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1981 DIGILAW 102 (PAT)

Sharda Prasad Sinha v. Sri Rajeshwari Sinha

1981-05-14

S.S.SINHA

body1981
JUDGMENT Choudhary Sia Saran Sinha, J. The defendant is the appellant in this second appeal which is directed against a judgment of affirmance. 2. The two respondents related as full brothers instituted a suit for eviction against the defendant appellant in respect of a house bearing holding no. 129 of Circle No. 25 in Ward No. 9 of the Patna Municipal Corporation. One of the grounds for eviction was default in payment of rent for the period from March, 1966 to June, 1966 at the rate of Rs.140/- per month. One of the pleas taken by the defendant was that the suit was bad for defect of parties inasmuch as two sons of Tapeshwari Parsad Sinha, another full brother of the two plaintiffs, had not joined hands with them in instituting the suit. 3. The trial court held that the suit was not bad non joinder of parties. It decreed the plaintiff’s suit and the matter went to appeal and the lower appellate court too negtived the plea regarding the suit being bad for non joinder of parties and the appeal was dismissed. It is in these circumstances that the defendant has taken the matter to this court in second appeal. 4. Two substantial questions of law, mentioned in order no.8 dated 4.2.1980, were formulated by a learned Single Judge of this court while admitting this second appeal. Out of them the only substantial question of law pressed by Shri Balbhadra Prasad Singh learned counsel for the appellant, was that the suit was not maintainable as the two plaintiffs were merely co-owners of the demised premises and as such were not entitled in law to get a decree in the instant suit without impleading the other tow sons of Tapeshwari Pd. Sinha, above mentioned. Shri R.S. Chatterjee, learned counsel for the respondents, refuted this sole contention of Shri Balbhadra Prasad Singh. 5. Certain facts are undisputed and they are these. The demised premises was the ancestral property of the two plaintiffs and his brother Tapeshwari Prasad Sinha, all sons of late K.B. Sahay. Plaintiff no.1, Rajeshwari Sinha, had, however, let out the premises in question to the defendant on a monthly rental which has been found by the two court below at Rs. 140/- per month. The two courts below have concurrently found that the defendant defaulted in payment of rent making himself liable for eviction. Plaintiff no.1, Rajeshwari Sinha, had, however, let out the premises in question to the defendant on a monthly rental which has been found by the two court below at Rs. 140/- per month. The two courts below have concurrently found that the defendant defaulted in payment of rent making himself liable for eviction. Question is whether in such a situation the plaintiffs should be non suited merely because the two sons of the third brother did not join hands with them in instituting the eviction suit and the plaintiffs did not care to array them as proforma defendants. 6. Three decisions were cited by Shri Balbhadra Prasad Singh in support of his contention that the suit filed by one of the co-owners under the general law is not sustainable in law unless the defendant is found to be trespasser or the co-owner takes the precaution of impleading the other co-owners as defendants. The decisions are reported to Rama Matibhair vs. Dalwadi Tupoo Rama and others, Ram Baksh Vs. Chanda and Others & Gopal Ram Mohuri vs. Dhakeshwar Prasad Narain Singh. The principle of law inunciated in these decisions was not disputed by Shri R.S. Chatterjee. His submission however, was that these decisions related to the general law, namely, the Transfer of property Act, and the Indian Contract Act, and not to Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 which governs the case of the parties in the instant case. In support of his submission Shri R.S. Chatterjee relied on two decisions of the Supreme Court, one reported in Sri Ram Pasricha vs. Jagannath and ors. And the other reported in Smt. Kanta Goel vs. B.P. Pathak & ors. 7. Preamble to the Bihar Buildings (L.R. & E.) Control Act. 1947 shows that the Act, was framed with a specific purpose, namely, to regulate the letting of buildings, to control the rent of such buildings and to prevent unreasonable eviction of tenants therefrom in the Province of Bihar. The paucity of houses to be let on rent are well known and the consequence thereof leading to the greed of the landlord to charge as much rent as possible is also well known. This is one side of the picture. On the other side, we are also aware of the urgent need of a person to get accomodation in rented premise. This is one side of the picture. On the other side, we