N.N. Mithal, J.
1. This is tenant's second appeal, Courts below having rendered non-concurrent judgments. At the stage of admission itself parties have exchanged counter and rejoinder affidavits and it was urged that since the only question involved in the appeal was about the validity of the notice the same may be disposed of at this very stage. In view of this the parties were heard on merits as well.
2. To have a hang of the dispute between the parties it will be better to comprehend the relevant facts. The plaintiff claiming to be the owner of an open piece of land claimed that the defendant was his tenant. A notice under Section 106 of the Transfer of Property Act was served whereupon the suit was filed for his eviction. The suit was resisted by the tenant on several grounds but the main ground was that the defendant was continuing as tenant from the time of the plaintiffs father. It was also contended that Keshav Dev and Jagannath were the real owners of the property and since all the heirs of the two had not joined in serving the notice, the plaintiff alone had no right to file the suit or to terminate the tenancy. In this connection it was also alleged that the widow, two daughters and one other son of Keshav Dev have not been joined in the suit and it was, therefore, defective on that ground also.
3. It is not disputed that the property was not let out by the plaintiff to the tenant. His tenancy was continuing from before it devolved on the plaintiff. The plaintiffs grandfather Angan Lal had two sons, Jagannath and Keshav Dev. Jagannath left behind him one son and two daughters. He died near about 1968 while Keshav Dev died in 1960-61 leaving behind him two sons and two daughters besides his widow. According to the plaintiff there had been a family settlement between his father and uncle and subsequently there was yet another settlement between himself and his brother, sister and mother after 1960 which was, however, not in writing. Admittedly, the defendant had been paying rent to the plaintiff ever since 1968. The trial Court dismissed the plaintiffs suit holding that he alone was neither competent to file the suit nor to validly terminate the tenancy. This decision has been reversed by the lower appellate Court relying upon a decision of this Court in Rand Nath v. State of U. P., 1984 All Ren Cas 642 and two decisions of the Supreme Court in Sri Ram Pasriha v. Jagannath, AIR 1976 SC 2335 and Smt Kanta Goel v. B. P. Pathak, AIR 1977 SC 1599.
4. Learned counsel for the appellant relied heavily on a number of decisions of this Court in support of his contention that only one of the co-owners or co-lessors was not competent to terminate the tenancy. In Abdul Shami v. Mohd Ashfaq, 1979 UP Ren CC (Supp) 672, it was held, that although one of the landlords may realise the rent for the collective body of landlords, but in such a situation the landlord realising the rent cannot be said to be the sole landlord of the premises. The realisation of rent will be by or under the authority of all concerned. In such a situation the fact that the plaintiff was realising the rent would not by itself be sufficient to hold that he was the sole landlord of the premises in question as the term lessor includes the plural. It was also held that one lessor alone can serve a notice terminating the tenancy as an agent of the other co-lessors for which express or implied authority must exist as on the date of the notice. In that case initially the father of the plaintiff was the landlord and on his death he was survived by two sons and four daughters. The suit was filed by one of the sons but in the absence of proof that he was doing so as an agent for the other co-lessors the notice was held to be invalid.
5. In Devi Charan v. 3rd A.D. J., 1980 All Ren Cas 381, Hon'ble R. R. Rastogi, J., was dealing with a case where the joint owners of the property consisting of two adjoining shops had partitioned them and the disputed shop fell to the share of the plaintiff and he alone became its exclusive landlord. Even then it was held that the release application moved by him alone was not maintainable unless there was proof of a fresh contract of tenancy. Even the tenant's agreement to apportion the rent was held to be insufficient to cure the defect. In that case two adjoining shops were let out to the same tenant in which the heirs of the original lessor had 3/8th and 5/8th shares respectively. On partition one of the shops fell exclusively to plaintiffs share. The tenant also agreed to apportion the rent and started paying rent separately to the formerowners. It was, however, held that the tenancy being common in respect of the two shops the same could not be got split by mere fact of partition of ownership rights without there being a fresh contract of tenancy. The old tenancy in respect of the two shops remained intact despite split in ownership and the application was held to be not maintainable in the absence of the other co-owners.
