Sunday, 23 June 2019

Whether eviction suit filed by one of co-owner is maintainable if some of co-owners had given assent for continuance of tenancy?

Tenancy - Eviction suit - Maintainability of - Bihar Building (Lease, Rent and Eviction) Control Act, 1982 - Present application filed for challenging order of eviction, on ground that eviction suit by some co - owners was not maintainable because other co - owners had given assent for continuance of tenancy - Whether suit for eviction brought by some of co-owners for ejectment of tenant who had incurred liability to be evicted under Act was maintainable - Held, cleared from fact that lease was determined and it was not renewed by Plaintiffs for further period - However, one of co- owners had given his assent to Defendant to continue his possession over suit premises - Appeared that contract for tenancy was one and it was by-lateral contract between parties - One of co-owners had no right to make contract unilateral by splitting interest of other co-owners - Thus, some of co-owners had every right to file suit for evicting tenant who had incurred liability to be evicted under Act - Therefore, suit brought by Plaintiffs was maintainable - Application dismissed. [paras 9 and 11]


IN THE HIGH COURT OF JHARKHAND

Civil Revision No. 20 of 2008

Decided On: 16.04.2014

Shyamdeo Prasad Vs.  Quurban Hussain Hawari

Hon'ble Judges/Coram:
Dhrub Narayan Upadhyay, J.



1. This Civil Revision has been directed against the Judgment dated 05.05.2008, passed by Additional Munsif-III, Ranchi and Decree signed on 14.05.2008, in connection with Title Eviction Suit No. 54/2001 by which the Suit filed by the opposite party Nos. 1 to 3 has been decreed in view of the provisions contained under Section 11(1)(e) read with Section 14 of the Bihar Building (Lease, Rent and Eviction) Control Act, 1982 (hereinafter referred to as an 'Act' in short) and the petitioner has been directed to vacate the suit premises within three months from the date of Judgment failing which he shall be liable to be evicted with due process of Court. The respondent Nos. 1 to 3 (hereinafter referred as 'plaintiffs') filed Title Eviction Suit No. 54/2001 on 24.12.2001 for (A) a decree for ejectment of petitioner (hereinafter referred as 'defendant No. V) from the suit premises and the plaintiffs be put in khas possession over the same; (B) Relief for cost of the Suit; and (C) For a decree for such other renef or reliefs if any, that the plaintiffs may be found entitled to.

The plaintiffs have made out a case that the defendant No. 1 was inducted as a tenant for a fixed period of 15 years, ending on 28.02.2001 and for that Md. Qurban Hussain Hawari and his two brothers namely Talib Hussain Hawari (now deceased) and Md. Khalil Hussain Hawari (Proforma defendant No. 2)/Opposite Party No. 4 had executed lease deed in favour of the defendant No. 1 in respect of one shop room detailed in schedule of the plaint. Md. Qurban Hussain Hawari (Plaintiff No. 1), Sajjad Hussain Hawari and Md. Shamshul Hoda Plaintiff Nos. 2 and 3 respectively (both sons of Late Talib Hussain Hawari), have filed the suit against the defendant No. 1 for evicting him from the suit premises after determination of the lease. Since Talib Hussain Hawari was not alive at the time of filing of the Suit, his two sons i.e. Plaintiff Nos. 2 and 3 had filed the Suit with Plaintiff No. 1.

Md. Khalil Hussain Hawari, one of the lesser was arrayed as defendant No. 2 in the suit. After determination of the lease i.e. on 28.02.2001, though there was option to renew the lease for a further period, but it was not renewed and the defendant No. 1 had not taken any step in that regard. Since lease was not renewed for further period from 01.03.2001, the defendant No. 1 incurred a liability of being evicted on the ground of expiry of period of lease as indicated under Section 11(1)(e) read with Section 14 of the Act.

