- (1.) O. P. Garg, J. Originally late Ram Swaroop Agarwal was the tenant in premises No. 476 (old No. 364) Badshahi Mandi, Allahabad. After his death in the year 1980, his son Vinay Kumar Agarwal, the present petitioner inherited the tenancy rights. Gopal Chandra Bhattacharya and others claiming themselves to be the owner/landlords served a notice dated 19-6-1995 by registered post on the petitioner Vinay Kumar Agarwal requiring him to clear the arrears of rent for the period May, 1980 onwards and terminating his tenancy. The notice was duly served on the petitioner and he had in fact sent the reply thereto asserting that the arrears of rent after statutory deductions in the form of taxes etc. have already been deposited in Court in proceedings under Section 30 of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (Act No. XIII of 1972) (hereinafter referred to as 'the Act' ). It was maintained by the petitioner that since no arrears of rent were due to be paid, the question of default in payment of rent on his part does not arise. Gopal Chandra Bhattacharya and others filed SCC suit No. 104 of 1995 alleging that the petitioner was tenant at the rate of Rs. 30 per month exclusive of house, water tax and electricity charges; that the defendant-tenant has not paid the arrears of rent as claimed in the composite notice of demand and to quit dated 19-6-1995. On the ground that the tenant has committed default in payment of arrears of rent within the meaning of Section 20 (2) (a) of the Act, his eviction was sought besides claiming one year's rent amounting to Rs. 350 with pendente lite and future mesne profits. After due contest, the suit was dismissed by the trial Court on 8-5-2000. Aggrieved, the landlords preferred revision application No. 671 of 2000 under Section 25 of the Provincial Small Causes Courts Act which has been allowed by the impugned order dated 7-12-2000 a copy of which is Annexure 1 to the writ petition. The decree for possession of the tenanted accommodation after ejectment of the petitioner and for recovery of arrears of rent amounting to Rs. 360 pendente lite and future mesne means profit at the rate of Rs. 30 per month was passed by the revisional Court. It is in these circumstances that the present writ petition has come to be filed by the defendant tenant under Article 226 of the Constitution of India with the prayer that the decree passed by the revisional Court be quashed.
(2.) COUNTER and rejoinder-affidavits have been exchanged. Heard Sri Yogesh Agarwal, learned Counsel for the petitioner tenant and Sri Ratnakar Bharti appearing on behalf of the respondent-landlords. Sri Yogesh Agarwal, learned Counsel for the petitioner urged that the notice of demand and to quit was illegal, in as much as, it was not sent for and on behalf of the entire body of the landlord's or on their instructions; that since all the landlords did not join in instituting the suit for eviction against the petitioner, it is bad in law and therefore, could not be maintained. It was also urged that the tenanted portion was not properly identifiable as it has been shown as part of house Nos. 476 and 477 Badshahi Mandi, Allahabad while, in fact, the petitioner is tenant of house No. 476. Sri Yogesh Agarwal criticized the findings and conclusion arrived at by the revisional Court with regard to the default on the part of the petitioner in payment of arrears of rent for a period more than four months. The jurisdiction of the revisional Court to pass a decree for ejectment, arrears of rent and mesne profit was also challenged on the ground that it was not competent to re-appraise the evidence on record with a view to set at naught the findings of fact recorded by the trial Court. In substance the argument of Sri Yogesh Agarwal was that if the revisional Court found that the trial Court has erred in not properly recording the finding with regard to the commission of default in payment of arrears of rent, the proper course for him was to remand the case for decision afresh by the trial Court. All these submissions have been repelled by Sri Ratnakar Bharti with equal vehemence.
(3.) THE crucial questions which have emerged for determination by this Court in the light of the submissions made by learned Counsel for the parties are : (1) Whether the tenanted accommodation is identifiable and has been properly described in the plaint? (2) Whether the suit for ejectment is not maintainable as the entire body of the landlords has not joined in serving the notice and instituting the plaint? and (3) Whether in the circumstances of the case, the petitioner may be labelled as a defaulter in payment of arrears of rent within the meaning of Section 20 (2) (a) of the Act? THE question of identity of the tenanted accommodation is beyond doubt. THE father of the petitioner was admittedly a tenant of premises No. 476 Badshahi Mandi, Allahabad. After his death the petitioner has become the tenant and continues to occupy the same premises which were in occupation of his father. In the plaint of suit No. 104 of 1996, a copy of which is Annexure 2 to the writ petition, the description of the accommodation from which dispossession of the petitioner is sought has been given as follow : "house No. 476, of which eastern portion is known as part of house No. 476 and western portion is known as portion of house No. 477 Badshahi Mandi, Allahabad. " On the strength of this description, Sri Yogesh Agarwal point out that the tenanted house which was originally numbered as 476 has now been divided into two portions of house No. 476 and 477 and the identity of the original tenanted accommodation is lost. Sri Agarwal appears to have entertained some confusion on the point on account of introduction of house No. 477. THE mist stands cleared by the various averments made in paragraph 11 of the counter-affidavit filed by Gopal Chandra Bhattacharya. Since the details given in paragraph 11 furnish a complete answer to the submission