S.U.KHAN, J. - (1.) THIS is landlord's writ petition. Suit for ejectment of tenants respondent Nos. 3 and 4 has been dismissed by the Revisional Court on a technical ground. Trial Court/J.S.C.C. decreed the suit however Revisional Court mainly placing reliance upon the Full Bench Authority of Gujarat High Court reported in AIR 1973 Gujarat 113, has held that neither notice of termination of tenancy is valid if it has not been given by or on behalf of all the trustees nor suit is maintainable unless all the trustees are either plaintiffs or plaintiffs and proforma defendants. The suit (S.C.C. suit No. 226 of 1987 on the file of J.S.C.C. Varanasi) was filed by "Trust Shree Laxmi Narayan Dev through its "Custodian" Trustees Acharya Ajendra Prasad Ji, Narendra Prasad Ji and Shri Lakshmi Prasad, son of Shri Phool Shankar, resident of Vishunpur Bairiya, District Gonda (U.P.) Mukhtar Aam managing trustee trust aforesaid." The suit was decreed by J.S.C.C. Varanasi on 26.2.1991. Tenants respondents No. 3 and 4 filed revision being Rent Civil Revision No. 55 of 1991 which has been allowed by the impugned judgment and order dated 22.8.1995 by IInd Additional District Judge Varanasi. Learned A.D.J. has observed that before him only one point was argued and that was that trust was not a legal person and suit filed in its name was not maintainable and that notice of termination of tenancy given by an Advocate under instruction from and on behalf of the trust was not valid. The Full Bench Authority of Gujarat High Court, AIR 1973 Gujarat 113, has also been placed before me and learned Counsel for the tenant respondent has mainly placed reliance upon same.
(2.) IN AIR 1984 Delhi 145 (D.B.) it has been held that same principle applies regarding right to file suit for ejectment of tenant by a co-owner as well as by a co-trustees. Part of Para 16 of the aforesaid judgment is quoted below : "If A, B and C are owners of a property they have to bring a joint suit for possession. They are all necessary parties to the suit. They cannot by resolution allow some of the other co-owner to file a suit. In such a suit all the owners must be joined as parties as either plaintiff or as defendant. Usually the co-owners, who are not joined in the suit are joined as proforma defendants but it is not possible for some of the owners to file a suit without joining others as trustees are owners of the property, the same principle applies. They all have to be joined as parties of the suit". Delhi High Court following AIR 1973 Gujarat 113 (Full Bench) held that suit by some of the co-trustees was not maintainable. It is interesting to note that the same Full Bench of Gujarat High Court (consisting of same three Hon'ble Judges) which decided the authority reported in AIR 1973 Gujarat 113, decided another case on the same date i.e. 2.3.1972 holding that a suit by some of the co-owners or joint owners is not maintainable. The said judgement is reported in the same volume of AIR 1973 Gujarat at Page 131. It may safely be assumed that Full Bench of Gujarat High Court was also of the view that same principle applies with regard to right of filing suit to the co-trustees as applies to the co-owners. In Para 9 of the aforesaid Full Bench Authority concerning trust it has been held "all co- trustees must join in the suit to recover possession of the property from the tenant for their office is a joint office and they all form as it were but one collective trustee."
(3.) IN my opinion the aforesaid view of Delhi High Court is correct to the extent that same principle shall apply to the suits filed by co-owners and to the suits filed by co-trustees. However, I do not agree with the view that co-owner cannot file suit for ejectment of tenant without impleading all other co-owners either as plaintiff or as defendants. The later Full Bench Authority of Gujarat High Court (reported at Page 131) holding that suit by some of the co-owners is not maintainable has been overruled by the Supreme Court in AIR 1993 SC 1587, placing reliance upon its several earlier authorities particularly, AIR 1989 SC 758, where in it was held that "when the other co- owner did not object to the eviction one co-owner could maintain an action for eviction even in the absence of the other co-owner." Rule 15(2) of the Rules framed under U.P. Act No. 13 of 1972 provides that release application under Section 21 of the Act must be signed by all the landlords. A Full Bench Authority reported in 1987(1) ARC 281, declared the said Rule to be invalid and held that one co-owner/co-landlord can sue/apply for ejectment of tenant.;