Yamuna Prasad Singh v. Birendra Kumar Singh @ Ram Singar Singh — 1993 DIGILAW 226 (PAT)

JUDGMENT : S. K. Chattopadhyaya. J. - Defendants No. 1 to 6 of Title Suit No. 414 of 1987 are the appellants in First Appeal No.155 of 1990. Plaintiffs No.1 to 4 are Respondents 1st set whereas Respondents 2nd set and 3rd set are defendants No.7 and 10 and Defendants No.8 and 9 respectively, who have been described as Respondents No.5 to 8 in this appeal. 2. Plaintiffs in Title Suit No. 414 of 19S7 prayed for a decree for partition in respect of plaintiffs' share to the extent of 4 (four) Annas of the properties described in Schedule I of the plaint with some other consequential reliefs. This suit was decreed by the trial court by reason of its judgment and decree dated 24-2-1990, directing that the preliminary decree be prepared in respect of the suit property. 3. Similarly, the principal defendant of Title Suit No.59 of 1984 are the appellants in F.A.No.190 of 1992 whereas plaintiff Nos. 1 and 2 and proforma defendant 2nd set are the respondents in this appeal. The Title Eviction Suit No. 51) of 1984 was filed by the plaintiffs for eviction of Defendants No.1 to 6 (appellants in this appeal) which was decreed by the trial court and defendants No.1 to 6 were direced to deliver vacant possession to the plaintiffs over the suit land, as mentioned in the Schedule of the plaint, within six months from the date of decree. 4. Both the suits namely, Title suit No. 404 of 1987 and Title Eviction Suit No.51) of 1984 were heard analogous by the trial court and decided by a common judgment. 5. The defendants No.1 to 6 in Title Suit No.414 of 1987 preferred First Appeal No. 155 of 1990 before this Court, on the other hand, defendants No. 1 to 1 (d) of Title Eviction Suit No. 59 of 1984 preferred an appeal before the learned District judge as the valuation of the appeal was within the jurisdiction of that Court. That appeal before the learned District judge was numbered as Title Eviction Appeal No. 33 of 1990. 6. It appears from the records of the case that by order dated 24-3-1992 passed in M.J.C. No. 818 of 1990, this Court directed that Title Appeal No.33 of 1990 be transferred to this Court for being heard with First Appeal No. 155 of 1990. 6. It appears from the records of the case that by order dated 24-3-1992 passed in M.J.C. No. 818 of 1990, this Court directed that Title Appeal No.33 of 1990 be transferred to this Court for being heard with First Appeal No. 155 of 1990. In pursuance of the aforesaid order, Title Appeal No. 33 of 1990 filed before the learned District Judge was withdrawn and transferred to this Court which was registered as First Appeal No. 190 of 1992. 7. As both the appeals were directed to be heard analogous, they were heard together and this judgment will govern both the appeals. 8. Title Partition Suit No. 414 of 1987 is a suit for declaration that the alleged deed of Will dated 8-4-81 and deed of gift dated 6-7-84/9-7-84 are forged, fabricated, illegal, invalid, null and void and not binding on the plaintiffs and for partition of four annas share of plaintiffs in the suit properties mentioned in the Schedule of the plaint. 9. The facts of the case have already been dealt with in extenso by the learned trial court and as such need not be reiterated except those which are necessary for appreciating the case of the panics. 10. It appears that the plaintiffs have sought for partition of the suit properties mentioned in Schedule I of the plaint mainly on the ground that those properties were never partitioned by metes and bounds. Further case is that Deo Raj Singh who alkso died unmarried in state of jointness leaving behind the plaintiffs and defendants as his legal heirs, had no right to execute the deed of will and the registered deed of gift with respect to his 1/3rd share in joint family properties. Further ease is that plaintiff no.1 and the defendants are' acquiring and dealing with the properties separately out of their separate earnings and savings, but the ancestral properties arc still joint. Having found some difficulty in managing the said property and finding that defendants 1 to 3 have become dish6nest, the plaintiffs requested the defendants to partition the suit properties by metes and bounds, but on their refusal, the suit has been filed. 11. Defendants No.8 and 9 supported the case of the plaintiffs by filing their joint written statement. It is stated therein that Deo Raj Singh was inimical to defendant Nos. 11. Defendants No.8 and 9 supported the case of the plaintiffs by filing their joint written statement. It is stated therein that Deo Raj Singh was inimical to defendant Nos. 1 and 2 and as such there was no question' of any such deed of will or gift being executed by Deo Raj Singh. 