Kesar Devi v. Shiv Ratan — 1998 DIGILAW 571 (RAJ)

Honble PRASAD, J.–The present revision petition arises out the order passed by the learned Additional District Judge No.2, Bhilwara in Civil Appeal No. 106/96 (58/92) dated 15.11.1996. (2). The learned Additional District Judge was seized of an appeal filed by the appellants who claimed themselves to be the tenants of the respondent Paras Ram. In that appeal an application was moved by the revision petitioner Kesar Devi alleging inter alia that she is the wife of Tola Ram, who was the tenant of the disputed premises. After death of Tola Ram, she alongwith her sons, the appellants in the appeal, inherited the tenancy and is a joint tenant with them. In the suit filed by the landlord she has not been impleaded as a party. She prayed that she should be impleaded as a party in the appeal because her rights are affected and unless she is heard being a tenant, no decree for eviction can be passed against her. (3). Certain dates are relevant for the decision of this revision petition. The original suit was filed on 10.8.1984. It was decreed against the tenants on 27.8.1992. An appeal against the decree/order of eviction was preferred on 24.9.1992. Appli- cation on behalf of Kesar Devi was preferred on 6.9.1996. (4). Learned counsel for the revision petitioner has urged that she is a tenant in the shoes of her husband and in terms of Section 3(vii)(b) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (referred to hereinafter as `the Act) she has inherited the character of a tenant. Since she is the wife of the decea- sed tenant and had been living with him, by operation of law she also became tenant. No suit can be maintained without impleading her as a party. She is a necessary party. He places reliance on a judgment of the Honble Supreme Court delivered in the case of Textile Association (India) Bombay Unit vs. Balmohan Gopal Kurup and another (1), and invited my attention to the following observations made in the aforesaid case: ``4. Mr. Lalit , counsel for the appellants argued that the ex parte decree obtained against the joint tenants was equally binding on the respondent. Reference was made in this context to the decision of this Court in Kanji Manji vs. The Trustees of the Port of Bombay 1962 (3) Supp. Mr. Lalit , counsel for the appellants argued that the ex parte decree obtained against the joint tenants was equally binding on the respondent. Reference was made in this context to the decision of this Court in Kanji Manji vs. The Trustees of the Port of Bombay 1962 (3) Supp. SCR 461 : ( AIR 1963 SC 468 ). and H.C. Pandey vs. G.C. Paul 1989(3) SCC 77 : ( AIR 1989 SC 1470 ). Both the cases relate to the validity of the notice issued to one of the joint tenants. It was held that the notice issued to one of them would be valid. We do not think that the principle stated in those cases on the facts obtained are relevant to the present case. There is a finding in this case that the respondent was as much a tenant as the mother and the other brother. That being the position the ex parte decree for eviction obtained against his mother and brother without impleading him in that suit has to be set aside. It is not suit sufficient as the Courts below have said that the decree was not binding upon the respondent. That decree cannot be kept alive against two other tenants and possession of the premises could be exclusively given to the respondents. The respondent cannot be put into exclusive possession of the premises since his mother and brother are also equally entitled to. It seems to us, therefore, the ex parte decree for eviction should be set aside and the petitioner should be impleaded as a party to that suit and it should proceed on merits. (5). Learned counsel for the respondents urged that the foundation has not been laid in the present case for the applicability of the aforesaid observations of the Honble Supreme Court made in the aforementioned case. It appears that the learned counsel for the revision petitioner has not properly read the aforesaid judgment. In that case, the Honble Supreme Court has found that ``There is a finding in this case that the respondent was as much a tenant as the mother and the other brother. These observations were taken by the Honble Supreme Court from the finding of the learned trial Court. This finding only mean that the Honble Supreme Court has not found that tenant in the case of Textile Association (India) (supra) was a joint tenant. These observations were taken by the Honble Supreme Court from the finding of the learned trial Court. This finding only mean that the Honble Supreme Court has not found that tenant in the case of Textile Association (India) (supra) was a joint tenant. In the case of joint tenant the Honble