Kanhaiyalal v. Shri Ram Singh — 1990 DIGILAW 304 (MP)

ORDER R.K. Varma, J. -- 1. This is an appeal by the plaintiff-landlord against the judgment and order of remand dated 11.10.1984 passed in Civil Appeal No. 29-A/83 by the IInd Additional Judge to the Court of the District Judge, Ratlam, whereby the learned Lower Appellate Court has set aside the judgment dated 6.8.1983 and decree dated 9.8.1983 passed by the 1st Civil Judge, Class II, Ratlam in C.S. No. 41-A/81, and remanded the case to the trial Court with a direction to bring all the legal representatives of the original tenant-deceased Gopalsingh on record and thereafter dispose of the suit in accordance with law. 2. The facts giving rise to his appeal, briefly stated, are as follows: "The appellant-plaintiff has brought the instant suit for eviction and arrears of rent on the grounds that he bona fide required the suit-accommodation for his residence, that the respondent-tenant-defendant did not pay arrears of rent for four months from 1.10.80 to 31.1.81 inspite of service of notice on him, that the suit-accommodation is required bona fide by the landlord for carrying out repairs and also for purpose of reconstruction and that the repairs and reconstruction cannot be carried out without the accommodation being vacated. A further ground for eviction alleged in the plaint has been that the defendant-tenant has acquired vacant possession of the accommodation suitable for his residence. In short, the plaintiff pleaded the grounds for eviction of the tenant as per clauses (a), (e), (g), (h) and (i) of section 12(1) of the M.P. Accommodation Control Act (hereinafter referred to as 'the Act'). The defendant-tenant resisted the suit and in his written-statement filed on 6.1.1981, he denied the allegations made in the plaint. The defendant, however, amended his written-statement on 2.4.1983 by adding the allegation at the end of para 1 of the written-statement that the deceased Gopalsingh, father of the defendant Ramsingh was the tenant in the suit-accommodation since 18.8.63 and that after his death, all the legal representatives of deceased Gopalsingh are tenants in the suit accommodation. 3. After trial, the learned trial Court found that the plaintiff had established that the defendant had acquired a quarter and a residential house suitable for his residence and as such, he is liable to be evicted on the ground of section 12(1)(i) of the Act. 4. 3. After trial, the learned trial Court found that the plaintiff had established that the defendant had acquired a quarter and a residential house suitable for his residence and as such, he is liable to be evicted on the ground of section 12(1)(i) of the Act. 4. Being aggrieved by the judgment and decree of eviction passed by the learned trial Court, the defendant-tenant filed an appeal before the IInd Additional Judge to the Court of the District Judge, Ratlam. The learned appellate Court has decided the appeal only on the point of joinder of necessary parties to the suit without deciding the appeal on other points relating to merits. 5. The learned Lower Appellate Court has held that the original landlord Devilal had let the suit accommodation to the tenant deceased Gopalsingh about 22-23 years ago. Gopalsingh died about 15 years ago and since his death the legal heirs of the deceased -Gopalsingh viz., the defendant Ramsingh, his mother Surajkunwar, his brothers Devisingh, Gulabsingh and Premsingh are residing as tenants in the suit accommodation. 6. The plaintiff Kanhaiyalal purchased the suit-house from the original owner landlord Devilal and the defendant Ramsingh has been paying rent of the suit accommodation to Kanhaiyalal. The learned Lower Appellate Court has further found that even if some of the legal heirs of the deceased Gopalsingh may not be occupying the suit accommodation they would be treated as tenants in possession, if other legal heirs of deceased Gopalsingh are occupying the same. The learned Lower Appellate Court has placed reliance on a decision of the Supreme Court in Damadilal and others v. Parashram and others [1976 JLJ 655(SC)] for the proposition that heritability is an incident of the tenancy. Another in Tarachand v. Ram Prasad [1990(1) RCJ 673] has also been cited. 7. The learned Lower Appellate Court has placed reliance on a decision of the Supreme Court in Damadilal and others v. Parashram and others [1976 JLJ 655(SC)] for the proposition that heritability is an incident of the tenancy. Another in Tarachand v. Ram Prasad [1990(1) RCJ 673] has also been cited. 7. The learned Lower Appellate Court has, therefore, held that all the legal representatives of deceased Gopalsingh were necessary parties to the instant suit for eviction and as such the judgment and decree passed by the learned trial Court without joining all the legal representatives of deceased Gopalsingh are ineffective and invalid and accordingly, set aside the judgment and decree of the learned trial Court and remanded the case with the direction that the plaintiff shall bring on record all the legal representatives of the deceased Gopalsingh in the trial Court and thereafter the trial Court shall after hearing of the case afresh decide it in accordance with law. 8. Being aggrieved by the aforesaid judgment and decree, setting aside the trial Court's judgment and decree of eviction and directing remand of the case as aforesaid, the plaintiff-landlord has filed this appeal. 9. The learned counsel for the appellant-landlord has submitted that the respondent Ramsingh had been acknowledged as the tenant of the suit accommodation by the appellant Kanhaiyalal and Ramsingh started paying rent to Kanhaiyalal with effect from 1st February, 1979 after the latter had purchased the suit house from the original landlord owner Devilal Ex.P.4 and P.5, are the notices of attornment dated 15.2.1979 given respectively by Kanhaiyalal and Devilal to the tenant Ramsingh informing him that the house in suit has been transferred by registered sale-deed by Devilal in favour of Kanhaiyalal and that Ramsingh had become the tenant of Kanhaiyalal and the rent was, therefore, payable by Ramsingh to Kanhaiyalal with effect from 1.2.1979. In the notice Ex.P.5 Devilal specifically directed the tenant Ramsingh to pay rent to the plaintiff Kanhiaylal with effect from 1.2.1979. It appears that Ramsingh started paying rent to Kanhiyalal thereafter, without disputing the position that Ramsingh alone was the tenant in respect of the suit premises. 