12. Defendants No.1 to 3, namely Jamuna Singh, Baidnath Singh and Umesh Chandra Singh filed their joint written statement, whereas Bishundeo Narain Singh (defendant no.7) has filed a separate written statement. Defendant no.10; namely, Sailesh Chandra has also filed his separate written statement accepting the statements made by Bishundeo Narain Singh. It is pertinent to mention that the allegations in all these written statements are more or less the same. In their written statements, the contesting defendants have categorically stated that the suit is not maintainable for partial partition, inasmuch as, the C.S. Plot Nos. 83 and 165, which were joint family properties, were not included in the suit. Defendant Nos.7 and 10 have taken the plea that as the name of the son of defendant no.7 has not yet been included in the geneology, the suit cannot proceed on the ground of non-joinder of parties. It is practically admitted on behalf of the defendants that though there was no partition by metes and bounds between the parties, but all the joint family properties were partitioned between the parties for the sake of convenience and, accordingly, the parties have been coming into possession over their respective lands and houses. Further common case of these defendants is that the plaintiffs do not have 1/4th share in the suit properties, as claimed, and they have no share in the 1/3rd share of Deo Raj Singh. 13. Title Eviction Suit No.59 of 1984 is a Suit for decree for eviction of the defendants 1 to 6 from the suit premises having an area of 6 Kathas of land over Plot No.270 under Khata No.130 situated at Lohanipur, P.S. Kadamkuan in the district of Palna and for recovery of rent of Rs. 2250/- and for recovery of damages for Rs. 2214/-froin, 1-7-84 till the date of institution of the suit and also pendente lile and future damages' @ Rs. 18/per day till the delivery of possession. 14. 2250/- and for recovery of damages for Rs. 2214/-froin, 1-7-84 till the date of institution of the suit and also pendente lile and future damages' @ Rs. 18/per day till the delivery of possession. 14. The case of the plaintiffs is that they and defendants No.7 to 12 are the exclusive owners of the suit premises described in Schedule of the plaint. The same was leased out to defendant no. I (since dead) by plaintiffs No.1 and 2 and defendants No.7 to 10 and Deo Lal Singh, Brahmadeo Singh and Deo Raj Singh for a period of 20 years on yearly rental of Rs. 1800/-. The land was leased out by means of a registered deed of lease dated 10-9-63, on the condition that the lessee would erect building and structure over the said land suitable for his business in any manner as and when he likes. Further condition was that rent was payable in the month of June 30th every year and in the month of December by 31st every year. It was also agreed between the parties that structures and building materials and other things shall be removed by the lessees within six months after the expiry of the term of lease and lessee shall be liable to pay the rent to the lessor for the said period of six months at the same rate, as stated above. In failure by the "lessee to remove the structure and building after the stipulated period, he shall be liable to pay damages at the penal rate of Rs. 18/- per day. It is 'further stated that the aforesaid period of lease was to expire on 10-9-83 and as the defendant no. 1 defaulted in payment of rent, and sublet a portion of the leasehold premises to defendants no.2 to 6 by violating the term of the lease, the plaintiffs and defendants no.7 to 10 and Deo Raj Singh sent a registered notice dated 29-6-83 under the provision of T. P. Act determining the lease from 31st December, 1983. Inspite of service of notice, defendant no. I neither vacated the suit land nor paid arrears of rent and damages, the present suit has been filed. 15. It is admitted by the plaintiffs in the plaint that as defendants no.7 to 12 have not joined hands with the plaintiffs so they have been impleaded as proforma defendants. 16. Inspite of service of notice, defendant no. I neither vacated the suit land nor paid arrears of rent and damages, the present suit has been filed. 15. It is admitted by the plaintiffs in the plaint that as defendants no.7 to 12 have not joined hands with the plaintiffs so they have been impleaded as proforma defendants. 