- (1.) This is a defendant's second appeal in a suit for recovery of rent and ejectment from a house. Briefly stated the case of the plaintiff was that at one time the disputed property was in possession of the Custodian. One Yudhisthar Lal purchased the house from the Custodian and later on sold it to the plaintiffs on 10th of April, 1962. At that time one Sri Habib Khan was in possession of the house in dispute as a tenant on a monthly rent of Rs. 4/-. After the death of Habib Khan, plaintiffs applied for permission under Act III of 1947, to file a suit for ejectment against Anis Khan son of Habib Khan. After obtaining permission he gave a notice to Anis Khan, determining his tenancy as required by Section 106 of the Transfer of Property Act. Thereafter the present suit was filed on the allegation that no rent had been paid since 10th of August, 1962.
(2.) Anis Khan contested the suit on the ground that he was living at Uttar Kashi and his younger brothers and mother were living in the house in dispute. He set up an agreement under which the plaintiff agreed to treat the widow and other children of Habib Khan as his tenants, and as such he had nothing to do with the tenancy. The plaintiffs took steps to implead the widow and other children of Habib Khan as defendant Nos. 2 to 6. Defendant Nos. 2 to 6 contested the suit on the ground that they offered rent to the plaintiff which they refused to accept. No permission had been obtained to file a suit for their ejectment nor was any notice under Section 106 T.P. Act served upon them and as such they were not liable to be ejected. It was contended on their behalf, that in an earlier suit No. 516 of 1962, which was dismissed and the appeal No. 155 of 1964 filed from that decision was also dismissed it had been held that defendant Nos. 2 to 6 were also the tenants of the house in dispute.
(3.) The trial Court came to the conclusion that the case set up by Anis Khan, that there was an agreement between him and the plaintiffs that he would not be the tenant and only defendant Nos. 2 to 6 would be the tenants, was not correct. Anis Khan continued to be a tenant along with defendant Nos. 2 to 6. Permission to file a suit for ejectment has been granted against Anis Khan after due service of notice upon him, and the same was not vitiated because no notice of the application to file a suit for ejectment had been given to defendant Nos. 2 to 6. The trial Court expressed the view that when defendant Nos. 2 to 6 were no parties to the proceedings for permission to file a suit for ejectment no notice could have been passed to them and as such the permission granted against Anis Khan could not be invalid. The permission was not obtained fraudulently and was not illegal. It was perfectly valid and enforceable till set aside by a competent authority. Although the notice determining the tenancy was not addressed to the entire body of tenants, the Court held that in view of the decision of the Supreme Court in the case of Kanjimanji v. The Trustees of the Port of Bombay, 1963 AIR(SC) 468 service of notice on one of the tenants was sufficient to determine the tenancy of the entire body of the tenants. He did not accept the distinction sought to be drawn by the counsel for the defendants on the ground that position of their clients was that of co-tenants and not of joint tenants, and as such the decision of the Supreme Court had no application to the facts of the present case. He therefore held that the notice was not invalid on the ground that it was not addressed to all the defendants.;