The above two Civil Revision Nos.65 of 1983 and 2J3 of 1983 have been preferred by the revision petitioners (defendants) against the same judgment of reversion on appeal dated 23.3.83 of the District Judge, Kamrup in Title Appeal No.7 of 1981 by which the learned District Judge, Kamrop decreed the Title Suit No.90 of 1974 for eviction of the revision petitioners/defendants. 2. The suit house in question is a two storeyed house being Municipal Holding No.47 of Ward No.5 (now Ward No.20) of Gauhati Municipal Corporation with five rooms, one bath room, one kitchen, one room for Reserving water, one sanitary latrine on the first floor with other out door constructions. The predecessor-in-interest of this property was one Ladi Agarwallani under whom the predecessor in-interest of the present revision petitioner/defendants came to possession of the suit house as a tenant at a monthly rent of Rs.250/- PM. After the death of said Ladi Agarwallani her two daughters, namely, Buchi Agarwallani and Bhagwandevi Agarwallani became the owners of the suit house and they served notice on the predeeessor-in-interest of the revision petitioners on 20.9.66 demanding vacant possession on expiry of the tenancy by 31.10.66. However, by fresh lease the revision petitioners obtained possession from Buchi and Bhagwandevi for 7 years since 1.6.67 on enhancement of rent from Rs. 250/- to Rs.500/- PM on the condition that each of the two owners will receive Rs.250/- respectively as their respective share as joint owners. Subsequently, when the owners refused to accept the rent the same was deposited in the Court on 15.7.74 and are claimed to be paying onwards. 3. The above named two joint owners filed Title Suit No.90 of 1974 on 23.8.74 in the Court of .Assistant District Judge No.1, Guwahati against the defendants/revision petitioners, namely, Tulsi Swami, Bharat Store & Agencies, Sekhar Swami, Devendra Swami for ejectment and recovery of khas possession claiming bonafide requirement of the suit house for their residence and for business purposes. 3. The above named two joint owners filed Title Suit No.90 of 1974 on 23.8.74 in the Court of .Assistant District Judge No.1, Guwahati against the defendants/revision petitioners, namely, Tulsi Swami, Bharat Store & Agencies, Sekhar Swami, Devendra Swami for ejectment and recovery of khas possession claiming bonafide requirement of the suit house for their residence and for business purposes. In the plaint specific claim of the plaintiff/opposite parties was that in case the tenant are ejected they would reconstruct the house for their partition so that the two families of both the plaintiffs can be accommodated and further point for ejectment was that the defendants are defaulters from January, 1974 and that the defendant No.1 Tulsiram without the knowledge, consent and permission of the plaintiffs started partnership business under the name of the defendant No.1 alleging sub-letting of the suit house illegally. 4. The allegations and claim of the plaintiffs were denied by the defendants who contested the suit by filing written statement alleging that the main purpose of filing the title suit was enhancement of rent from Rs.500/- to Rs. 1,000/- and that as the defendants refused the enhancement, the suit was instituted on false grounds. The suit was dismissed after coming to the finding that there was no bonafide requirement; that the defendants are not guilty of default and that there was no sub-letting as alleged, by order dated 30.4.81 of the Assistant District Judge No, I, Guwahati. 5. On 12.6.81 one of the defendants Buchi Agarwallani sold her share in the suit house to Chand Ratan Swami, Gopi Krishna Swami, Indira Devi and Vijay Laxmi Swami by registered sale deed (Annexure 2 to the revision petition). Consequently Bhagwandevi Agarwallani filed Title Appeal No.7 of 1981 in the Court of learned District Judge, Kamrup impleading said Buchi Agarwallani as profoma respondent. In the said appeal the purchasers of the share of said Buchi Agarwallani (50% share holder of the suit premises) filed application on 5.7.82 informing the Court that they do not want eviction of the tenant (Annexure VI to the revision petition). Similar application was also filed before this Court in the Civil Revision on 15.7.92 praying for dismissal of the appeal. As stated above the learned District Judge allowed the appeal and decreed the suit for eviction. 6. Similar application was also filed before this Court in the Civil Revision on 15.7.92 praying for dismissal of the appeal. As stated above the learned District Judge allowed the appeal and decreed the suit for eviction. 