16. Defendant no.1 filed written statement. He died during the pendency of the suit and his legal heirs were substituted and they adopted the written statement filed by defendant no.1. They have taken a plea that there was an oral partition of the joint family properties between the plaintiffs and defendants no.9 and 10 and the entire suit premises of this suit has been exclusively allotted to the share of defendants no.9 and 10. Defendants no.9 and 10 have been realising the rent from defendant no.1 and moreover they have entered into a fresh negotiation, and allowed this defendant to continue in the suit premises by agreeing to execute a fresh lease for a period of 10(ten) years. It is stated that the plaintiffs having no right, title and interest in the suit land, the suit for eviction at their instance is not maintainable. Defendants No.7 to 10 also echoed the averments made by the defendant no.1 by stating that being absolute owners of the suit land they are realising the monthly rent from defendant no.1 and as such the plaintiffs have no cause of action for filing the eviction suit. The minor defendants who have been defended by guardian-ad-litem filed their written statement in both the suits only with formal allegations. 17. As observed earlier, the trial court tried both the suits, i.e. Title Suit No. 414 of 1987 and Eviction Suit No.59 of 1984 analogous and by a common judgment disposed of both the suits. 18. In the partition suit the learned trial court, after discussing the evidence on record has come to a conclusion that the suit properties were not partitioned by metes and bounds between the parties and as such there exists unity of title and possession between the contesting parties. The trial court further held that Deo Raj Singh with his free will executed a deed of Will (Ext.C) and deed of gift (Ext. The trial court further held that Deo Raj Singh with his free will executed a deed of Will (Ext.C) and deed of gift (Ext. B), but held that as the will has not been probated, it does not confer any title to the parties claiming under the Will and the deed of gift is void as no co-parcener under the Mitakshara Law can dispose of his undivided interest In coparcaenary property by gift and such transaction is void altogether. The trial court further held that the suit is not hit by partial part it ion nor bad for non-joinder of parties. Similarly, the trial court in the Eviction Suit held that even one co-owner may file a suit for eviction arraying other co-owners as defendants, if they arc not ready to join him or they arc against him and as such the plaintiffs are still within their rights to eject the defendants from the suit premises after the expiry of the term of t he lease. The trial court further held that the plaintiffs are not entitled for the arrears of' rent as claimed but the plaintiffs and proforma defendants are entitled to the damages Rs. 18/-per day till the building/structure is removed from there. 19. Accordingly, the trial court decreed the suit I'm eviction and directed the defendants to vacate the premises and remove the structure within six months from the date of the order and decreed the suit for partition by directing to prepare the preliminary decree. 20. Learned counsel for the appellants in First Appeal No. 155 of 1990 has challenged the judgment and decree of the trial court on the ground that the trial court did not consider the materials on record regarding previous partition and manner of dealing with the property separately by the parties, inasmuch as, there are several documentary evidences to show that the parties are separated for a long period and the properties were partitioned according to their shares. Learned counsel for the appellants further contended that the deed of gift (Exl.B) and deed of Will (Exl.C) are valid documents in the eye of law and the trial court erred in law in declaring them as void and not binding on the plaintiffs. Learned counsel fur the appellants advancing his argument has further contended that the present suit is barred by Order 23, Rule 1 (iv) of the C.P.C. as earlier. Learned counsel fur the appellants advancing his argument has further contended that the present suit is barred by Order 23, Rule 1 (iv) of the C.P.C. as earlier. Title Suit No.76/76, Filed by the defendant no. 4 fur partition of the same properties was withdrawn. Learned counsel for the appellants also contended that the suit is bad for partial partition as all the properties were not included by the plaintiffs in the suit. 21. Learned counsel for the respondents, on the other hand, submitted that the suit is not bad for partial partition as the lands in Plot Nos.83 and 165 were the self acquired property of plaintiff no.1 in which the joint family has got nothing to do. It is further contended that entire materials on record and the documents filed by the defendants clearly show that there was no partition by metes and hounds of the joint family