Supreme Court has held in the case of Kanji Manji vs. The Trustees of the Port of Bombay (2). as under:- ``7. The argument about notice need not detain us long. By the deed of assignment dated February 28, 1947, the tenants took the premises as joint tenants. The exact words of the assignment were that... the Assignors do and each of them doth hereby assign and assure with the Assignees as joint Tenants..... The deed of assignment was approved and accepted by the Trustees of the Port of Bombay, and Rupji Jeraj and the appellant must be rearded as joint tenants. The trial Judge, therefore, rightly held them to be so. Once it is held that the tenancy was joint, a notice to one of the joint tenants was suffici- ent, and the suit for same reason was also good. Mr. B. Sen in arguing the case of the appellant, did not seek to urge the opposite. In our opinion, the notice and the frame of the suit were, therefore, proper, and this argument has not merit. (6). On the strength of the observations of the Honble Supreme Court in Kanji Manjis case (supra) the learned counsel for the respondents urged that if the court below has followed the law laid down by the aforesaid case, then no illegality has been committed. In the instant case, in favour of the revision petitioner there is no finding by any competent court that she is as much a tenant as the other tenants are. She is claiming herself to be a joint tenant. The findings in the case of Textile Association (India) (supra) are not of a joint tenancy. Thus, the case relied upon by the learned counsel for the petitioner is distinguishable. (7). She is claiming herself to be a joint tenant. The findings in the case of Textile Association (India) (supra) are not of a joint tenancy. Thus, the case relied upon by the learned counsel for the petitioner is distinguishable. (7). He further places reliance on another judgment of the Honble Supreme Court in the case of H.C. Pandey vs. G.C. Paul (5), wherein it was observed as under:- ``It is now well settled that on the death of the original tenant, subject to any provision to the contrary either negativing or limiting the succession, the tenancy rights devolve on the heirs of the deceased tenant. The incidence of the tenancy are the same as those enjoyed by the original tenant. It is a single tenancy which devolves on the heirs. There is no division of the premises or of the rent payable therefor. That is the position as between the landlord and the heirs of the deceased tenant. In other words, the heirs succeed to the tenancy as joint tenants. In the present case it appears that the respondent acted on behalf of the tenants, that he paid rent on behalf of all and the accepted notice also on behalf of all. In the circumstances, the notice was served on the respondent was sufficient. It seems to us that the view taken in Ramesh Chand Bose (A.I.R.1977 All 38) (supra) is erroneous where the High Court lays down that the heirs of the deceased tenant succeed as tenants in common. In our opinion, the notice under S.106 of the Transfer of Property Act served by the appellant on the respondent is a valied notice and therefore the suit must succeed. (8). Thus, he says that Textile Association (India) case was decided by the Honble Supreme Court treating all to be tenants in their own rights and it was not treated to be a case of joint tenancy, whereas under the Rajasthan Law in terms of Section 3(vii)(b), the tenancy is inherited by the surviving heirs if they were living at the time of death. Section 3(vii)(b) of the Act reads as under:- ``(b) in the event of death of the person as is referred to in sub clause (a), his surviving spouse, son, daughter and other heir in accordance with the personal law applicable to him who had been, in that case of premises leased out for residential purposes ordinarily residing and in the case of premises leased out for commercial or business purposes, ordinarily carrying on business with him in such premises as member of his family upto his death. (9). That being the position, the petitioner can at best be treated to be a joint tenant and if other tenants are being proceeded against then in terms of the law laid down in the case of Kanji Manji (supra) she is not entitled to be impleaded as party. (10). Learned counsel for the respondent plaintiff further stated that the suit was filed in the year 1984, the applicant had the knowledge about the filing of the suit and in this back-ground for 12 years until the filing of the application in 1996 she kept on sleeping and at the appellate stage she has filed the application which is belated and therefore, she is not entitled to be impleaded as a party. (11). I have heard the learned counsel for the parties and have also given my thoughtful consideration to