2. The defendant No. 1 was served with a notice dated 20.06.2001 by which he was directed to vacate and deliver vacant possession of the Suit premises within two weeks from the date of receipt of the notice, but he did not comply the direction even after receipt of said notice. Despite service of notice and after expiry of period of lease when the defendant No. 1 has not vacated the suit premises, cause of action arose on 28.02.2001 and on the date on which the notice was served and on subsequent dates.

4 The defendant No. 1 appeared in the suit and filed written statement stating therein that the suit filed by the plaintiffs is false, frivolous, vexatious, not maintainable, barred by principles of waiver, estoppels and acquiescence and therefore, liable to be dismissed. No cause of action ever arose for filing the suit.

It was also contended that the deed of lease is entirely illegal and invalid under the law and the same is not having legal force after 28.02.2001. In view of Section 116 of the Transfer of Property Act, he has become month to month tenant under the said premises and the assent to continue in occupation of the suit premises was given by the defendant No. 2 - Md. Khalil Hussain Hawari who is one of the co-owner. Further averment has been made that he has started paying regular rent to defendant No. 2 and for that rent receipts have also been granted in his favour. As a matter of fact, plaintiffs were having tendency to increase the rent after interval of every two years. In that context, the defendant No. 1 was asked to pay rent to the extent of Rs. 1,000/- per month which was too high and excessive to which the defendant did not agree and, -therefore, suit has been filed on false and frivolous grounds without having any cause of action. The defendant No. 1 has given parawise reply in his written statement.

4. The defendant No. 2 has also filed his written statement stating therein that the suit for evicting defendant No. 1 from the suit premises has been filed without intimation to all taking concurrence from him. The plaintiffs were aware with the facts that the defendant No. 2 has been realising rent from the defendant No. 1 by mutual arrangement and understanding whereas plaintiffs are collecting rent from other tenant inducted in the suit building. In view of the family arrangement arrived at between co-owners, the defendant No. 2 has been realising rent from defendant No. 1 for the suit premises whereas the plaintiffs have been realising rent from other tenants.

It is further contended that the tenancy was joint one and the plaintiffs being co-owner, without having consent from defendant No. 2, another co-owner, has no locus standi to institute the suit against the defendant No. 2 for his ejectment from the premises. It is false to say that he has become antagonistic to the plaintiff and he has supported contention of the defendant No. 1 that after 28.02.2001, defendant No. 1 has become month to month tenant and he has been regularly paying rent to him.

5. On the basis of pleadings, the learned Additional Munsif - IIIrd has framed following issues for determination of the suit:--

(1) Is the suit maintainable in its present form?

(2) Whether plaintiffs have valid cause of action for the suit?

(3) Whether the registered deed of lease dated 31.10.85 is legal and valid?

(4) Whether defendant No. 1 is liable for eviction from the suit property on the ground of expiry of lease?

(5) Whether acceptance of rent by defendant No. 2 from defendant No. 1 without consent of the other landlord after expiry of the period of lease will make the defendant No. 7 a month to month tenant by holding over?

(6) To what relief/reliefs plaintiffs are entitled for?

The plaintiffs as well as defendants, in support of their respective claims, have adduced evidences and produced documents. At the conclusion of trial, learned Additional Munsif - III, Ranchi has decreed the suit in favour of the plaintiffs and directed the defendant No. 1 to vacate and handover the vacant possession of the suit premises to the plaintiffs and hence this revision.

6. The learned counsel for the petitioner has assailed the impugned judgment and decree mainly on the ground that the suit by some of the co-owners is not maintainable. After determination of the lease, the petitioner on account of Holding over, has become month-to-month tenant in view of Section 116 of the Transfer of Property Act, 1992 and he is not liable to be evicted there from with the help of provisions contained under Section 11(1)(e) of the Act. The petitioner has been continuing his possession with the assent of defendant No. 2, is not denied rather the defendant No. 2 has come forward by filing written statement and also by deposing before the Court that he has been realising rent from defendant No. 1 after determination of lease. The defendant No. 2 has also stated about the family arrangement under which the plaintiffs are realising rent from other tenants whereas he has been realising rent from defendant No. 1 and this fact has not been disputed or challenged by the plaintiffs. The other tenants who have been paying rent to the plaintiffs, have also corroborated this fact in their deposition.