properties. Lastly, it was contended that the trial court has rightly held that the deed of gift and deed of Will are not binding on the plaintiffs as one of the coparceners cannot alienate any property by way of gift excluding others and also the trial court" rightly held that the suit is not barred under Order 23, Rule 1 of the CP.C. 22. On this backdrop, the question to be decided as to whether the properties in the partition suit are still coparcenary properties of the joint family or not. Admittedly, Gokul Singh had four sons, namely, Jangi Lal Singh, Deo Lal Singh, Brahmadeo Singh and Deo Raj Singh and they were members of the Joint Hindu Mitakahara Family. Admittedly, the parties to the Title Suit No.414 of 1987 (except defendant no. to) were members of the joint Hindu Mitakshara Family. It is also admitted fact that the suit properties mentioned in Schedule I of the plaint were the coparcenary properties of the joint family. 23. The case of the plaintiffs is that although the plaintiffs are separated in respect of their business and are acquiring and dealing with the properties separately out of their separate earnings and savings but the ancestral properties are still joint. 23. The case of the plaintiffs is that although the plaintiffs are separated in respect of their business and are acquiring and dealing with the properties separately out of their separate earnings and savings but the ancestral properties are still joint. On the other hand, the case of the defendants 1 to 3 is that there was partition at one time and the properties mentioned in Schedule of the plaint are not now joint and there is no unity of title and possession between them. It is also the case of the defendants 7 and 10 and defendants 1 to 3 to the effect that though the parties have their separate residence, mess and business for sake of their convenience, there was no partition by metes and bounds. 24. Defendant no.1, Jamuna Prasad Singh (D.W.1) has stated in examination- in-chief that there had been a private partition in respect of mess, residence and business of the family properties which" took place in the year 1976. Plaintiff No.1 (PW.4) has also admitted in his evidence that there had been separation in 1960 and the parties are even realising the rents from the joint family properties separately. PW.4, Birendra Kumar Singh, in his cross-examination has admitted that Amrendra Kumar Singh had filed a partition Suit No.76 of 1976 in which all the panics of this suit were parties and that suit was dismissed. P.W.6, Amrendra Kumar Singh further stated that he had filed Partition Suit No.76 of 1976 in which all the panics of this suit were parties and that suit was dismissed. P.W.6, Amrendra" Kumar Singh has also admitted in his evidence that he had filed Title Suit No. 76 of 1976 for partition of the joint family properties. But he has further stated that he withdrew that suit and as such it was dismissed. 25. Admittedly, there is no document to show that actually there was a partition in the coparcenary properties of the joint family by metes and bounds. Certain documents are produced by the defendants like Exl.D Series (Municipal Tax Receipts), Ext. E. Series (Rent Receipts), Ext. A series (Municipal Tax Receipts) to show that there had been a partition by metes and bounds. But these receipts neither create any title or interest nor any proof thereof that there was" a partition by metes and hounds. 26. Certain documents are produced by the defendants like Exl.D Series (Municipal Tax Receipts), Ext. E. Series (Rent Receipts), Ext. A series (Municipal Tax Receipts) to show that there had been a partition by metes and bounds. But these receipts neither create any title or interest nor any proof thereof that there was" a partition by metes and hounds. 26. Learned counsel for the Appellants did not point nut nm could show any specific averment in the written statement as to on what date and in which manner the partition of the coparcenary properties of the joint family took place. I have perused the entire written statement of the contesting defendants in the partition suit but nowhere found the date of partition of the joint family properties and the manner in which the partition took place according to their share. 27. On the other hand, there are some documents to show that the properties were joint till the institution of the suit. There is a clear statement in recital of deed of gift (Exl.B), where Deo Raj Singh admits that he had 1/3rd share in the joint family property. In Ext. 6/C, Deo Raj Singh had specifically stated that the family partition was not acted upon. Jamuna Singh, in mutation appeal (Ext.19) filed by Bishundeo Narain Singh, had specifically denied the partition in the year 1976. 