6. The defence case as transpires from the records and from the submissions of counsel of both sides is that the legal representatives of the opposite parties/plaintiffs required the house for bonafide requirement and .that being a defaulter of rent, the revision petitioners/defendants are liable to be evicted. The point reiterated before this revisional Court by the revision petitioners/defendants is that being joint landlords with the opposite parties/plaintiffs in respect of the suit premises and not having transferred the. 50% share in favour of others including the tenants and that transferee having specifically objected before the appellate Court as well as before the High Court that they do not want eviction of the revision petitioners/tenants (petitioners in Civil Revision 213 of 1983) the suit is not maintainable as the suit house is an impartitioned ejmali property of both the plaintiff's and the purchasers of share of Buchi Agarwallani. Further contention of the revision petitioners is that the premises of the co-owners are still joint and no partition has yet been made and as such each of the co-owners has title in each of the premises and rooms, therefore, the decree is not executable because of the objection of the co-owners and consequently the opposite party No. 1 is not entitled to get decree for eviction in respect of the entire suit premises as described in the plaint as she is not the owner of the entire premises. Further contention is that there cannot be any splitting of tenancy, more so, when mere is no specific demarcated share of the opposite party No. 1 and consequently no decree for eviction can be passed. Mr. Goswami, counsel for the revision petitioners submitted that after sale of half portion of the suit house the plaint has not been amended and it was not done as the plaintiff is unable to show her specific share without partition and therefore she cannot seek eviction from the entire area as she is not the landlady for the entire suit premises. 7. For consideration of the points raised in this revision petition, I prefer to examine the maintainability of the suit at the outset. 7. For consideration of the points raised in this revision petition, I prefer to examine the maintainability of the suit at the outset. The main point regarding maintainability as contended by the revision petitioner is that though admittedly the land has been divided between the joint owners by partition the house standing thereon was not divided, therefore, the purchaser through Smti Buchi Agarwallani is continuing to be joint owner of the house and the purchaser never want to evict the tenants. 8. The admitted position is that the land in question was divided between the two sisters as co-owners on the basis of a perfect partition case filed before the Assistant District Judge under the Assarri Land Revenue Regulation and the land was divided accordingly. The logical conclusion would be that under such circumstances, any structure falling over the land, falling in the share of one such sharer would go along with the land. The admitted fact remains that when the revision petitioner obtained fresh lease for 7 years from both me joint owners and the rent was enhanced from Rs.250/- to Rs.500/- on the condition that each of the two owners will receive'Rs.250/- and this was continuing since 1.6.67. This shows that the defendant/revision petitioner divided the rent at the rate of Rs.250/- to the two joint owners accepting the individual claim over two-portions of the house separately. Therefore, the argument that there cannot be any partition of the house though the land was partitioned is not sustainable. In the case of Smti Sarju Devi & others vs. The Prescribed Authority & another (1977 All India Rent Control Journal 858) a Division Bench of the Allahabad High Court in a similar case held that when permission was granted under section 3 of the UP (Temporary) Control of Rent and Eviction Act, 1947, (old Act) what was decided was that the need of the landlords to occupy of the house was genuine and that the authority granting such permission did not consider, and was not required to consider, whether the landlord should get possession of the entire suit house or a portion thereof. It was further held that under section 21 of the said Act when the Prescribed Authority holds that the landlord bonafide requires the premises for his own occupation, the Prescribed Authority need not necessarily make order for eviction of the tenant from the entire house, but may order eviction from a portion of the house. As transpires from the feet of the case (supra) the house in question was big and Court held that the reasonable requirement of the landlord may be satisfied by giving him possession of a portion of the house by evicting the tenant from that portion of the house. Further the Court held that even if the Prescribed Authority finds that the tenant was acquired one fourth share in the suit house and has become a co-owner subsequent to the landlords filing application under section 21 of the Act, the Prescribed Authority has jurisdiction to make an order for eviction from a specified portion of the suit house. The Prescribed Authority need not wait until a portion of the suit house by metes and bounds, is effected by the civil Court and their Lordships after coming to such conclusion held that the Prescribed Authority failed to exercise the jurisdiction vested in it for not evicting the tenant from a specified portion of the suit house. 