are also aware of the urgent need of a person to get accomodation in rented premise. The Bihar Buildings (L. R. & E.) Control Act, was enacted in this background. The definition of the term “landlord” as given in section 2 (d) of the above Act, has also to be significantly noted. The definition is not in terms in which the term “landlord” is understood. It is, if I may say so, sweeping in nature unlike the definition of the term “lessor” as used in Section 105 of the Transfer of Property Act. Accordingly to Section 105, a lease of immoveable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such term. The term “landlord” has been defined in the Bihar Buildings (L. R. & E.) Control Act, as follows: “2 (d) “landlord” includes the person who for the time being is receiving, or is entitled to receive, the rent of a building whether on his own account or on behalf of another, or on account or on behalf or for the benefit of himself and others or as an agent, trustee, executor, administrator, receiver or guardian or who would so receive the rent or be entitled to receive the rent, if the buildings were let to a tenant.” It would appear form the above definition that the “landlord” includes the person who for the time being is receiving, or is entitled to receive, the rent of a building whether on his own account or on behalf of another, or on account or on behalf of for benefit of himself and others or as an agent, trustee, executor, administrator, receiver or guardian or who would so receive the rent or be entitled to receive the rent, if the building were let to a tenant. In view of the broad definition of the term “landlord”, rigid adherence to the requirement of a suit filed for eviction under the general law is not called for or necessitated. 8. In view of the broad definition of the term “landlord”, rigid adherence to the requirement of a suit filed for eviction under the general law is not called for or necessitated. 8. Undisputed facts are that the premises in question was let out by plaintiff no.1, Rajeshwari Sinha. The defendant acknowledged him as the landlord of the premises though he was only a co-owner. The defendant paid him the rent and plaintiff no. 1, Rajeshwari Sinha, granted him the receipts. This is the position which emerges from concurrent findings of fact recorded by the two courts below. In such a situation Section 116 of the evidence Act, may also stand as a bar to any such plea, as urged on behalf of the appellant, being raised by a defendant. 9. In case of Sri Ram Pasricha vs. Jaggannath & ors (supra), their Lordships of the Supreme Court held that a co-owner is as much an owner of the entire property as any sole owner of a property is. He owns every part of the composite property alone with other 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. The case under consideration before their Lordships of the Supreme Court also related to Rent control and eviction under section 13 of the West Bengal Premises Tenancy Act, 1936. Their Lordships held that it was 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(f) of the Act. In the case of Smt. Kanta Goel v. B.P. Pathak & others, their Lordships of the Supreme Court, while referring to its earlier decision in Sri Ram Parsricha vs. Jagannath and others, observed as follows : “The law having been thus put beyond doubt, the contention that the absence of the other co-owners on record disentitled the first respondent from suing for eviction fails.” 10. In the facts and circumstances of this case, the sole submission raised by Shri Balbhadra Prasad Singh must fail and is rejected and, as concurrently found by the two courts below, the plaintiffs are held entitled to maintain the instant suit. Generally while ordering eviction a reasonable time is allowed to the defendant tenant to arrange for some accommodation. In the facts and circumstances of this case, the sole submission raised by Shri Balbhadra Prasad Singh must fail and is rejected and, as concurrently found by the two courts below, the plaintiffs are held entitled to maintain the instant suit. Generally while ordering eviction a reasonable time is allowed to the defendant tenant to arrange for some accommodation. I think a period of six months from the date of this judgment shall be a reasonable period within which the defendant must make over vacant possession of the demised premises to the plaintiffs, falling which the plaintiffs shall be entitled to recover possession in accordance with law. 11. With the observations made above, the appeal fail and is dismissed. In the facts and circumstances of this case, there shall be no order as to costs of this second appeal and the parties shall bear their own costs. Appeal dismissed.