The learned counsel has further argued that the learned Munsif has wrongly appreciated ratio decided in the case of Birendra Kumar Singh v. Most. Kalyani Bhanjo and others reported in MANU/BH/1235/1999 : 1992 (2) PLJR 319. The learned Additional Munsif has clubbed the issue Nos. 3, 4 and 5 and decided the same under para-8 of the Judgment. The discussions and reasoning made therein are not tenable.

Issue No. 5 has been framed in a negative form and therefore, the Court has continued his discussions on the same line for coming to a conclusion. It was vehemently argued, if some of the co-owners are entitled to file a suit for eviction of a tenant on the ground of determination of lease, then why another co-owner shall be debarred from giving assent to such tenant after expiry of the lease and also from realising rent. This issue has neither been framed nor decided by the learned Munsif.

In view of the above, the impugned Judgment and Decree is liable to be set aside.

7. Learned Counsel appearing for the respondent Nos. 1 to 3/plaintiffs have precisely replied by saying that lease deed (Ext.-4) has been admitted and according to that lease, the tenancy was terminated on account of determination of lease on 28.02.2001 and it was not renewed for further period. Prior to determination of the lease, the defendant No. 1 did not make any request to renew lease though renewal clause was there in the lease. Not only that, the defendant No. 1 did not tender rent after expiry of period of lease to the plaintiffs or to the defendant No. 2 either in the month of March or April or May. This conduct of the defendant No. 1 clearly goes to show that he was not willing to continue in possession of the suit premises. Thereafter, legal notice dated 20.06.2001 (Ext. - 1) was served directing him to vacate the suit premises on account of determination of lease.

He has further argued that the defendant No. 2, who happens to be brother of plaintiff No. 1, has become antagonistic and with hostile attitude, he has started supporting the defendant No. 1. At no point of time any family arrangement was made between the brothers under which they were authorised to realise rent from individual and particular tenant. The defendant No. 2, in his deposition in Court, has failed to give any date on which such family arrangement was made. On the other hand, defendant No. 1 has admitted that he was paying rent to father of plaintiff Nos. 2 and 3 during his life time and after that he had been paying rent to plaintiff No. 1.

It was argued, even assuming it to be correct, that rent was being paid to the defendant No. 2 by defendant No. 1, the plaintiffs are entitled to file a suit for evicting defendant No. 1 on the ground of determination of lease, since he had incurred liability to be evicted there from in view of Section 11(1)(e) of the Act.

The learned counsel has referred Judgment in the case of Digambar Narain Chaudhary v. Commissioner of Tirhut Division and others referred in MANU/BH/0001/1959 : AIR 1959 Patna 1 (Vol. 46, C.1)(1) (FB), He has further referred the Judgment of Full Bench of the Patna High Court in the case of Sharfuddin and others v. Bibi Khatija and another reported in MANU/BH/0006/1988 : AIR 1988 Patna 58 (FB) and submitted that the questions raised by learned counsel for the petitioner have well been answered in these Judgments. The learned Additional Munsif-III has rightly decreed the suit which needs no interference.

8. I have gone through the lower court record, evidence adduced, documents produced and the impugned Judgment. After hearing counsel appearing for both sides and taking notice of admitted pleadings and evidence, I feel that two questions i.e.

(1) Whether suit for eviction brought by some of the co-owners for ejectment of the tenant is maintainable?

(2) Whether the suit filed by such co-owners for evicting the tenant who has clearly incurred the liability of eviction under the Act but continuing his possession with the collusion or consent by other co-owner can be decreed?