10. In the notice Ex.P.5 Devilal specifically directed the tenant Ramsingh to pay rent to the plaintiff Kanhiaylal with effect from 1.2.1979. It appears that Ramsingh started paying rent to Kanhiyalal thereafter, without disputing the position that Ramsingh alone was the tenant in respect of the suit premises. 10. It has also been submitted by the learned counsel for the appellant-landlord that the tenant Ramsingh was the person dealing with the landlord in respect of the tenanted accommodation and that he was accepted as the tenant by Kanhiayalal and as such Ramsingh must be supposed to represent the interest of such other heirs of deceased Gopalsingh who were in possession of the accommodation jointly with Ramsingh. Learned counsel has further submitted that Ramsingh had been paying rent in respect of the suit accommodation since after the death of Gopalsingh and there is no indication that any other legal representative of Gopalsingh claimed interest in the tenancy in suit. 11. But even if other legal representatives were jointly in possession of the suit accommodation with defendants Ramsingh, as alleged by him, it has been contended that. the tenancy stood determined by notice Ex.P.1, dated 8.1.1989 given to Ramsingh and the suit for ejectment against Ramsingh alone cannot be held to be bad or not maintainable and the judgment and decree passed in such suit are not invalid or ineffective as has been held by the learned Lower Appellate Court. The learned counsel in support of his submission placed reliance on a decision of the Supreme Court in Kanji Manji v. The Trustees of the Port of Bombay ( AIR 1963 SC 468 ), wherein it has been observed that once it is held that the tenancy was joint, a notice to one of the joint tenants was sufficient and the suit for the same reason was also good. The suit in that case was filed against both the joint tenants Rupji Teraji and Kanji Manji, but later, the plaint was amended by striking out the name of Rupji Teraji, who had died even before the suit was filed and the legal representatives of Rupji Teraji were not joined as parties to the suit. 12. The suit in that case was filed against both the joint tenants Rupji Teraji and Kanji Manji, but later, the plaint was amended by striking out the name of Rupji Teraji, who had died even before the suit was filed and the legal representatives of Rupji Teraji were not joined as parties to the suit. 12. In reply learned counsel for the respondent has submitted that Ramsingh and other legal representatives of the deceased tenant Gopalsingh cannot be treated as joint tenants since under section 19 of the Hindu Succession Act, 1956, if two or more heirs succeed together to the property of an intestate, they shall take the property as tenants-in-common and not as joint tenants. 13. Learned counsel has also cited a decision of Delhi High Court in Indra Sharma v. Gopal Dass [ 1984(2) RCJ 504 ] in which section 19 of the Hindu Succession Act has been applied to hold that an ejectment application is not maintainable against one of the heirs of, the deceased tenant. 14. There is, however, a contrary view to be found in a decision of Bombay High Court in the case of Mst. Ramubai v. Jivaram Sharma (AIR 1964 Bombay 96) to the effect that in a case between landlord and tenant, the heritable interest of the tenant is held by the heirs as joint tenants vis-a-vis the landlord. The relevant observations in the case of Mst. Ramubai (supra) are as under: "In my judgment, the phrase "tenants-in-common" or "joint tenants" used in section 190 the Hindu Succession Act or in other texts, when considering the rights of owners of property inter se cannot be confused with the right to hold land as joint tenant in the sense as joint lessees or co-lessees or co-tenants of property such as the subject-matter of the suit. The word "tenant" in section 19 is not used in the sense of lessees. That word is used in the sense of owners of property or holding in defined shares. It is an incident of ownership that has been referred to in section 19 and that incident in the case of persons holding as tenants-in-common is that the devolution in the case of each of these tenants-in-common would be according to the personal law while in the case of persons holding as joint tenants it will be by survivorship. It is an incident of ownership that has been referred to in section 19 and that incident in the case of persons holding as tenants-in-common is that the devolution in the case of each of these tenants-in-common would be according to the personal law while in the case of persons holding as joint tenants it will be by survivorship. The expression is not germane in deciding whether the leasehold is held as joint tenants. That expression may have led to some confusion and it is preferable to refer to rights of more than one person holding under the leasehold vis-a-vis the landlord as co-tenants or co-lessees. If understood in that sense, there will be no difficulty in holding that all the co-lessees or co-tenants hold as joint tenants in the sense that they have a single tenancy relationship with the landlord and they are not different tenants vis-a-vis the landlord." 15. I find myself in respectful agreement with the view taken by the Bombay High Court and the reasoning therefor as stated in the observations reproduced hereinabove. In view of the decisiin of the Supreme Court in the case of Kanji Manji (supra) and the decision of the High Court of Bombay in the case of Mst. Ramubai (supra), I hold that the suit filed by the plaintiff-landlord Kanhaiyalal against the tenant Ramsingh is good and maintainable in which the decree passed by the learned trial Court must be held to be valid and effective which will be binding on the other heirs of the deceased Gopalsingh, original tenant who had died long years before filing of the instant suit for eviction. The judgment and decree of the learned Lower Appellate Court directing remand of the case for joining other heirs of deceased Gopalsingh as co-tenants cannot, therefore, be sustained in law and are liable to be set-aside. 16. In the result, this appeal succeeds and is hereby allowed. The judgment and decree of the learned Lower Appellate Court are set-aside and the case is remitted to the learned Lower Appellate Court for deciding the appeal on merits in accordance with law. In the circumstances of the case, there shall, however, be no order as to costs of this appeal.