JUDGMENT S.U. Khan, J.
1. Kanhiya Lal and Babu Lal were owners of the house in dispute which was a joint family property. Plaintiff petitioner Hari Ram is son of Babu Lal. Om Prakash who appeared as plaintiff's witness is son of Kanhiya Lal. According to the plaintiff petitioner his father Babu Lal had died and Kanhiya Lal was managing the joint family properties and that Kanhiya Lal partitioned the properties in such manner that house in dispute fell in the share of plaintiff petitioner. Original respondent No. 1 Nazir Khan since deceased and survived his wife Hajjo (or Hajara) and son Akhtar Khan was tenant of the house in dispute for a very long time. It appears that he was the tenant since before partition in between Kanhiya Lal and his nephew i.e. plaintiff-petitioner. After partition petitioner sent the notice to the tenant respondent No. 1 demanding the rent and terminating the tenancy. The notice was sent on 27.9.1961. Thereafter petitioner filed suit against respondent No. 1 for eviction and recovery of arrears of rent being SCC suit No. 128 of 1973 on the file of JSCC/Munsifff 1st, Jhansi. The number of the house in dispute is house No. 388 Bahar Sayed Gate, Jhansi. The tenant pleaded that he was the tenant of Kanhiya Lal and after the death of Kanhiya Lal he paid rent to legal representatives of Kanhiya Lal i.e. wife of Kanhiya Lal. Tenant denied the family partition. Tenant also asserted that he received a notice on behalf of legal representatives of Kanhiya Lal by Sri A.N. Dubey, Advocate on 17.5.1963. According to the tenant this notice was given by the Adovate on behalf of Om Prakash son of Kanhiya Lal. Om Prakash himself appeared in the witness box as witness of the plaintiff and out rightly denied sending any such notice. He fully supported the case of the petitioner that a partition had taken place in the family and house in dispute had come in the share of plaintiff-petitioner. Om Prakash is the only son of Kanhiya Lal. There was absolutely no sense in giving false evidence by Om Prakash. By his evidence he categorically admitted that he had no share in the house in dispute. This statement was against his own interest. It is inconceivable that just to benefit the petitioner this statement would be given by Om Prakash. If partition had not taken place and Om Prakash was the landlord-owner of the house in dispute as stated by the tenant then Om Prakash should have himself filed the suit and not supported the case of Hari Ram his cousin the plaintiff-petitioner. The tenant stated that he was paying rent to the widow of Kanhiya Lal i.e. mother of Om Prakash. Om Prakash denied this fact. The tenant did not make any efforts to examine the lady. In the absence of evidence of widow of Kanhiya Lal there remained no evidence on the part of the tenant in support of his pleading that legal representatives of Kanhiya Lal i.e. widow and son were owners landlords of the house in dispute. In this regard reference may be made to R.H. Ranoji v. M. Channabasappa A.I.R. 2000 S.C. 2108. In that authority after decree for eviction against tenant, his brother had filed a suit challenging the said decree and asserting that' he was the tenant and not his brother. He did not examine his brother who was defendant in the earlier suit which was decreed. Merely on the basis of this non-examination of the person against whom earlier decree was passed, High Court allowed the second appeal and the said judgment was approved by the Supreme Court holding that in the absence of evidence of a person against who earlier suit was decreed there remained no evidence on record to prove that the plaintiff of the later suit was the tenant and not the defendant of the earlier suit. The trial Court thoroughly disbelieved by giving very cogent reasons the evidence of the tenant to the effect that he had paid any rent to the widow of Kanhiya Lal. For this finding contradictions in the statement of the tenant were also taken into consideration by the trial Court.
2. Petitioner had asserted that the rate of rent was Rs. 15/- per month. Tenant asserted that it was only Rs. 10/- per month. Trial Court accepted the case of the petitioner and held that petitioner was owner-landlord of the house in dispute, rate of rent was Rs. 15/- per month and that tenant had not paid the rent since February, 1960. Trial Court ultimately through judgment and decree dated 7.11.1979 decreed the suit. Against the said judgment and decree tenant-respondent Nazir Khan filed SCC revision No. 193 of 1979. IVth A.D.J., Jhansi allowed the revision on 30.7.1984 hence this writ petition.
3. As far as alleged notice dated 17.5.1963 is concerned, the trial Court had held that the envelope in which the said notice was alleged to have been served upon the tenant was not filed. Before the revisional Court some envelope was filed and the revisional Court took that to be the envelope, which contained the notice, dated 17.5.1963 alleged to have been sent by A.N. Dubey, Advocate on behalf of Om Prakash. The revisional Court thereafter concluded that the said notice in fact had been sent by A.N. Dubey on the instructions of Om Prakash. The revisional Court held that plaintiff petitioner was not the landlord and Om Prakash and his mother were the landlords. Accordingly, revisional Court set aside the judgment and decree of the trial Court and dismissed the suit of the plaintiff.