9. From the above reason I am of me view that in the partition suit the house would have to be given to the land owners upon which the house or part of it stands and so both the sisters would get the house standing over their respective lands and therefore there is no need for filing a partition suit. Further it is seen that the land was purchased by the defendant No. 1 from Buchi Agarwallani in 1981 and the petition that the purchasers did not want to evict the tenants was filed before the High Court as long as in 1993. Further it is seen that the land was purchased by the defendant No. 1 from Buchi Agarwallani in 1981 and the petition that the purchasers did not want to evict the tenants was filed before the High Court as long as in 1993. If this argument is accepted the legal heirs of Smti Bhagwandevi Agarwallani will never be able to regain possession of the land and the purchasers though purchased the share of Smti Buchi Devi Agarwallani will continue to occupy the land and house of Smti Bhagwandevi Agarwallani for all the time to come and will not allow eviction of her tenants on the ground that they continue to be joint owners of the house and did not want eviction of the tenants. From the case of Smti Sarju Devi & others vs. Prescribed Authority & another (supra) this situation can never be permitted when eviction can be made over a specified portion of the suit house: In the instant case the portion of the opposite party/plaintiff was clearly established since 1967 and the purchase in 1981 shows that portion of Buchidevi Agarwallani was sold to the revision petitioner and the other portion was occupied by the said tenants brought by the revision petitioner without the consent, knowledge of the opposite party/plaintiff. Agreeing with the findings of the Allahabad High Court judgment (supra) I hold that the tenant's alleged purchase of half of the share of the house in 1981 and his claim that he having become a co-share of the house was not liable to be evicted from the other portion of the house is not sustainable. As a tenant he is liable to be evicted from the other portion of the house without partition and not from the entire house. The submission of Mr. Goswami that from which particular portion of the house the tenant be evicted and which of the particular portion of the house the landlord, should get, can be decided only when the house in question is partitioned and that before the revision petition is decided actual partition is necessary - is not sustainable on the ground as stated above. Goswami that from which particular portion of the house the tenant be evicted and which of the particular portion of the house the landlord, should get, can be decided only when the house in question is partitioned and that before the revision petition is decided actual partition is necessary - is not sustainable on the ground as stated above. After purchase of the half of the tenanted house, admittedly the portion of Buchidevi Agarwallani, the tenant revision petition cannot be the co-owner of other portion of the house, and it is no longer open to the petitioner to continue to resist the claim of the other earlier co-owners. Petitioner cease to be co-owner as soon as the parties of all sides agreed to 50% of the separate rent by the 1967 agreement and subsequent sale of the individual distinct portion of Buchidevi's share. Even if the petitioner assumed to be co-owner with the opposite party, the distinct share of the opposite party plaintiff, i.e. the portion of the suit house, is absolved in his clear share and the tenant who claimed to be the co-owner can be evicted therefrom. 10. The law as it stands, in absence of any specific provision, the tenancy cannot be split up. But in this case the tenancy was split up when the lease contract was renewed for 7 years with condition that the enhanced rate of Rs. 500/- would be divided and be paid separately to each of the two sisters conceding to the separate ownership of the two sisters. Both the co-owners of the suit house had joined in filing the suit for eviction. Hence when the suit was filed it did not suffer from any infirmity and after sale of the portion of Buchidevi, in appeal, she was made profoma defendant, along with the purchaser/tenant. Apparently the position is that the suit house is not a Hindu joint family property, it was owned by the two sisters with two specific share. I respectfully agree with the decision of the Division Bench of Allahabad High Court (supra) which was arrived at relying on the decision of the Apex Court in the case of Badri Narain Jha & others vs. Rameswar Dayal Singh & others ( AIR 1951 SC 186 ). 