28. "On consideration of all these materials and evidences discussed above, I have no hesitation to come to the conclusion that there was no pleading by the defendants regarding the previous Partition, the manner and the date and there is no document to show the partition by metes and bounds. I, accordingly, come to the conclusion that there is unity of title and possession between the parties in Title Suit No. 414 or 1987 in respect of the suit properly and there was no partition or the coparcenary properties by metes and bounds. 29. So far the question regarding validity of deed of gift (Ext.B) and the deed of Will (Ext.C), which were executed by Deo Raj Singh in favour of the concerned defendants in concerned, it is a settled law that until the Will is probated it does not confer any right, title and interest to the legatee under the Will. 29. So far the question regarding validity of deed of gift (Ext.B) and the deed of Will (Ext.C), which were executed by Deo Raj Singh in favour of the concerned defendants in concerned, it is a settled law that until the Will is probated it does not confer any right, title and interest to the legatee under the Will. Admittedly no probate in respect of the aforesaid deed of Will (Ext.C) has been obtained as yet and as such I am not inclined to discuss in detail about the validity or otherwise of the Will (Ext.C). Accordingly, I am of the opinion that the Will (Ext.C) is inoperative and defendants cannot claim any right, title and interest under the same. 30. So far the deed of gift is concerned, it is the case of the parties that the property which is under the Will is the same property under the deed of gift. It is also not disputed that one co-parcener cannot alienate his property by way of gift excluding the other co-owners and such alienation is void. In my opinion, the deed, of gift also docs not confer any right, title and interest to the defendants and the same is not binding on the plaintiffs. The deed of gift is thus held to be void. 31. Learned counsel for the appellants contended that as the Defendant No.8 (Amarendra Kumar Singh) filed a suit for partition of the same properties being Title Suit No. 76 of 1976, in which all the parties of the Partition Suit No.414 of 1987 were the parties, the present suit is barred by Order 23 Rule 1(iv) of the C.P.C. Provision of Order 23 Rule 1, C.P.C. contemplates that where the plaintiff abandons any suit or withdraws from the suit, then he shall be liable for such cost as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject matter or such part of the claim. Here, Defendant no.8 in the present suit filed the earlier Suit 76 of 1976 for partition and admittedly the present plaintiffs were not the plaintiffs in the earlier suit. Moreover, the suit for partition has a recurring cause of action and one co-parcener cannot debar all the co-parceners to file a suit by abandoning the same. Here, Defendant no.8 in the present suit filed the earlier Suit 76 of 1976 for partition and admittedly the present plaintiffs were not the plaintiffs in the earlier suit. Moreover, the suit for partition has a recurring cause of action and one co-parcener cannot debar all the co-parceners to file a suit by abandoning the same. In my opinion, only because one co-parcener filed the previous suit and abandoned his claim by withdrawing the suit cannot debar other co-pareeners to institute a fresh suit for partition and Order 23, Rule 1 of the C.P.C. has got no application in the case. 32. Now the question is to be decided as to whether the suit is had for partial partition or not. Learned counsel for the appellants contended that the lands in Plot no.83 (deed of settlement) (Ext.5) and Plot no.165 (Sonia House) were not included in Schcdule I of the plaint and as such the suit is bad for partial partition. Learned counsel for the appellants drew my attention to the statements made by plaintiff no. 1 (P.W.4) in para-33, where he has stated that the joint family settled the plot No.83 with plaintiff no.1 for obtaining a loan for construction of a house. In para - 88, he further stated that there was no reason why Plot no.88 was settled with plaintiff no. 1. Learned counsel for the appellants contended that loan was repaid from joint family fund as the rent realised by the plaintiffs was utilised in such payment. It is further contended that the plaintiffs had no sufficient income to acquire the properties. 