Shanti Devi v. Surendra Sahu — 1996 DIGILAW 179 (PAT)

Judgment P.K.Deb, J. 1. The defendant in Eviction Suit No. 7/17 of 1987-89 before the Additional Munsif, Ranchi, is the appellant in this case. The plaintiff-respondent filed the above mentioned eviction suit against the defendant-appellant for ejectment from the suit premises on the ground of default and in course of proceeding the case, amendment was sought for inclusion of relief for arrears of rent. The said amendment was rejected by the learned Additional Munsif Ranchi, against which the plaintiff-respondent came up before this Court Civil Revision No. 220 of 1989 (R) and the same was allowed vide order dated 18.1.1990 and the relief for arrears of rent was also included. 2. The case of the plaintiff is that the defendant-appellant (Smt. Shanti Devi) was inducted as tenant by the plaintiff-respondent in Holding No. 738 within Ward No. II of Ranchi Municipal Corporation over M.S. Plot No. 12.23 at the rental of Rs. 75.00 per month which was agreed to payable by the tenant within the second week of every successive month, but the plaintiff-respondents case in that the rent was paid last on 12.10.1986 for the month of September, 1986, and since October, 1986, she had not paid any rent for the suit premises and, as such, she became defaulter within the meaning of Sec. 11(1)(d) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 (hereinafter to be referred to as the Act). As stated above, arrears of rent was also claimed by way of amendment of the plaint. 3. The defendant-appellant by filing written statement took the plea that the suit suffers from non-joinder of necessary parties in as much as the suit premises was original owned by Braj Mohan Sahu and he died leaving behind four sons and two daughters and the plaintiff-respondent is only one of the sons of the originally landlord and he is not competent to maintain the eviction suit without inclusion of other co-owners. It has further been contended by the defendant-appellant that the suit premises was originally given in tenancy to Ramjee Prasad Verma, husband of the defendant-appellant in 1953-54 at the rental of Rs. 30.00 per month. It has further been contended by the defendant-appellant that the suit premises was originally given in tenancy to Ramjee Prasad Verma, husband of the defendant-appellant in 1953-54 at the rental of Rs. 30.00 per month. In, 1971, Ramjee Prasad Verma died leaving behind his widow, the defendant-appellant and two sons Mahesh Chandra Verma and Suresh Chandra Verma and as such the tenanted premises have been inherited not only by the defendant-appellant but also by her two sons and without joining the two sons of the defendant-appellant, the eviction suit cannot be maintained. On the ground of default, it has been stated that the defendant-appellant paid rent upto the month of February, 1987 and when the rent for the month of March, 1987 was tendered, the plaintiff refused to receive the same and as such it was sent through money order and thereafter on every months, rents are being remitted through money order and the plaintiff is going to refuse the same. 4. In course of trial of the case, the plaintiff proved the counter-foil of the rent receipt signed by the defendant (Smt. Shanti Devi) showing thereby that the last rent was paid upto September, 1986. As regards the rents for the month of October, 1996 to February, 1987, the defendant attempted to show that the rents were paid to another co-owner and as such she cannot be held to be defaulter as from March, 1987, she was tendering the rent through money orders. 5. Regarding the relationship of landlord and tenant is concerned, the original court held that the defendant Smt. Shanti Devi was inducted as tenant and she remained as tenant in the suit premises under the plaintiff and as such the relationship existed between the two. 6. The case of the plaintiff is that although the suit premises was originally owned by his father, by was of. will, the same has been given to him but that will has not been probated. But the fact remained that the suit premises remained in the share of the plaintiff and he inducted the defendant as tenant over the suit premises. It is denied that Ramjee Das Verma was the original tenant. The learned court below held that the defendant was daughter and as such granted the decree of ejectment. But the fact remained that the suit premises remained in the share of the plaintiff and he inducted the defendant as tenant over the suit premises. It is denied that Ramjee Das Verma was the original tenant. The learned court below held that the defendant was daughter and as such granted the decree of ejectment. Against such ejectment decree, the defendant preferred appeal being Title Appeal No. 53/1993/9/94 before the 8th Additional Judicial Commissioner, Ranchi, and the appeal was dismissed maintaining the ejectment decree passed by the original court, hence this second appeal. 