4. Revisional Court did not record any finding regarding payment of rent.
5. Revisional Court did not accept the theory of partition on the ground that in the partition all the houses were given to the petitioner and Kanhiya Lal did not keep any house for himself which was unnatural. The said partition was willingly admitted by Om Prakash son of Kanhiya Lal. It was none of the business of the Court or the tenant to question the partition which was admitted to all the parties concerned. The view of the revisional Court that such partition does not appeal to reason is too fantastic. If all the joint owners had partitioned the property in a particular manner and no joint owner made any complaint regarding that even after partition then neither Court nor tenant can question the manner of division of properties. When Om Prakash son of Kanhiya Lal himself admitted that house in dispute did not belong to him but to the plaintiff, there was no sense in thrusting the ownership of the house upon Om Prakash. The view of the revisional Court that theory of partition was set up in order to evict the tenant is rather ridiculous. Tenant had not paid any rent since 1960 as found by the trial Court and the said finding has not been reversed by the revisional Court. In such situation if Om Prakash had been the owner-landlord then he would have filed the suit for eviction on the ground of default and easily obtained decree for eviction. In any case even in the absence of partition petitioner is one of the co-owners, property being joint family property. The Supreme Court in India Umbrella Manufacturing Co. v. B. Agarwal has held that one of the co-owners even without impleading the other co-owners as proforma respondents is entitled to file suit for eviction of tenant.
6. Even if worst case against the plaintiff-petitioner is taken still by the statement of Om Prakash plaintiff became entitled to recover the rent. By virtue of the definition of landlord given under Section 3(j) of U.P. Act No. 13 of 1972 landlord of a building means a person to whom its rent is payable and includes the agent or attorney of such person. It was found by the trial Court that tenant paid rent neither to the petitioner nor to Om Prakash nor to mother of Om Prakash. In view of this even if it is held that Om Prakash was owner of the house in dispute, plaintiff petitioner became landlord by the statement of Om Prakash and suit was liable to be decreed on the ground of default.
7. Tenant asserted that Om Prakash was the landlord. Om Prakash did not make any claim to the ownership of the house in dispute. Revisional Court thrust the ownership upon Om Prakash. The resultant position was that respondent No. 1 Nazir Khan became a tenant without any landlord. In this regard the following passage contained in para-2 of the Supreme Court authority reported in P.K. Gupta v. R. Nagdeo is quite relevant:
The enviable position to which the tenant of a shop building has ensconced himself as corollary to the judgment of the High Court (under appeal now is that he need not thenceforth be accountable to any landlord. On the one side when the claim of appellant to be the landlord has been discountenanced by the High Court, at the other side the person whom the tenant proclaimed as his landlord has disclaimed the credential. If the judgment of the High Court remains in force the tenant stands elevated virtually to the status of owner of the suit building.
8. The supreme Court observation in the above noted authority to the effect that if the impugned judgment remains in force the tenant stands elevated virtually to the status of owner is applicable to the instant case with greater force. The judgment of lower revisional Court made the tenant virtual owner as there remained no landlord to whom tenant might be 'answerable. Legal representatives of the tenant very conveniently took the next logical step and started treating themselves to be actual owner instead of virtual owner. The widow of the original tenant-respondent Nazir Khan i.e. Smt. Hajara Beguam (or Hajjo) now respondent No. 1/1 sold the house in dispute to one Mohd. Iqbal through registered sale deed on 16.3.2001 and in the sale deed she described herself as owner of the house in dispute. Copy of the sale deed has been filed alongwith affidavit filed alongwith application dated 24.4.2001.
9. Accordingly, writ petition is allowed. Judgment and order passed by revisional Court is set aside. Judgment and decree passed by the trial Court is restored.
10. However, as inspite of sufficient service legal representatives of respondent No. 1 did not appear in this writ petition hence the trial Court/executing Court before issuing writ of possession/parwana dakhal shall ensure service of notice upon respondent No. 1/1 and 1/2 i.e. Smt. Hajjo (Hajara) wife of Nazir Khan and Akhtar Khan son of Nazir Khan. Notice may also be issued to the purchaser Mohd. Iqbal. However purchaser is liable to be evicted as he is in possession on behalf of judgment debtor. Decree shall be executed as expeditiously as possible for the reasons that the suit was filed 32 years before and judgment debtors have without any authority sold the house in dispute.