33. Learned counsel for the Respondents, on the other hand, contended that lands in both the plots were self acquired properties of plaintiff no.1 as these were settled by all coparceners in favour of plaintiff no.1 by a deed of Tamliknama which is, in fact, a deed of transfer by way of gift or convenience and not a family settlement. Plaintiff no. 1 got the loan from Housing Department for its construction. He has relied on Exts. 8, 9-8 to 9-D, I to II-J, 12, 14, 20 etc. Learned counsel for the Respondents further contended that so far Plot No. 165 is concerned, the same had been purchased by plaintiffs out of their own earnings because the plaintiffs had sufficient means for that. In support of his contention, he relied on Exls. He has relied on Exts. 8, 9-8 to 9-D, I to II-J, 12, 14, 20 etc. Learned counsel for the Respondents further contended that so far Plot No. 165 is concerned, the same had been purchased by plaintiffs out of their own earnings because the plaintiffs had sufficient means for that. In support of his contention, he relied on Exls. 5 series, 17 series, 18 series, 1, 16 and 16 A, 6 series, 9 and 9-A etc. 34. The learned trial court has dealt with this aspect from Paragraphs 47 to 53. I have also considered the arguments of the learned counsel for the parties in this regard and also perused the reasonings given by the trial court. Admittedly, the properties which stand in the name of plaintiff no.1 was originally the joint family properties but the plaintiffs claim property by virtue of Ext.5 (Registered deed of settlement). The status of the properties being coparcenary in nature do not change its characler as the plaintiff no.1, being the member of the coparcenary, held the property on behalf of the coparceners. I am in disagreement with the reasonings of the trial court and hold that the lands and house in Plot No.83 are joint family properties and should have been included in the Schedule of the Plaint in the partition suit. So far Plot No. 165 is concerned, I do not accept the argument that Plaintiff no. 1 had purchased the same from his own earnings as there is no sufficient evidence to show that the plaintiffs had sufficient means to acquire such property. Moreover, admittedly, the joint family have the nucleus to purchase several properties. Accordingly, I am of the opinion that the reasonings given by the trial court are not supported by evidence and consequently I hold that lands in Plot No. 165 are also joint family property. 35. As in a suit for partition, the defendants are also deemed to be plaintiffs and as they have taken the stand in written statement that this property in Plot No.165 is also liable to partition, let the preliminary decree be prepared accordingly, mentioning these two plots i.e. Plot No.83 and Plot No. 165 and carve out the Takhta according to the share of the parties. In the result, the findings of the trial court regarding the lands in these two plots arc set aside. In the result, the findings of the trial court regarding the lands in these two plots arc set aside. No other point was urged by the parties in First Appeal No. 155 of 1990. 36. Coming to the First Appeal No. 190 of 1992. The learned counsel for the appellants contended that the suit is bad for non service of proper notice under section 106 of the T.P. Act. It is further contended that all the lessors have not joined in the suit for eviction and as such the plaintiffs alone cannot file the suit for eviction of the lessee. The appellants, after expiry of the lease, are continuing in possession of the premises by payment of rant to the lessor and as such the suit by the plaintiffs is not maintainable. 37. Learned counsel for the Respondents, on the other hand, contended that where a lease is for a definite term, it expires by efflux of time by reason of section 111(A) of the T.P.Act and as such service of notice under section 106 of the T.P.Act is not necessary for determining of the lease. It is argued that the suit by one out of two or more joint owners making other as proforma defendants is maintainable. Learned counsel also contended that act of holding over the property after expiry of the term of the lease does not create tenancy of any kind and mere acceptance of rent docs not give any right to the lessee to retain the possession. 