Before declaring independent opinion, it is desirable to refer Judgment reported in MANU/BH/0006/1988 : AIR 1988 Patna 58 (FB) (Supra), which was decided by majority view. In the very first paragraph, the reference of case of Smt. Kanta Goel v. B.P. Pathak. MANU/SC/0348/1977 : AIR 1977 SC 1599 and case of Sri Ram Pasricha v. Jagannath, MANU/SC/0473/1976 : AIR 1976 SC 2335, have been made in which it was observed that the law had been put beyond all doubt that the absence of one of the other co-owners on the record does not in the least disentitle the plaintiff co-owner from suing and succeeding in the proceeding for the eviction of a tenant. They further observed that

"We are not called upon to consider the piquant situation that might arise if some of the co-owners wanted the tenant to continue contrary to the relief claimed by the evicting co-owner."
That piquant situation had arisen in the case of Sharfuddin and others (Supra) and more or less the same situation is also appearing in the case at hand.

9. The admitted fact in the case at hand is that lease was determined on 28.02.2001 and it was not renewed by the plaintiffs for further period and they had not given their assent to defendant No. 1 to continue his possession over the suit premises either by their conduct or in writing. When he did not vacate the premises after determination of the lease he was served with a notice to vacate the same. In the prevailing circumstances, one of the lesser i.e. defendant No. 2 had given his assent to the defendant No. 1 to continue his possession over the suit premises and he has started realising rent from him. Md. Quurban Hussain Hawaii (Plaintiff No. 1), Talib Hussain Hawari (father of plaintiff Nos. 2 and 3) and Khalil Hussain Hawari (proforma defendant) had executed the lease deed in favour of defendant No. 1 for the suit premises for creating a tenancy for fifteen years which ended on 28.02.2001. Therefore, the contract for the tenancy was one and it was by-lateral contract between the parties. One of the co-owners i.e. the defendant No. 2 has no right to make the contract unilateral by splitting interest of the co-owners by saying that under family arrangement he has been realising rent from defendant No. 1 and he has given consent to defendant No. J to continue his possession as a tenant on month to month. This situation has been discussed by Their Lordship in paragraph-14 of the Judgment in the case of Sharfuddin and others (Supra) and Their Lordships have also relied on the Judgment reported in the MANU/WB/0084/1967 : AIR 1967 Cal 334.

In the case of Sharfuddin and others (Supra), the fact was that one of the co-owners had been realising rent of his share whereas other co-owners were not paid remaining amount of rent and that is why the suit was brought by those co-owners under Section 11(1)(d) on account of default in making payment of rent for two consecutive months. The question was raised that decree cannot be passed in favour of other co-owners since another co-owner had given consent to the tenant to continue his possession over the tenanted premises. To appreciate the situation prevailing in the present case, I feel it desirable to quote paragraphs 18, 18A, 19, 24 and 25 of the said Judgment, which reads as under:--

"18. Yet another limb of the submission in this context raised by Mr. Chunni Lal is equally tenuous. He has contended that if one co-owner has been paid his share of the rent due no eviction decree can be passed under the Act. It was sought to be submitted that if the relationship of landlord and tenant may be deemed to subsist with even one of the many owners (merely because of the payment of his share of the rent to such co-owner) it would continue to subsist qua all the remaining co-owner and no eviction decree was then possible. It was submitted that perhaps in that event a joint decree for possession in favour of all the co-owners may be passed but an eviction decree from the whole of the premises at the instance of one co-owner was an impossibility.