11. I respectfully agree with the decision of the Division Bench of Allahabad High Court (supra) which was arrived at relying on the decision of the Apex Court in the case of Badri Narain Jha & others vs. Rameswar Dayal Singh & others ( AIR 1951 SC 186 ). 11. So long as the tenancy is not extinguished by merger of the interest of the landlord and that of the tenant does not by reason of his purchasing a share of the landlord's interest cease to be a tenant. It follows that he does not become a landlord as the same person cannot at the same time be both a landlord and a tenant. Admittedly, it is not the case of the defendant/petitioner that the tenancy of the suit house could be extinguished by the tenant purchasing a share in the house. From the above reasons I hold that even if the house is not partitioned in a partition suit, it was partitioned by conduct of the concerned parties and the clear separate portion of the suit house was occupied by some persons on subletting it by the petitioner who cannot claim the portion as joint/co-owner property and eviction is resisted that as co-owner they do not want eviction of the tenants. Therefore I hold that the suit is in form and is maintainable. 12. The next point required to be considered is whether the portion of the house in question is required bonafide. Admittedly the suit house is a valuable piece of property situated in the heart of business centre of Guwahati city. Plaintiff opposite parry required their portion of the house who are living in the house for their need. Further as claimed they are carrying their business/trade from the rented houses. That they want to construct the house for their residence and business purposes. The Apex Court in a series of recent decisions has taken less rigorous view to prove the bonafide requirement in the present context of the enjoyment of landlord's own property. In the case of Rajkumar Khaitan vs. BZ Khatun ( AIR 1995 SC 576 ) the ratio of the decision of the Apex Court is that for bonafide requirement, no precise name of the business required to be disclosed; that it is the prerogative of the landlord to require the land for its use. In the case of Rajkumar Khaitan vs. BZ Khatun ( AIR 1995 SC 576 ) the ratio of the decision of the Apex Court is that for bonafide requirement, no precise name of the business required to be disclosed; that it is the prerogative of the landlord to require the land for its use. As it is seen in this case since 1957 from the time of predecessors-in-interest, the suit house is in the occupation of the petitioner/defendants and in 1981, after a prolonged suit since 1974 for eviction the portion of the suit house was sold to the petitioner who claimed to become one of the co-owners of the entire suit property. It is also on record that the legal heirs of late Bhagwandevi required the house on the ground of bonafide requirement as well as eviction of the tenants for default. I find no any infirmity or illegality in the appreciation of the evidence on record by the first appellate Court which is the final Court on facts and which found misappreciation of evidence on record by the trial Court while dismissing the issue of bonafide requirement. Therefore I subscribe to the finding of the first appellate Court and affirm the same. 13. The next point for examination relates to the issue of default on the part of the tenants/petitioner. Materials on record shows that oh refusal to accept rent after the expiry of the seven year's agreement, the revision petitioner deposited the rent in the Court and the Misc Case (NJ)No.23 of 19:74 had been registered and the same was dismissed for want of payment of process fee. In this point the stand of the petitioner is that the petitioners proved by adducing evidence that they did not default in payment of rent although the pleader's clerk entrusted to deposit the process fee failed to deposit it with process requisites and an attempt has been made to pursuade the Court that defendant cannot be trapped by way of hyper technicality. 14. The question of default in an ejectment suit cannot be taken lightly as the cardinal point in such cases is question of default and proof of bonafide requirement. If once the default in payment of rent is established, a decree for ejectment is imminent because under the law once a defaulter is always a defaulter. 14. The question of default in an ejectment suit cannot be taken lightly as the cardinal point in such cases is question of default and proof of bonafide requirement. If once the default in payment of rent is established, a decree for ejectment is imminent because under the law once a defaulter is always a defaulter. While deciding the issue No.6, i.e., whether the defendant No. 1 had defaulted payment of rent of Rs.500/- in the month of January, 1974 the first appellate Court came to the decision after appreciating the evidence on record and me relevant provisions of law was discussed at length. The material on record (Ext 47, KT Case No.23 of 1974) transpires that the NJ Case No.23 of 1974 was struck off on 15.