38. On the question of service of notice under section 106 of the T.P. Act, the argument of the learned counsel is for the appellants is that as there is specific stand by the defendant no.1 that he was a tenant holding over within the meaning of section 116 of the Act and defendants 2nd set have also admitted the fact that they were realising the monthly rent from defendant no. 1, the notice under section 106 of the T.P. Act was a must. Taking into consideration the averments made in the plaint and the written statements of the contesting defendants, I am of the opinion that a tenant cannot be ejected at the instance of only one of the land-lord - where the tenancy has been created by several land-lords. All the land-lords must have joined in giving notice to the tenants before determining the tenancy. All the land-lords must have joined in giving notice to the tenants before determining the tenancy. My this view is supported by the decision in the case of Abdul Hamid vs. Bhuwaneshwar Prasad, as reported in AIR 1953 Nagpur 18. In the case of Smt. Shanti Devi vs. Amal Kumar Banerjee reported in AIR 1981 SC 1550 , it has been held as follows : "Undoubtedly, S. 111 (a) of the Transfer of Property Act, which deals with determination of a lease by efflux of time, has to be read with S.116 of the Act. But in the present case there is no allegation by the defendant that he was a tenant holding over within the meaning of S.116 of the Act. Now, in order that a lease should be deemed to have been continued in favour of the defendant, it was necessary to show that he remained in possession of the premises demised after the determination of the lease granted to him and the plaintiff had expressly or by necessary implication assented to his continued possession. There being no such plea of holding over, the matter falls to be governed by S. 111(a) of the Transfer of Property Act. If the period of lease had expired on January 10, 1970, the relationship of landlord and tenant ceased and the defendant became a trespasser. In the present case, the respondent who was the defendant, in Ground No.6 of his memorandum of appeal before the High Court urged that the courts below should have held on the basis of the plaintiff's case read with the lease deed that the lease would expire on January 10, 1970. There was, therefore, no question of service of any notice under S. 106 of Transfer of Property Act. 39. From the above authoritative pronouncement, it is clear that in the present case where a definite stand has been taken by the contesting defendants that even after the expiry of the period of lease, the defendant No.1 was holding over by payment of rent to some of the co-lessors, in my opinion, before filing of the suit notice under section 100 of the T.P. Act was necessary and in absence of the same, the suit is not maintainable. 40. Learned counsel for the appellants had contended that Gauri Shankar Bhanjo, defendant no. 40. Learned counsel for the appellants had contended that Gauri Shankar Bhanjo, defendant no. 1 (since deceased) had taken the lease by registered deed on 10-9-1993 executed by Deo Lal Singh and other coparceners of joint family in respect of the suit land for a period of 20 years. The plaintiffs arc the branch of Deo Lal Singh. Defendant Nos.7 to 10 are the members of the joint family of Deo Lal Singh. The case of Defendant Nos. 7 to 10 is that the suit premises in the eviction suit has been exclusively allotted to the share of these defendants and these defendants become the absolute owners or the suit premises and since then they have been realising the monthly rent from Gauri Shankar Bhanjo and as such the plaintiffs have got no concern nor any right, title and interest in the suit premises and they are not entitled to evict the defendants from the suit premises. Admittedly, Defendant Nos.7 to 10 are also lessors as per the term of the deed of lease. 41. Learned counsel for the Respondents, on the other hand contended that one of the co-owners can file a suit for eviction by impleading the other co-owners as party defendants and the suit for eviction is maintainable. In this connection, he has relied in the decision of Jahar Roy v. Premji Bhimji Mansata and another, reported in AIR 1977 SC 2439 . 42. In my opinion, the argument of the learned counsel for the Respondents is devoid of any merit. The decision cited by him is of no help, inasmuch as, in that case the Supreme Court was dealing with a case under section 45 of the Contract Act and has held that suit by one out of two joint promisees making the other two as proforma defendants was maintainable. 