18A. Though learned counsel for the appellant may be complimented for his ingenuity, the argument nevertheless remains fallacious and untenable. The submission that payment to one co-owner alone of his share of the rent would bar a decree of eviction under S. 11(1)(d) appears, on the face of it, to be first illogical and otherwise capable of leading to an anomalous and mischievous results. If it were to be so held, then in premises which has co-owners the tenant may choose to tender one-tenth of the rent to one of the co-owners and deprive the other nine altogether and leaving them with no remedy worth the name under the Act Equally on these premises one co-owner out of twenty may collude with the tenant and thus fraudulently oust the others not only from the payment of rent but also from the right of eviction expressly provided under the Act Learned counsel for the appellant had rightly conceded that he could cite no authority for this novel proposition.

19. 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 frame work of the Rent Act it is impermissible and illogical to travel beyond the clear and detailed statutory provision of 5.11 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. Therefore, the judgments sought to be relied upon by learned counsel for the appellant in this context, namely, (i) MANU/PR/0046/1887 : (1888) ILR 10 All 166 (PC); (Zain-ul-Abdin Khan v. Muhammad Asghar Ali Khan), (ii) (1908) ILR 35 Cal 807 (Gopal Ram Mohuri v. Dhakeshwar Pershad Narain Singh), (iii) MANU/PR/0056/1933 : AIR 1934 PC 58; (Baraoni Coal Concern v. Gokulananda), (iv) MANU/BH/0129/1942 : AIR 1942 Pat 391; (Raj Kishore Prasad Narain Singh v. Mojibul Rahman) and (v) MANU/WB/0089/1979 : AIR 1979 Cal 367 (Dr. Amar Prasad Gupta v. Arun Kumar Shaw) have not the least relevance and are entirely wide of the mark.

24. To my mind, it appears that once the final Court has held categorically that one co-owner can singly maintain a suit for eviction under the rent law, it inevitably follows that he can maintain it successfully. It is difficult, if not illogical, to draw any finical distinction that though the single co-owner can maintain the suit, yet in the event of one of the co-owners colluding with the tenant or desiring his continuance the same would raise a legal bar for evicting the tenant who undoubtedly has incurred the liability of such eviction under the rent law. If a single co-owner can otherwise maintain a suit for eviction against the tenant, then on principle there seems no reason why the same ratio would not apply in the event of one of the many co-owners colluding or siding with the tenant If the law as now settled by the Supreme Court does not even require impleading of all other co-owners as plaintiffs or defendants, it would be illogical to suggest that he can maintain the suit but get no meaningful relief.

25. To my mind collusion or consent by one of the co-owners for the continuance of a tenant who has otherwise clearly incurred the liability of eviction under the law can and should make no difference to the rights of the other co-owners to eject him from the property. Once the tenant incurs the disability of being evicted under the express, though limited, conditions provided therefor under the rent law, then the same are not to be nullified unilaterally by the collusion of one of many co-owners. A single co-owner out of ten or twenty has no veto over the other body of co-owners for the continuance of a tenant otherwise liable to eviction under the taw. Holding so, as noticed above, would not only give him a kind of veto but also a power to override and nullify the provisions of the law itself which confer the right on the landlord either as a body or singly to evict him. I do not think that the volition of a single co-owner in collusion with a defaulting tenant would warrant any such legal result."

It was held that the "co-owner is as much as an owner of the entire property as any sole owner of a property is".

10. In the case of Smt Kanta Goel (Supra), the question came up before Their Lordship whether one co-heir of the deceased/landlord could sue for eviction in absence of other co-heirs? Answering the question in categorical affirmative, Krishna Iyer, J. observed as under:--