the rival contentions urged by them. The operation of law gives a status of joint tenants to the heirs if they were at the time of death of the original tenant residing with the original tenant. The applicant has asserted that she was living with the deceased tenant at the time he died. Therefore, what comes out ultimately in favour of the revision petitioner is that she was a joint tenant alongwith other appellants in the appeal. The other appellants were impleaded as parties in the suit. The Honble Supreme Court in the case of Kanji Manji (supra) has held 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. In view of the law laid down by the Honble Supreme Court in the case of Kanji Manji (supra) no fault can be found with the frame of the suit as instituted by the plaintiff before the trial Court. (12). In view of the law laid down by the Honble Supreme Court in the case of Kanji Manji (supra) no fault can be found with the frame of the suit as instituted by the plaintiff before the trial Court. (12). The Court below has found that the plaintiff cannot be made to litigate against a party if he does not desire to do so. The import of Textile Association (India) case (supra) relied upon by the learned counsel for the petitioner does not affect the merits of the present case. In that case, the Honble Supreme Court was proceeding on the premises that ``There is a finding in this case that the respondent was as much a tenant as the mother and the other brother. The Honble Supreme Court has treated tenants in Textile Association (India) case on a different pedestal than a joint tenant on the basis of the finding given by a judicial Court. The law laid down in Kanji and Manji (supra) and H.C. Pandeys case (supra), where the cases of admitted joint tenants were considered, was not held applicable. (13). The Honble Supreme Court in Textile Association (India) case (supra) has not unsettled or distinguished the law in relation to a joint tenant as stated in Kanji Manji case (supra). The statement of law in this case is clear and unambiguous. As and when there is a joint tenancy, it could be validly terminated, if notice was issued to one of the tenants and further the frame of the suit would also not be bad on this count. In the words of the Honble Supreme Court itself ``a notice to one of the joint tenants was sufficient, and the suit for the same reason was also good. This position of law in the case relied upon by the learned counsel for the petitioner has neither been disapproved nor its correctness has been dealt with. There is no observation in this case by virtue of which it has been stated that the law relating to joint tenant as stated in Kanji Manji case (supra) is either bad or dis- tinguishable. There is no observation in this case by virtue of which it has been stated that the law relating to joint tenant as stated in Kanji Manji case (supra) is either bad or dis- tinguishable. The judgment in the case of Textile Association (India) (supra) has turned out on the basis of a finding of the trial Court which is akin to treating the petitioner as a tenant in common and, therefore, the ratio laid down in the case of Kanji Manji (supra) has not been disturbed. In Textile Association (India) case (supra) the Honble Supreme Court has held that ``We do not think that the principle stated in those cases on the facts obtained are relevant to the present case. It can be safely said that the Apex Court has not considered it fit to apply the law laid down in Kanji Manji case (supra). In this back-ground, it cannot be observed that the ratio laid down by the Honble Supreme Court in the case of Kanji Manji will not govern a case involving a case of joint tenancy. (14). In the instant case, on the strength of Section 3(vii)(b) of the Act the petitioner is a joint tenant and the law laid down by the Honble Supreme Court in the case of Kanji Manji in relation to a joint tenancy will govern the field. In this back-ground, there does not appear to be any jurisdictional error committed by the court below in rejecting the application of the revision petitioner. It would be important to note here as well that the court below has rejected the application on the ground of delay as well. 12 years delay was considered to be long enough to deny the relief prayed for. In these circumstances, this Court is not inclined to interfere in exercise of its power under Section 115 C.P.C. In rejecting the applica- tion under Order 1 Rule 10 C.P.C. the Court below has not committed any jurisdictional error which can be made the subject-matter of interference by this Court in exercise of its jurisdiction under Section 115 C.P.C. (15). In the result, there is no force in this revision petition and the same is dismissed. No orders as to costs.