&74 as no challan was submitted showing the deposit of rent. Relying on catena of decisions the first appellate Court reached to the decision that as no process was filed in the Court in depositing the rent, the deposit is no deposit in the eye of Jaw as the deposit of the Court fee for the service of notice upon the landlord is a mandatory provision and violation thereof debarred the tenant from enjoying the benefit of section 5 (4) of the Act. 15. In die case of Jamnadas Dharamdas vs. Dr. J. Joseph Farrei & another ( AIR 1980 SC 1605 ) the Apex Court held that when the tenant does not fulfil the conditions as required under section 12 (3) (b) of Bombay Rents, Hotel and Lodging House Rates Control Act he cannot claim protection under section 12 (3) (b). This provision of the Act is similar to section 5(4) of the Assam Urban Areas Rent Control Act. It is further held that the conditions specified m the said section will have to be strictly observed by the tenant if he wants to avail himself of the benefits provided under the said section. 16. This view has been followed by the Apex Court from the decision in the h case of Ganpat Ladha vs. Sashikant Vishnu Shinde ( AIR 1978 SC 955 ) wherein it was held that if there is statutory default or neglect on the part of die tenant whatever may be the cause (underline supplied) the landlord acquires a right under section 1 2 (3) (a) to get a decree of eviction. 17. 17. Further I find no support in the submission of Mr. Goswami that supply of process fee as per section 5 (4) of the Act is not mandatory but only directory. 18. The law enunciated by the Apex Court in a series of decisions required to be discussed as the counsel for the petitioner insistently urged that for equity and justice mere technicality may be avoided. 19. In the case of (1982) 2 GLR NOC 8 it is held as follows : "So, the process fees, as required under sub-section (4) having not paid the., deposit of the rent is not as per the said sect ion and it cannot be said to be a deposit in accordance With law and as such the tenant cannot get any protection." 20. This view has been followed in 1991 (l)GLJ249(Shri Sudhir Chandra Deb & another vs. Sri Parsuram Prasad Verma & others) and in (1992) 1 GLR 250 (Shri Sudhir Chandra Deb & another vs. Sri Parsuram Prasad Verma & others). 21. The position of law is that the proceeding under section 5 (4) of the Act is a proceeding in the civil Court and therefore the procedure laid down in the Civil Rules and Orders is to be followed. 22. The note under Rule 42 of the Civil Rules and Orders framed by the Gauhati High Court is quoted below : "It should, be particularly noted that the additions made by the High Court to Schedule I of the Civil Procedure Code requires that every plaint shall be accompanied by necessary number of its copies, draft forms of summons and fee for service thereof (Order 7 Rule 9 (1A) and a statement of party's address for service (as per Rule 15 of the High Court Rules and Order 6 Rule 14A)." 23. As it is seen it is mandatory and is the obligation of the party concerned to furnish the draft forms of summons or notice to be issued to the other party. Non judicial cases like deposit of rent etc. cannot deviate from this procedure as the consequence of the failure of the petitioner to furnish the draft forms of summons/notices will be that the Court will not be in a position to serve notice to the landlord. Non judicial cases like deposit of rent etc. cannot deviate from this procedure as the consequence of the failure of the petitioner to furnish the draft forms of summons/notices will be that the Court will not be in a position to serve notice to the landlord. Section (4) of the Rent Control Act provides that the Court shall cause notice of receipt of deposit of rent to be served on the landlord and the landlord shall nave the right to withdraw the rent so deposited. If due to the default of the tenant in depositing the rent, is not taking such steps, the Court is not in a position to issue notice to the landlord and consequently no deposit within statutory time even if the amount of rent is claimed to deposited with the application. It is mandatory on die part of the Court to issue notice to the landlord informing him about the deposit of rent in Court. When the deposit of rent found non deposit for not taking mandatory procedural steps, the Court is unable to inform in its statutory obligation to issue notice and in that case Court will be justified in dismissing the NJ Case resulting non deposit of rent. Apparently, as record shows, the NJ case was dismissed for non deposit of requisites etc and the judicial and logical inference is that there was no rent deposit by the tenant under the mandatory sections of the Act and therefore the tenant/revision petitioner defaulted the rent for the month of January, 1974 and once the tenant defaulted, he be considered as defaulter, even if he continues to deposit for subsequent months. In the present case, not only written up notices and copies were not submitted even the process fee was not paid. I cannot agree with the submission of the learned counsel for the petitioner that rent was deposited and deposit of process fee is not a part of rent. 24. In the Full Bench decision of this Court in Kali Kumar vs. Makhan Lal (AIR 1969 A & N 66) it was held : "The legislature having conferred benefits on the tenant could not have intended to make it a one way traffic absolute. 