, therefore, liable to fail on this ground alone. 16. There is, however, another ground on which the suit of the plaintiff-respondents for the ejectment of the petitioners is liable to fail. Both the trial Court as well as the learned District Judge have held that the notice of the plaintiffs under S. 5 of U. P. Act No. 13 of 1972 purporting to enhance the rate of rent to Rs. 43.75p. per month was invalid in law. The learned District Judge has, however, held that the fact that the defendants deposited the rent under S. 20 (4) at the rate of Rupees 37.50 p. for the period subsequent to 14th of July, 1972 will have the effect of his having agreed to the enhancement of the rent from Rs. 30/- to Rs. 37.50 p. from 15-7-1972. It is on account of this finding, that the learned District Judge has held that the defendants did not fully comply with the provisions of S. 20 (4). 17. The view of the learned District Judge, is obviously incorrect. From the mere fact that the petitioners deposited arrears of rent in this Court under S. 20 (4) of U. P. Act No. 13 of 1972 at the enhanced rate of Rs. 17. The view of the learned District Judge, is obviously incorrect. From the mere fact that the petitioners deposited arrears of rent in this Court under S. 20 (4) of U. P. Act No. 13 of 1972 at the enhanced rate of Rs. 37.50 p. for the period beginning from 15-7-1972 it could not be inferred, by any stretch that the defendants had agreed to the enhancement of the rent from Rs. 30/- to Rs. 37.50 p. There was absolutely no element of volition on the part of the defendants to the enhancement of the rent from Rs. 30 to Rupee 37.50. The defendants had made the deposit under S. 20 (4) at the rate of Rs. 37.50 p. only to save their tenancy They cannot by this action be possibly held to have agreed to the enhancement of the rent. The learned District 'Judge has committed a patent error of law in spelling out a new case at the revisional stage, to the effect that the defendants had agreed to the enhancement of rent from 15-7-1972. The finding of the learned District Judge, therefore, on the issue of compliance of S. 20 (4) by the defendants is manifestly unsustainable in law. The trial Court ;had rightly held that the defendants had complied with S. 20 (4) of the Act. 18. In view of what has been stated above, this petition succeeds and is allowed. The judgment and decree passed by the learned IInd Additional District Judge, Allahabad, dated 31-5-1979 are quashed and those passed by the trial Court are restored. The parties will bear their own costs of this petition.