JUDGMENT S.U. Khan, J.
1. This is tenant's writ petition arising out of Suit for eviction filed by landlord-respondent No. 3 Janki Prasad in the form of Suit (S.C.C. suit) No. 54 of 1987 on the file of J.S.C.C., Moradabad. Eviction was sought on the ground of default and decree for recovery of arrears of rent was also prayed for. The suit was decreed for eviction as well as recovery of arrears of rent through judgment and decree dated 11.10.1988. Tenant-petitioner filed S.C.C. Revision No. 74 of 1988 against the said judgment and decree, IInd A.D.J., Moradabad through judgment and order dated 8.11.1989 dismissed the revision hence this writ petition.
2. Property in dispute is a quarter situate in Ashok Nagar, Moradabad. It was allotted to the petitioner in the year 1953 and in the allotment order Hemraj real brother of plaintiff Janki Prasad was shown to be the landlord. Initially rate of rent was Rs. 10 per month. In the plaint it was stated that since 1972 rent had been enhanced to Rs. 15.62 by the landlord through notice dated 28.8.1972, served upon the petitioner on 30.8.1972 and that since 1972 no rent had been paid. It was further stated that tenancy of the petitioner was terminated through notice dated 9.1.1987.
3. The tenant filed written statement pleading therein that Hemraj was his landlord who had died and after his death he was paying rent to Smt. Bhagwati Devi widow of Hemraj and that he had paid rent to Smt. Bhagwati Devi till May, 1987, against receipt. Petitioner stated that he was not aware that how plaintiff Janki Prasad became landlord. It was also stated that suit was bad for non-Joinder of Smt. Bhagwati Devi.
4. During the trial of the suit plaintiff took up the stand and adduced evidence to the effect that his mother Smt. Parwati was the owner of the property in dispute and other adjoining properties and that in the year 1955 a partition had taken place in between him and his brothers including Hemraj and under the said partition property in dispute had fallen in his share. It was further asserted that in respect of the said partition a memorandum (yaddasht) was prepared. It was further stated that petitioner had been told about the partition. However, no such case was taken by the plaintiff that any written information regarding partition was given to the petitioner. Plaintiff filed some money order receipts showing that petitioner had sent some rent to him through money order. Plaintiff further took up the case that Smt. Bhagwati Devi widow of Hemraj had sent a telegram to him asking for some financial help and on the basis of that plaintiff instructed the petitioner to pay rent to Smt. Bhagwati Devi for some time, however, through notice dated 28.8.1972, petitioner was again directed to pay rent to the plaintiff.
7. Even if theory of partition is accepted, tenant cannot be held to be liable to pay rent only to that person in whose share in the partition the tenanted property has fallen unless all the co-sharers intimate the tenant about the said partition or clear proof of partition along with its copy is supplied to the tenant. Even otherwise in the facts and circumstances of the case silence of plaintiff since 1972 till 1987 was very unusual (according to the plaintiff since 1972 till 1987 no rent was ever paid by the petitioner to the plaintiff). It has come in the judgment of the trial court that Smt. Bhagwati Devi herself gave a notice to the plaintiff claiming that she was the owner of the accommodation in dispute and entitled to receive rent from the petitioner. Copy of the said notice was filed as paper No. 20-ka. However, in respect thereof trial court has held that said notice was not proved. Even if the allegation that before 1972 some rent was paid by the petitioner to the plaintiff is accepted it will not make much difference because after the death of Hemraj, plaintiff being his brother also became co-owner of the property in dispute. Tenant can pay rent to any of the co-owners hence petitioner was fully entitled to pay rent either to Janki Prasad or to Smt. Bhagwati Devi.
8. In any case unless all the joint owners, after partition which has come into existence privately and not either through some registered document or decree of the Court or is recognized by some decree of the Court, intimate the tenant about the partition the tenant cannot be held to be bound by the said partition. In such situation if tenant pays rent to any of the co-owners, his liability is absolved. In this regard reference may be made to the proviso of Section 109, T.P. Act which is quoted below :
Provided that the transferee is not entitled to arrears of rent due before the transfer, and that, if the lessee, not having reason to believe that such transfer has been made, pays rent to the lessor, the lessee shall not be liable to pay such rent over again to the transferee.
9. Questioning the partition does not amount to denial of title. Trial court has also held that petitioner was liable to ejectment on the ground of denial of title also. In the absence of authentic information denial of derivative title does not amount to denial of title under Section 20(2)(f) of the Act vide Sheela v. Firm P. R. P. Prakash and Harold William v. A.D.J. 2004 (1) AWC 132 : 2003 (2) ARC 504.
10. Revisional court simply approved the findings of the trial court. The finding of validity of partition given by the courts below is not correct. No such finding could be given unless all the co-sharers were parties in the case or admitted the partition. Smt. Bhagwati Devi was neither party nor admitted the partition hence such findings could not be given.
11. Accordingly as version of the tenant that he has paid rent to Smt. Bhagwati Devi was not disbelieved hence it could not be said that tenant was defaulter.
12. Writ petition is allowed. Both the impugned judgments, decree and order are set aside. Suit of the plaintiff is dismissed.
13. I have held in Khursheeda v. A.D.J. 2004 (1) AWC 851 : 2004 (2) ARC 64, that while granting relief against eviction to the tenant in respect of building covered by Rent Control Act, writ court is empowered to enhance the rent to a reasonable extent. Rent of Rs. 10 or Rs. 12 or Rs. 15 is virtually as well as actually no rent. Accordingly, it is directed that w.e.f. January, 2006, tenant-petitioner shall pay rent at the rate of Rs. 500 per month.