6. In Brij Mohan Das Goyal v. Smt. Nidhi Bai, (1977) 3 All LR 457 : (AIR 1978 NOC 2), Hon'ble M. P. Mehrotra, J. was dealing with a case in which the plaintiff being Karta of the joint family terminated the tenancy. The tenant pleaded that the accommodation had been let out by the plaintiffs father and on his death joint family had disrupted and all the members thereof became co-owners. Since the plaintiff represented only a section of the co-owners the suit was not maintainable. Defendant's plea was upheld Almost to the same effect is the decision in Mahboob Ullah v. Jwala Pd., AIR 1974 All 413.
7. On the other hand learned counsel for the plaintiff-respondent has contended that in view of the decisions in Ram Pasricha and Kanta God's cases (supra) as laid down by the Supreme Court the law is that even a co-lessor is competent to maintain a suit against the tenant. In Ram Pasricha's case it was held:
'A co-owner isas much owner of the entire property as any sole owner of the property is jurisprudentially, it is not correct tosay 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.'
The Court further observed :
'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.'
8. Ram Pasricha's case was cited with approval in a subsequent decision of the Supreme Court in the case of Kanta Goel's. Before considering that decision any further it may be pointed out that the parties there had mutually agreed for readjustment of their rights and the decision by the Supreme Court was given almost on the basis of their consent and admission of facts. One Saraswati Das Was the owner of the two storied house and a portion of first floor of it was let out by him to the appellant. On his death he left behind three sons and a daughter. Only respondent No. 1 initiated proceedings for eviction of the tenant on the ground that he was being asked to vacate the Govt. accommodation. It was urged that his father had left a Will under which he and his brother became exclusive owners of the house and by mutual partition amongst them the first floor portion of the premises had come to his exclusive share. The application was resisted by the tenant and it was pleaded that in the absence of other co-owners the same was not maintainable. Despite this objection the Rent Controller overruled it and the lenant appealed to the High Court. The High Court permitted other co-owners to be impleaded as parties. In the Supreme Court also the same question was agitated but the plea was repelled thus:
'Equally without force, in our view, is the plea that one co-lessor cannot sue for eviction even if the other co-lessors have no objection.'
The Supreme Court thereafter adverted to the definition of the word 'landlord' in the Act and observed :
'There must be landlord who collects rent and a tenant who pays it to the one whom he recognises as landlord. The complications of estoppel or even the concept of the Transfer of Property Act need not necessarily or inflexibility be imported into the proceeoings under the Rent Control Law tried by Special Tribunal under a special statute.' (Emphasis provided)
'In this case, the rent was being paid to the late Dass who had let out to the appellant, on the death of the former, the rent was being paid to the first respondent who signed the receipt in his name and added that it was on behalf of the estate of the deceased Dass. At a later stage the rent was being paid to and the receipt issued by the first respondent in his own name. Not that the little change made in the later receipts makes much of a difference, but the fact remains that the tenant in this case had been paying the rent to the first respondent. Therefore, the latter fell within the definition of 'landlord', for the purposes of the Act We are not impressed with the investigation into the law of real property and estoppel between landlord and tenant, Sri Nariman invited us to make. A fair understanding of the relationship between the parties leaves little room for doubt that the appellant was the tenant of the premises. The first respondent together with the other respondents, constituted the body of landlord and by consent, implicit or otherwise of the plurality of landlords, one of them representing them ail, was collecting rent. In short he functioned, for all practical purposes as the landlord and was, therefore, entitled to institute proceedings qua landlord.' (Emphasis provided)
9. The above decision was sought to be distinguished by the learned counsel for the appellant on several grounds. It was urged that the whole premise on which the decision rests is the consent, express or implied, of the other co- lessors for launching the proceedings. It is urged that what was implicit in this finding was that the applicant landlord was acting for and on behalf of the entire body of landlords, if not with express consent atleast impliedly while collecting rent from the tenant and when launching eviction proceedings.......
It was for this reason that even one co-landlord or co-lessor was held entitled to maintain the petition. He also referred to the portion of the judgment which has been underlined by me above. A distinction has been made between regular civil proceedings and the proceeding under the Rent Control, Law tried by Special Tribunal. Learned counsel for the appellant has, therefore, urged that reliance on this decision in support of plaintiffs contention would not be proper.
