R. P. Singh, J. - (1.) -
(2.) BY means of this writ petition, the petitioners have challenged the order passed by the VII Addl. District Judge, Kanpur, dated 18-6-1987. Brief facts of the case are that respondents no. 1 and 2 filed an application under section 21 (1) (a) of the U. P. Act no. XIII of 1972 (hereinafter referred to as the Act),, for the release of premises no. 7/91-A, Tilak Nagar, Kanpur Nagar on the ground that they are the landlords and owners of the same in which the petitioners were living as tenants. Respondent no. 1 was a Medical Officer in the Indian Air Force and had retired and after his retirement, he had been living with his brother Sri Pawan Pratap Singh and his mother, but on account of differences between his wife and mother, it became impossible for him to continue to live with his mother and brother and his case is that his need for the accommodation in dispute is bonafide and genuine. The case put forward by respondent no. 2 is that he is a Wing Commander in the Indian Air Force and has not been given any official residence with the result that he alongwith his wife and two children are compelled to live in one room accommodation of the Officers Mess and that he wants to settle his family at Kanpur so that education of his children may not suffer. It was further alleged by respondents no. 1 and 2 that the accommodation in dispute alongwith other property was owned by late Raja Shyam Pratap Singh who died on 21-2-1979 leaving his widow, 3 sons and 3 daughters and late Raja Shyam Pratap Singh had executed a Will, dated 10-12-1976 in accordance with which the accommodation in dispute came to the share of respondents no. 1 and 2 and has been so recorded in the records of the Nagar Mahapalika, Kanpur and separately assessed. Respondents no. 1 and 2 thus set up their need for the accommodation being bonafide and genuine on the basis of which they filed the application for the release of the same in their favour. The tenants, who are the petitioners in the present writ petition, contested the application for release of the accommodation on the ground that the need of respondents no. 1 and 2 was not bonafide and genuine and that they have no alternative accommodation and further that greater hardship would be caused to the petitioners if the release application is allowed.
(3.) THE Prescribed Authority, after considering the evidence led by the parties, held that the need for the accommodation of respondents no. 1 and 2 are neither bonafide nor genuine and rejected the application for release, vide his order, dated 19th November, 1985 which was challenged by the respondents no. 1 and 2 by filing an appeal before the AddI. District Judge, respondent no. 3, who, on consideration of the evidence on record, held that the need of respondents no. 1 and 2 for the accommodation in dispute, was bonafide and genuine and that greater hardship would be caused to them if the application for release of the accommodation was not allowed and vide his order, dated 18-7-1987, he allowed the appeal ordering the release of the accommodation in dispute to respondents no. 1 and 2 which is subject matter of challenge in this writ petition. The learned counsel for the petitioners has contended that the application for release of the accommodation in dispute was not maintainable by respondents no. 1 and 2 as the other heirs of late Raja Shyam Pratap Singh have not joined in the application and that the Will, on the basis of which the respondents no. 1 and 2 are claiming that the accommodation in dispute fell to their share, is not genuine Will as it has not been duly proved and hence the application was liable to be rejected. The learned counsel for the respondents contended that on the basis of the Will executed by late Raja Shyam Pratap Singh, all his legal heirs including respondents no. 1 and 2 filed an application for mutation before the Nagar Mahapalika, Kanpur. A copy of the application for mutation duly signed by all the heirs of late Raja Shyam Pratap Singh has been annexed as Annexure-1 to the counter-affidavit and this mutation application was allowed by the Nagar Mahapalika on the basis of which separate portions of the property were entered in the names of respective heirs separately and was separately assessed with effect from 1-4-1983 and the accommodation in dispute has been shown to have been entered in the names of respondents no. 1 and 2 exclusively and separately assessed by the Nagar Mahapalika. It is relevant to note that rent of the accommodation in dispute was paid by the petitioners and rent receipts for the same were issued by the contesting respondents for the months of July to November, 1983 ; thus the petitioners tendered rent of the accommodation "in dispute to the contesting respondents alone. The word 'landlord' has been defined in the Act as a person to whom its rent is payable and thus the petitioners' own conduct of tendering rent of the accommodation in dispute to the contesting respondents shows that the contesting respondents had been treated as landlords by the petitioners. The present application for release has been signed by respondents no. 1 and 2 with the allegations that the accommodation in dispute fell to their share in the family partition on the basis of the Will and was as such separately recorded in their names in the records of the Nagar Mahapalika, Kanpur. A similar question was raised in the case of Girraj v. Ill Additional District Judge, Bareilly, 1979 ARC 422, where the application under section 21 of the Act was dismissed by the learned District Judge on the ground that it was not signed by all the co-landlords. It was held in that case that the rule expressly permits the signing of the application under section 21 of the Act by one or more of the co-landlords and that it would be sufficient compliance if the non-petitioning landlords were only arrayed as proforma respondents. In Yogesh Saran v. Jyoti Prasad, 1978 ARC 408, it was held that- " To me it appears that the omission to sign the application by all the landlords is of a formal character and an application made by the landlord cannot be rejected on this basis. It is so because for getting a premises released under section 21 it is not necessary that the landlord must set up the needs of all the landlords and allege that the premises is needed by all of them. It can be for the need of only one landlord. " Then in the Full Bench case of Gopal Das v. 1st Addl. District Judge, Varanasi, 1987 AWC 538, it was held that- " In view of these decisions, there can, therefore, be little doubt as to the maintainability of the action for eviction brought by one co-owner without impleading the other co-owners." It was further observed that- " However, we may point out that the requirement of Rule 15 (2) that an application for release of premises owned by co-owners should be signed by all co-owners would be invalid. One co-owner is competent to maintain an action for eviction of the tenant of the entire premises, since he can be considered as a landlord within the meaning of section 3 (j) of the Act One co-owner alone would be competent to sign such an application. " In Ram Parsicha v. Jagannath, reported in AIR 1976 SC 2335, it was observed at page 2339 as follows :- " Jurisprudentially it is not correct to say that a co-owner of a property is not its owner, he owns every part of the composite property alongwith other and it cannot be said that he is only a part-owner or a fractional owner of the property. The position will change only when partition takes place. 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 section 13 (1) (f) as long as he is a co-owner of the property being at the same time the acknowledged landlord of the defendants." ;