"This Court in Sri Ram Pasrich MANU/SC/0473/1976 : (1976) 4 SCC 184 : AIR 1976 SC 2335 clarified that a co-owner is much an owner of the entire property as any sole owner of the property is : "Jurisprudentially, it is not correct to say that a co-owner of property is not its owner. He owns every part of the composite property along with others and it cannot be said that he is only a part owner or a fractional owner of the property..... It is, therefore, not possible to accept the submission that the plaintiff who is admittedly the landlord and co-owner of the premises is not the owner of the premises within the meaning of S. 13(1)(f). It is not necessary to establish that the plaintiff is the only owner of the property for the purpose of S. 13(1)(f) as long as he is a co-owner of the property, being at the same time acknowledged landlord of the defendants". That case also was one for eviction under the rent control law of Bengal. The law having been thus put beyond doubt, the contention that the absence of the other co-owners on record disentitled the first respondent from-suing for eviction fails. We are not called upon to consider the piquant situation that might arise if some of the co-owners wanted the tenant to continue contrary to the relief claimed by the evicting co-owner."
11. In view of the observations referred to above in the cited Judgments and also considering the view taken in the case of Birendra Kumar Singh (Supra), there is no doubt that some of the co-owners have every right to file a suit for evicting a tenant who has incurred liability to be evicted under the Act. Therefore, the suit brought by the plaintiffs has rightly been held maintainable by learned Additional Munsif and that needs no interference.

12. Now the question arises whether the assent given by one of the co-owners i.e. defendant No. 2 to defendant No. 1 to continue his possession as month to month tenant can be accepted as an assent of the landlord in the eye of law?

Again I would like to refer the Judgment of Sharfuddin (Supra) in which it was discussed and held that a contract which is one and bilateral cannot be splitted unilaterally by one of the co-owners. It is reiterated that lease for a fixed period of tenancy was granted by the plaintiff No. 1 - father of the plaintiff Nos. 2 and 3 and defendant No. 2 in favour of defendant No. 1 and was one and bilateral contract which cannot be splitted whimsically by unilateral contract i.e. by so called assent given by the defendant No. 2.

So far application of Section 116 of the Transfer of Property Act is concerned, in the case of Bhawanji Lakhamshi and others v. Himatlal Jamnadas Dani and others reported in MANU/SC/0703/1971 : (1972) 1 SCC 388: 1972 SC 819, it was held as under:--

(i) The act of holding over after the expiration of the term does not create a tenancy of any kind. If a tenant remains in possession after the determination of the lease, the common law rule is that he is a tenant on sufferance. A distinction should be drawn between a tenant continuing in possession after the determination of the term with the consent of the landlord and a tenant doing so without his consent. The former is a tenant at sufferance in English Law and the latter a tenant holding over or a tenant at will. In view of the concluding words of Section 116 of the Transfer of Property Act, a lessee holding over is in a better position than a tenant at will. The assent of the landlord to the continuance of possession after the determination of the tenancy will create a new tenancy. What the section contemplates is that on one side there should be an offer of taking a new lease evidenced by the lessee or sub-lessee remaining in possession of the property after his term was over and on the other side there must be a definite consent to the continuance of possession by the landlord expressed by acceptance of rent or otherwise.

(ii) Mere acceptance of amounts equivalent to rent by a landlord from a tenant in possession after a lease had been determined, either by efflux of time or by notice to quit, and who enjoys statutory immunity from eviction except on defined ground as in the Act, cannot be regarded as evidence of a new agreement of tenancy."

Therefore, the view taken by Their Lordship is very clear that consent of the landlord must be a definite allowing the tenant to continue his possession over the tenanted premises. The lease in favour of defendant No. 1 for a fixed period of fifteen years was created by three brothers (co-owners) and it was a bilateral contract between the parties which could not be splitted unilaterally by one co-owner and therefore the assent so given by defendant No. 2 is no assent in favour of defendant no 1 who had already incurred liability to be evicted under section 11(1)(e) of the Act.

The unilateral contract on the basis of consent given by defendant No. 2 shall not create a new tenancy and suit brought by plaintiff - co-owners is liable to be decreed if the lessee has incurred liability to be evicted from the tenanted premises on determination of lease. The learned Munsif has rightly addressed all the issues and as such the impugned Judgment needs no interference.
In the result, this revision application stands dismissed. The Judgment and decree passed by learned Additional Munsif in connection with Title Eviction Suit No. 54/2001 is hereby upheld.


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