M. Wahajuddin, J. - (1.) :-
(2.) THE plaintiffs brought a suit for arrears of rent, ejectment and also for mesne profits from the alleged date of termination of the tenancy of the defendant-respondent. The Munsif decreed the suit in to to. The first appellate court came to a finding that actually the tenancy started from the time of Ram Lakhan's father and on his death all bis heirs will be co- tenants and not joint tenants and as other heirs of Jai Gopal have not been served with a notice under section 106 of the Transfer of Property Act, nor the other heirs have been impleaded as a party, the suit for ejectment and means profits and damages must fail and it dismissed that part of the claim only upholding the arrears of rent decree. The only point that arises for determination in this second appeal preferred by the plaintiffs is whether the defendant, Ram Lakhan, is the sole tenant of the premises in suit. I may at the very out set mention that neither any joint tenancy was alleged by the plaintiffs, nor is there any allegation that defendant Ram Lakhan is a Karta of any joint Hindu family and represents the interest of others. To be brief I may say that it is neither pleaded, nor urged that it is a case of joint tenancy. What is being urged by the learned counsel for the appellants is that Ram Lakhan defendant, son of Jai Gopal, is the sole tenant of the premises. The defendant expressly pleaded that he is not the sole tenant. He also mentioned that Jai Gopal left other heirs. Such a plea in defence naturally gave rise to determination (?) notice by the courts below whether Ram Lakhan happened to be the sole tenant or he along with some other family members of Jai Gopal was only a tenant in common. The settled law concerning tenants in common is that notices have to be served upon all such tenants in common or in any case it has at least to be addressed to all of them and if that is not done, the notice will be bad and will not terminate the tenancy. Instead of referring to a number of pronouncements, it will be sufficient to refer to the case of Budh Sen v. Sheel Chandra, 1977 AWC 553. There were two earlier single Judge pronouncements of this court, namely, Smt. Vishna Wati v. Bhagwat Vithu Chouwdhry, 1969 ALJ 1131 and Smt. Shafiqa v. Maqsood Ahmad Khan, 1970 AWR 100.
(3.) THE first appellate court relied upon the case of Smt. Shafiqa (Supra) as a later pronouncement and that was criticised during arguments. But I think that the first appellate court was correct and the law concerning precedence is laid down by the Supreme Court is that if there are pronouncements of the same Court of same number of Judges taking different views, it j is the later pronouncement which has to be followed ; and the decision in the ] case of Smt. Shafiqa (Supra) is a later decision. Apart from that, It is not open to place any reliance upon the case of Smt. Vishnawati (Supra), as it already stands overruled by the aforesaid Division Bench decision of Budh Sen (Supra). In this case it has been expressly held that tenancy rights are heritable and devolve upon all the heirs of the deceased irrespective of the question as to whether some of them are in occupation of the premises. It was urged that actually this case is not governed by U. P. Act No. 13 of 1972, as at the time of the alleged termination of tenancy it was Act No. Ill of 1947 which was in force. I may, however, observe that Section 111 of the Transfer of Property Act deals with the determination of lease and various modes are given and does not say that lease necessarily comes to an end on the death of the initial lessee. Lease is an interest in immovable property and ordinarily it would devolve upon all the heirs of the deceased. It is noteworthy that the case of Smt. Shafiqa (Supra) was also governed by the old Act and yet it was held that all the heirs of the deceased tenant would succeed to the tenancy rights as tenants in common. Besides, one of the plaintiffs, Chunni LaL (PW 2) has admitted in cross-examination that defendant's father was the tenant of the shop premises in suit. No fresh contract of tenancy on the death of Jai Gopal, father of the defendant, is pleaded as such, nor is there a plea of negotiation of contract. What is being urged is that in a partition decree between the owners, the plaintiffs got this premises in suit. By that the plaintiffs will simply step into the shoes of the earlier landlord as to be entitled to same rights and liabilties as is provided under Section 108 of the Transfer of Property Act. The liability for rent will be upon all the heirs of Jai Gopal and from the date of Dakhal Nama, the plaintiffs would be entitled to realise rent from them and nothing beyond that. It was argued that when delivery of possession took place in execution of the decree of partition, Ram Lakhan endorsed that he is a tenant of the premises. That . will not confer any rights, nor will that operate to the prejudice of the other heirs of Jai Gopal. It is a well settled law that if judgment debtor is not in actual physical possession, as was the case, the decree holder gets only symbolic possession against those who are in possession under any agreement, for example lease in this case, from the judgment debtors of any decree. It is not the case of the plaintiffs that actually a fresh contract of tenancy was entered into ana the plaintiffs admitted Ram Lakhan defendant as sole tenant on certain rent afresh and Ram Lakhan entered into such express or implied contract. Besides, bis actions would not be binding upon other heirs of Jai Gopal deceased and Ram Lakhan unilaterally, without other heirs joining him, could not convert a tenancy, which was a tenancy in common, into a sole tenancy in his favour ; nor the landlord could do it, unless the earlier tenants came to any terms which is not the case. I, therefore, hold that all the heirs of Jai Gopal were tenants in common. Notice was given to only Ram Lakhan taking a wrong stand that he was a sole tenant, which is not tbe position. Notice was even not addressed to others. When that is the position, the view taken by the first appellate court is sound and in accordance with law and, therefore, for a tenancy in common notice to all the co-tenants was necessary in view of the aforesaid Division Bench of Budh Sen (Supra). When the notice under section 106 of the Transfer of Property Act is bad on that consideration, the tenancy does not stand terminated.;