10. There may be some logic in what the learned counsel has submitted It does appear that a distinction has to be made in proceedings before the Rent Controller which are guided by its own rules and procedure and a case filed on the civil side which is governed by the provisions of the Code and other Acts. The principles as underlined above cannot be totally ignored in civil suits. However, in Rang Nath v. State of U. P., (1984 All LJ 455) (supra) a learned single Judge of this Court had the occasion to deal with some of the earlier decisions of this Court as well as the two decisions of the Supreme Court, referred to above. In that case also a member of Joint Hindu Family had filed a suit for eviction of the tenant on the ground that during the life time of Siya Ram Sahu a family settlement had taken place and the petitioner had became exclusive owner of the disputed property. However, he had allowed his mother the widow of Siya Ram Sahu, to realise the rent. When the defendants fell in arrears a notice was sent by the petitioner and his mother jointly and on the tenant's failure to pay rent the suit was filed. Before the suit was filed, however, the widow of Siya Ram had also died.
11. The defence was that on the death of Siya Ram his widow was realising the rent as owner and when the petitioner began to demand rent he was asked to show evidence of his exclusive ownership. It was also alleged that other members of the petitioner's family were co-owners. It may be stated here that in that case other brothers were also impleaded as parties to the suit and they had filed their written statement denying any connection with the ownership of the house and they specifically pleaded that only the petitioner was exclusive owner thereof. In these circumstances the learned single Judge, after considering various decisions of this Court, held that the decision in 1979 Allahabad 104 and 1914 Allahabad 160, were no longer good law in view of the decision of the Supreme Court. In para 31 of the report the Court observed as under:
'There is a further circumstance in this case. The two brothers of the petitioner were made co-defendants in the suit. They filed written statement admitting that plaintiff alone was the owner of the properties in suit as a result of the family partition. Brothers of the family were parties to the suit.'
It was under the above circumstances that the Court held that the notice determining the tenancy under Section 106 of the Transfer of Property Act was a good notice.
12. A similar controversy again came up for consideration in this Court and the matter was referred to a Full Bench presided over by the then Chief Justice Sri K. Jagannath Shetty. The Full Bench was called upon to resolve the divergent views expressed in Devi Charan's case and Rangnath's case. The dispute in that case arose in a case in which joint family property belonging to.one Murlidhar and others was in the tenancy of the petitioner. There was a partition in the family by which the property in the tenancy of the petitioner fell to the share of Murlidhar Shahu and Brji Chandra Sah, northern portion going to the share of Murlidhar while the southern portion coming to the share of Brij Chandra. The tenant was called upon to pay proportionate rent to the respective owners and he agreed. Thereafter the rent was apportioned between Murlidhar and Brij Chandra and the tenant started paying the same in that proportion. Murlidhar thereafter moved an application for release of the portion falling to his share which was resisted by the tenant on the ground that the petition was incompetent in the absence of other owners. The Prescribed Authority allowed the application in respect of part of the premises but on appeal by both the parties the tenant's appeal was dismissed and the landlord's appeal was allowed and his application for release of the entire accommodation was allowed. The tenant came up in appeal mainly on the ground that in the absence of other co-owners the application was not maintainable. The Full Bench, relying upon Ram Pasricha and Kanta Goels's case held that the decision of this Court in Rang Nath's case (1984 All Ren Cas 642) laid down the correct law. It also held that the decision in Devi Charan's case (1980 All Ren Cas 381) (supra) does not lay down the correct taw.
13. The learned counsel for the appellant has, however, urged that the facts of the case before the Full Bench were absolutely different from the facts of the present case and, therefore, the principles enunciated therein cannot be applied. He also pointed out that the Full Bench has not taken into consideration the provisions of Section 13 of the General Clauses Act according to which words in singular include the plural. Thus, it was contended that the word landlord' would include its plural i.e. landlords. Where there are more than one landlord all of them together would constitute the term 'landlord' and, therefore, one of them alone was not competent to terminate the tenancy. Be that as it may, however, now in view of the decision of the Full Bench holding Devi Charan's case to be no longer good law and approving the decision in Rangnath's case the notice in this case cannot be said to be bad in law. I hold accordingly.
14. In the result the appeal tails and is therefore, dismissed. However, in the circumstances of the case I would leave the parties to fend for their own costs.