24. In the Full Bench decision of this Court in Kali Kumar vs. Makhan Lal (AIR 1969 A & N 66) it was held : "The legislature having conferred benefits on the tenant could not have intended to make it a one way traffic absolute. The quintessence of the proviso (e) to sub-section (1) of section 6 is to deny the benefit of protection conferred under section 6 (1) of the Act where the conditions for the same are absent." 25. From my above discussion I hold that the revision petitioners are defaulters and they did not comply with the mandatory provisions of section 5 (4) of the Assam Urban Areas Rent Control Act, by not depositing process fee and other requisites under the provisions of law and therefore cannot get any protection and the decree of eviction passed against them by the first appellate Court which is the last Court on fact suffers no infirmity which has been passed after appreciation of materials on record and the decision arrived at by the first appellate Court is legal and within its jurisdiction. 26. In deciding the question of sub-letting, it is seen that the findings and decision of the first appellate Court regarding sub-letting has not been assailed. 27. In my foregoing discussion, however, it is seen that petitioner is purchaser of the portion of other co-owner Buchidevi Agarwallani and it is not disputed that he is now the owner of that part of the house as well as part of the land on which his part of building is standing. The fact on materials remain that the Swamis were the tenants under both the co-owners and the extended agreement of lease expired on 31.5.74 as the agreement dated 12.6.67 is admitted by the petitioner. It is also admitted position oh record that M/s Bharat Store & Agencies (petitioner No.4) has been inducted by the petitioners who is presently occupying the share and portion of the opposite parties. Though the petitioners claim that the petitioner No.4 was inducted to the suit portion of the house with the knowledge of the opposite parties it is stoutly denied by them. The position of fact is that the petitioner No.4 was not brought to the possession of the other part by either of the earlier co-owners as no document in support of it was produced before the Court. The position of fact is that the petitioner No.4 was not brought to the possession of the other part by either of the earlier co-owners as no document in support of it was produced before the Court. This Court also has found in the above discussion that the opposite parties are independent separate owner of the other part of the suit house and has come to the conclusion that the co-owner's (petitioner's) status g as owner in that unsold part has not merged with the interest of the opposite parties and the petitioner still remained as tenant in his status under the opposite, parties and petitioner's choice/discretion to allow the petitioner No.4 to continue tenancy cannot be allowed as the materials shows that the petitioner sub-let the opposite party's portion/share of the house to the petitioner No.4 who was never a tenant under the opposite parties by any agreement or by permission. Mere knowledge of occupying the land cannot amount to permission of tenancy in the eye of law, more so, when the opposite party/plaintiffs case was to vacate their portion of the suit house. Even without any expressive document, a partner who has also a separate legal entity can occupy land with any pretext. 28. In my foregoing discussion I have viewed that the petitioner Nos. 1 and 2 are the tenants under the opposite parties and the opposite parties want their eviction and vacant possession on the ground of default and bonafide requirement and the petitioners/tenants are bound to do so. As I hold it is a clear case of sub-letting the portion to the petitioner No.4 (petitioner in Civil Revision 213 of 1983) by the petitioner Nos. 1 and 2, they violated the terms and condition of the agreement for which they are liable to be evicted. The findings on materials on record and the decision arrived at is legal which suffers from no infirmity and is within the jurisdiction of the learned first appellant Court. Accordingly I affirm the impugned judgment. 29. In the result the two revision petitions are dismissed.