JUDGMENT S.U. Khan, J.
1. In this writ petition at the time of argument no one appeared for tenant-respondent hence only learned counsel for the landlord petitioner was heard.
2. Shri Rajendra Kumar, advocate had filed caveat on behalf of respondent. On 18.11.2003 he prayed for and was granted three weeks time for filing counter-affidavit. By the same order dated 18.11.2003 it was directed that the case should be listed for admission/final disposal in the week commencing 12.1.2004. No counter-affidavit has been filed.
3. Landlord-petitioner filed SCC suit No. 6 of 1986 against tenant-respondent for ejectment from the property in dispute and recovery of arrears of rent. J.S.C.C./Civil Judge (SD), Ghazipur through judgment and decree dated 3.1.2000 decreed the suit for the reliefs claimed in the plaint. Tenant-respondent filed revision against the said judgment and decree being SCC revision No. 1 of 2000. 1st Addl. District Judge, Ghazipur through judgment and order dated 7.11.2003 allowed the revision, set aside the judgment and decree passed by the J.S.C.C. and directed the plaint to be returned to the plaintiff for presentation in proper court/civil court as complicated question of title was involved in terms of Section 23 Provincial Small Causes Court Act. Landlord has filed this writ petition against the said judgment and order passed by the revisional court.
4. The brief facts of the case are that house No. 73, Markeenganj alias Jhandatar, Ghazipur was purchased by predecessor-in-interest of plaintiff- petitioner Gulab Chandra Verma from Badri Prasad on 10.6.1964. Gulab Chandra Verma has got three brothers, namely, Yogendar, Chhotey Lal and Harish Chandra. These four brothers became owners/landlords of the property in dispute and other properties left behind by their predecessor-in-interest after their death before 4.2.1973. According to the plaint all the co-owners orally partitioned their properties in the year 1973 (4.2.1973) and the aforesaid house bearing No. 73 fell in the share of plaintiff alone. It was further pleaded in the plaint that in a portion of the aforesaid house No. 73 Hardwar Mishra great grandfather of Badri Narain, respondent (who had been substituted as defendant after the death of his father Kamla Kant Misra) was tenant since before its purchase by predecessor-in-interest the father and uncles of plaintiff in the year 1964. The portion of the house in tenancy occupation of respondent is 73/1.
5. The defendant took the plea that the partition deed dated 4.2.1973 (termed as memorandum of partition by the plaintiff) was not admissible in evidence for want of registration. It was also pleaded that Yogendra one of the brothers of plaintiff who was also a co-owner of the house transferred his share in favour of Badri Narain-respondent. The suit was filed against Kamla Kant Misra who died during pendency of suit and his son Badri Narain respondent was substituted at his place.
6. The revisional court held that the partition deed dated 4.2.1973 was inadmissible. The revisional court ultimately held that notice of termination of tenancy given by plaintiff alone who was one of the co-landlords/co-sharers was not legal and "the suit by plaintiff one of the co-sharers was not legally maintainable".
7. The above view of the revisional court is not correct. Even if partition is ignored no fault can be found either with the notice or with the suit. Even one of the co-owners /co-landlords is authorised to give notice of termination of tenancy and file suit for eviction of tenant. This has been held by the Supreme Court in AIR 1993 SC 1587. I have discussed this point in some detail in the judgment of Kailash and Ors. v. Rajeev Lochan and Anr., 2004 (1) ARC 578. In this regard reference may also be made to the following authorities of the Supreme Court:
(1) Sri Ram Pasricha v. Jagannath and Ors., AIR 1976 SC 2335 ;
(2) Smt. Kanta Goel v. B.P. Pathak and Ors., AIR 1977 SC 1599 ;
(3) Pal Singh v. Sunder Singh and Ors., AIR 1989 SC 758 ;
(4) Dhanna Lal v. Kalawatt Bai, AIR 2002 SC 2572 ; and (5) India Umbrella Manufacturing Company v. B. Agarwal, AIR 2004 SC 1321.
8. In a recent authority by a learned single Judge of this Court in 2004 ARC 213, a contrary view has been taken by holding that even though one of the co-owners may file suit for ejectment of tenant however one of the co-landlords cannot do so. Unfortunately most of the above Supreme Court authorities particularly the authority of 2002 Dhanna Lal v. Kalawati Bai, were not placed before the learned Judge, part of para 17 of the said Supreme Court authority of 2002 is quoted below :
"It follows that a widow, who is a co-owner and landlady of the premises can in her own right initiate proceedings for eviction under Section 23A (b) as analyzed hereinbefore without joining other co-owners/co-landlords as party to the proceeding if they do not object to the initiation of proceedings by such landlady because she is the owner of the property................."
9. From the above it is quite clear that no distinction can be drawn regarding applicability of the aforesaid principle in cases of co-owners on one hand and co-landlords on the other hand. In the aforesaid Supreme Court authority of 2004 (para 7) also no distinction has been drawn between co-owner and co-landlord. Said para is quoted in latter part of this judgment. In any case in the Instant case all the co-owners were co-landlords at the time of filing of the suit, if partition is ignored.
10. As far as sale of a share by Yogendra, brother of the plaintiff in favour of Badri Nath Misra in the year 1991 during pendency of the suit is concerned no benefit can be derived therefrom by the tenants. If at the time of filing of the suit by one of the co-landlords/co-owners, other co-landlords and co-owners had no objection, then transfer of their share by them subsequently would not affect the suit. There cannot be any merger of interest of landlord and tenant in order to determine the tenancy under Section 111(d) of Transfer of Property Act unless entire interest of landlords/owners gets merged in the interest of tenant. This point stands concluded by the authority of Supreme Court in AIR 2004 SC 1321 (supra). Part of para 7 of the aforesaid authority is quoted below :
"In order to bring the tenancy to an end the merger should be complete i.e., the interest of the landlord in its entirety must come to vest and merge into the interest of tenant in its entirety. When part of the interest of the landlord or the interest of one out of many co-landlords-cum-co-owners comes to vest in the tenant, there is no merger and the tenancy is not extinguished."
11. Accordingly, judgment of the revisional court/Ist Additional District Judge, Ghazipur dated 7.11.2003 passed in S.C.C. revision No. 1 of 2000 is erroneous in law and liable to be set aside. However, revisional court has not decided the other points involved in the suit pertaining to rate of rent and default, etc.
12. Accordingly writ petition is allowed. Judgment and order passed by the revisional court is set aside and revision is remanded to the revisional court/Ist Additional District Judge, Ghazipur to decide the questions of rate of rent and default, etc. It is clarified that the suit shall be deemed to have been rightly filed before J.S.C.C. by petitioner Gulab Chandra Verma. In case revisional court comes to the conclusion that there is no such error in the finding of the trial court regarding arrears of rent and default which may be rectified or interfered with in exercise of revisional jurisdiction under Section 25, P.S.C.C. Act then revision must be dismissed.
13. As the suit was filed in the year 1986 hence revisional court shall decide the revision as expeditiously as possible preferably within a period of three months from the date of service upon tenant respondent who is revisionist before revisional court.
14. As no one has appeared on behalf of tenant respondent hence before proceeding further revisional court must ensure service of notice upon tenant who is revisionist before lower revisional court.