of Sri Yogesh Agarwal, it would be proper to quote, in extenso, the averments and clarifications made in paragraph 11 of the counter-affidavit which read as follows : "11. . . . . . . . . . . . . It is to be stated that the petitioner originally was a tenant of only House No. 476. He still is a tenant only of the same accommodation which was given to him under his tenancy and there is no change in the same. However, in the plaint the number of the house which has been in the tenancy of the petitioner was described as containing eastern portion of house No. 476 and western portion of house No. 477. It is only for this reason that initially there were 2 houses adjacent to each other, both belonging to the plaintiffs numbers 476 and 477. In a partition amongst the plaintiffs both the houses were divided. Instead of dividing the houses according to their numbers the dividing line was drawn longitudinally. This longitudinal division resulted half portion of house No. 476 being included in house No. 477 and half portion of house No. 477 being included in house No. 476. THE longitudinal division only could be carried out in house No. 477 and the dividing line could not be extended to house No. 476 as the same was in the occupation and tenancy of the petitioner. Thus though the premises which has been in the tenancy and occupation of the petitioner after the partition theoretically included a portion of house No. 477, but due to non-division remained as it was. It was for this reason that in the description of the premises in the plaint it had been merited that the relief of possession was being claimed with regard to the premises which included eastern portion of house No. 476. That description, however, is only for the reason that after the partition the numbers of the houses though remained the same, but portions of both the houses were exchanged inter se. This change, however did not alter the petitioner's accommodation and he remained in occupation and tenancy of the original unpartitioned house No. 476. THE allegation that the accommodation in the tenancy and occupation of the petitioner suit was not identifiable the suit could not have been decreed is wholly incorrect. . . " In para 10 of the written statement (Annexure 3 to the petition), the petitioner himself has admitted that in spite of partition between the co-owner/landlords, the tenanted portion which was let out to his father remains unaffected and he continues to be in the occupation of the original accommodation. THE fact, thus remains that the petitioner continuous to be the tenant of house. No. 476 right form the time of his father and there has taken place on change, whatsoever, in the tenanted accommodation. It was by way of abundant precaution that the tenanted portion was described in the plaint with all specificity. THE dispute about the identity of the tenanted accommodation is uncalled for. Now let us examine the second point with regard to the maintainability of the suit for ejectment against the petitioner. Sri Yogesh Agarwal, learned Counsel for the petitioner urged that the notice of demand and to quit is bad in law as it was not on behalf of all the co-owners/landlords. For the same reason it was also urged that the suit for ejectment is not maintainable as the entire body of the landlords has not joined in filing the suit. To fortify the above legal position, Sri Yogesh Agarwal placed reliance on the decision of this Court in Laiq Ahmad and another v. Smt. Surjo and others, 1978 (4) ALR 96. In that case, it was found that there were more than one landlord and since the suit for eviction, arrears of rent and mesne profit was filed on behalf of one landlord, only, it was not maintainable. Reliance was also placed an another decision of this Court in Abdul Sami v. Mohd. Ashfaq and others, 1978 NOC 3 (Allahabad ). In that case, it was laid down that when notice to quit is given by one co-lessor claiming himself the sole owner, there is no valid termination of lease and therefore, the suit for ejectment and arrears of rent by that co-sharer only is not maintainable. From the material available on record, it is evident that the tenanted house was under the ownership and landlordship of two real brothers Akhil Kumar Bhattacharya and Anil Kumar Bhattacharya. Both of them have died leaving behind their sons and daughters. Respondent Nos. 3 to 8 are the sons and daughters of late Akhil Bhattacharya while Respondent Nos. 9 to 11 are the son and daughters of late Anil Bhattacharya. The notice to terminate the tenancy of the petitioner was given by all the legal heirs of the deceased Akhil Kumar Bhattacharya and Anil Kumar Bhattacharya except Smt. Reena Bhattacharya and Smt. Reeta Bhattacharya daughters of late Anil Kumar Bhattacharya. They have been shown in the notice as notice Nos. 2 and 3. It is well settled proposition of law that notice to quit need not be from all the co-landlords as was held by the apex Court in S. P. Roychoudhary v. Kamla Bala Roy, AIR 1978 SC 835. Earlier divergent views were reflected in Devi Charan v. IIIrd Additional District Judge, 1980 ARC 38 and Rang Nath v. State of U. P. , 1984 (1) ARC 642 on the point. A Full Bench of this Court in Gopal Das and another v. Ist Additional District Judge, Varanasi and others, 1987 (1) ARC 281, was called upon to resolve the conflicting views expressed in the two cases. The Full Bench relying upon the decision of the apex Court in Ram Pasricha v. Jagannath, AIR 1976 SC 2335 and Kanta Goel v. B. P. Patnaik, 1988 (3) SCC 137, held that the decision of this Court in Rang Nath's case (supra), laid down the correct law that a notice served by one or more of the landlords is valid in law. Law on the point was further theashed out by this Court in Girraj Kishore v. Dr. Trilok Nath Bimal, 1988 (2) ARC 178, in which it was ruled that notice terminating the tenancy given by one of the co-owners without joining other co-owners is not defective or invalid.;