7. Mr. V. Shivnath, appearing for and the on behalf of the appellant by referring to the evidence on record attempted to show that in. the year 1953-54 Ramjee Das Verma, the predecessor of the defendant was tenant and the same tenancy continued and as such without making the two sons of the defendant as party defendants, the ejectment suit is not maintainable. He has referred to a decision of this Court in Satyedeo Prasad and Anr. V/s. Bibi Zulekha Khatoon and Ors. 1984 BBCJ 498 , wherein it was held that tenant also includes heirs and legal representatives of the deceased tenant. He has also referred a decision of the Supreme Court in Narain and Ors. V/s. Om Prakash Gupta -- , wherein it was held that commercial tenancies under the Haryana Urban Control of Rent (Eviction) Act are heritable. These decisions would be applicable only when it could be held that the original tenancy with Ramjee Das Verma continued and there was no fresh tenancy in favour of the defendant Smt. Shanti Devi, but both the fact finding courts held in unequivocal terms that Shanti Devi was inducted as tenant by the plaintiff and she alone continued to be a tenant. 8. Mr. M.Y. Eqbal, appearing for and on behalf of the respondent-landlord submitted there is no scope of this Court to enter into such factual aspect when fee two fact finding courts had decided that the relationship of landlord and tenant existed between the plaintiff and the defendant alone. He has further referred to the definition of tenant as contemplated under Sec. 2(h) of the Act wherein it was held that heritability continues regarding the tenancies after the termination of the tenancy of the original landlord. He has further referred to the definition of tenant as contemplated under Sec. 2(h) of the Act wherein it was held that heritability continues regarding the tenancies after the termination of the tenancy of the original landlord. By this he wants to submit that in a pending case if the tenant dies then and then only the heirs should be submitted but according to him, as per the definition itself after the termination of tenancy, in place of original itself tenant, the surviving spouse would come as a first to inherit the tenancy and secondly sons and daughters come in. Be it what it may, this Court should not enter into that matter as, in the present case, there is no termination of tenancy of the original landlord rather the case of the plaintiff is simple that the defendant Shanti Devi was alone inducted as a tenant and as such she alone can be evicted by the landlord. So there is no scope of this Court when there is findings by the two courts that Shanti Devi alone was a tenant and in that respect the suit does not suffer from non-joinder of necessary parties. Moreover one of the co-owners can very well maintain the ejectment suit as the same becomes the established law by this time. 9. Mr. V. Shivnath has also admitted that position but, according to him, if a co-owner can maintain ejectment suit then payment of rent to another co-owner can absolve the liability of default against a tenant. According to him, when rents were paid to another co-owner by the defendant after September, 1986, then such payment should be considered as payment to the plaintiff-landlord. I am not in a position to agree with the such contentions when it has been established that there was relationship of landlord and tenant between the plaintiff and the defendant then the plaintiff alone is entitled to receive payment from the defendant and non-else. 10. It appears that in the Rent Control proceeding also the plaintiff alone had proceeded against the defendant and the counter-foil (Ext. 1) also, the defendant had endorsed her signature in favour of the plaintiff alone. Thus, in that aspect also, there is no force in the submission of Mr. V. Shivnath regarding the non-joinder of necessary co-owners as party plaintiffs in the suit. 11. 1) also, the defendant had endorsed her signature in favour of the plaintiff alone. Thus, in that aspect also, there is no force in the submission of Mr. V. Shivnath regarding the non-joinder of necessary co-owners as party plaintiffs in the suit. 11. In view of the discussions made above, I do not find any substantial question of law involved in this second appeal and hence the same is dismissed having no force under Order XLI, Rule 11 of the Code of Civil Procedure but Considering the fact that the defendant-lady was continuing in possession in the suit premises for long years, some time ought to have been allowed to the defendant to search out an alternative accommodation. In that view of the matter, three months time is hereby allowed to the defendant to search out the alternative accommodation and the defendant continue to deposit rent for these three months also in the original court as per the terms of the tenancy itself, in default therefore, the plaintiff-decree-holder shall be at liberty to take possession by execution of the decree within the period itself. If the premises are not vacated within the three months next from this date by the defendant-tenant, the plaintiff-landlord shall be at liberty to take possession of the suit premises through execution proceeding. In the nature and circumstances of the case, I shall make no order as to costs.