43. On the other hand, in my opinion, in a case of a registered lease which is a bilateral instrument, created by the parties and moreover when the suit is governed by the provisions of Transfer of Properly Act and not by the B.B.C. Act, in that circumstances, one of the lassors cannot seek eviction of the lessee when the other lessors object to the evict ion of the lessee. I am fortified by the decision of this Court as reported in AIR 1939 Patna 428 (Jadunandan Bas and another vs. Mt. Maho and others). I am fortified by the decision of this Court as reported in AIR 1939 Patna 428 (Jadunandan Bas and another vs. Mt. Maho and others). Similarly, the decision of Full Bench as reported in AIR 1988 Palna 58 : 1987 PLJR 1978(FB) (Sharfuddin and others v. Bibi Khatija and another) relied on behalf of the Respondents have no application, inasmuch as, the Full Bench was considering the case under the BBC Act and not under the general law. 44. I n this context, it is relevant to quote Paragraph-19 of the said judgment: "The theory of a joint decree for possession in favour of all the co- owners being passed and no eviction under S.11(1)(d) being possible is patently without merit. Herein we have to consider the matter within the framework of the Rent Act. It is impermissible and illogical to travel beyond the clear and detailed statutory provision of S.11 of the 1947 Act. Reference to the general civil law of landlord and tenant after the superimposition of the statutory rent law thereon is not only uncalled for but, in my view, would be wholly misleading. It is well known that, unless the provisions are pari materia, a precedent with regard to one provision can possibly have no relevance to the other. Herein the general civil law of landlord and tenant and the remedies open thereunder are now poles apart from the statutory imposition of conditions under the Rent Act, 1947 and the bar on eviction imposed within the narrow parameter of S.11 thereof. Calling in the aid of concept of a joint decree in favour of all co-owners in civil law is thus wholly irrelevant to the issue....." 45. In the case of Pal Singh vs. Sunder Singh (dead) by Lrs. & others 1989 (1) SCR 67 , the Supreme Court has observed that when the other co-owner did not object to the eviction, one co-owner could maintain an action for evict ion even in the absence of the other co-owner. 46. Keeping in view the above authoritative pronouncement of the Apex Court as well as this Court, the point advanced by the learned counsel for the parties has to be answered. 46. Keeping in view the above authoritative pronouncement of the Apex Court as well as this Court, the point advanced by the learned counsel for the parties has to be answered. In the present case, the lessors and the lessee arc bound by the terms of the document which is a bilateral one and as such it cannot be determined by one of the lessors when other lessors are objecting for such determination. In a case of eviction under the B.B.C. Act, the position is completely different as the term "landlord" has been defined in the Building Control Act by giving an extending meaning of the term. In a number of decisions, it has been laid down that one co-owner can file a suit for eviction in a case governed by the B.B.C. Act. But in a case of eviction under a registered lease where the provisions of Transfer of Property Act is applicable, one lessor cannot file a suit for eviction of the lessee when other lessors object to the same, simply on the ground that it is a one document which is a bilateral one. In this case it is not disputed that the vacant land was leased out to the defendant no.1. In such view of the matter, in my opinion, the B.B.C. Act has no application in this case and provisions of T.P. Act will apply to the case. 47. For t he reasons aforesaid, in my opinion, the trial court has erred in holding that one of the co-owners can file a suit for eviction over-looking the fundamental facts that the present suit is not governed by the B.B.C. Act rather it is governed by the general law, namely, the T. P. Act and document of lease is abilateral one. In such view of the matter, I am constrained to hold that the present suit by the plaintiffs alone is not maintainable in the eye of law, inasmuch as, defendant nos.7 to 10 did not ask for eviction of the lessee rather they objected to the same. 48. I, accordingly, hold that the decree for eviction passed by the trial court is against law and as such it is liable to be set aside. 49. In the result, the decree for eviction is set aside and consequently all the findings of the trial court regarding payment of damages and other arrears are set aside. 50. 48. I, accordingly, hold that the decree for eviction passed by the trial court is against law and as such it is liable to be set aside. 49. In the result, the decree for eviction is set aside and consequently all the findings of the trial court regarding payment of damages and other arrears are set aside. 50. For the reasons stated above, First Appeal No.155 of 1990 is dismissed with modification, as mentioned in the judgment. First Appeal No.190 of 1992 is allowed and the judgment and decree passed by the trial court are hereby set aside and the plaintiff's suit for eviction of the defendants is dismissed. 51. However, in the facts and circumstances of the case, the parties shall bear their own costs in respective appeals.