1. Home
  2. /
  3. High Court Of Judicature at Allahabad
  4. /
  5. 1963
  6. /
  7. January

Shambhoo Dayal vs Chandra Kali Devi And Ors.

High Court Of Judicature at Allahabad|28 March, 1963


JUDGMENT S.S. Dhavan, J.
1. This is a tenant's second appeal from the concurrent decisions of the Courts below decreeing a suit filed jointly by three landlords, for his ejectment and recovery of rent from him. The facts which are somewhat peculiar are these. The defendant-appellant Shambhoo Dayal was originally the tenant of the house in dispute of which the landlords were three brothers whose-names are immaterial. The rent was Rs. 30/- per month. They divided the house into three separate portions and sold one portion each to the three ladies who are the plaintiffs in the present suit-Smt. Chandra Kali Devi., Smt. Sona and Smt. Raj Rani. The transfer of each portion was made by a separate-sale deed. Prior to the sale the husband of the plaintiff Chandra Kali Devi was a sub-tenant of the defendant in a portion of the house and the plaintiff Smt. Sona was herself a sub-tenant in another portion of the house. After acquiring the ownership of the house, the three plaintiffs made a joint, application under Section 3 of the U. P. Control of Rent and Eviction Act for permission to file a suit for the ejectment of the defendant which was granted by a common order. Thereupon they terminated his tenancy by means of a common notice under Section 106 of the Transfer of Property Act, and on his refusal to vacate, filed the present suit. The defendant resisted the suit and raised a number of pleas in defence, mostly of a technical nature. First, he contended that the order granting permission under Section 3 was void as it purported to give permission by a single decision to three different landlords in respect of three different portions of the house; secondly, the suit was bad for mis-joinder of parties because each plaintiff was not interested in the relief claimed by the other two and there should have been three separate suits; thirdly, the common notice under Section 106 was invalid and the tenancy could only be terminated by three separate notices; fourthly, the suit of the plaintiff Chandra Kali Devi was not maintainable because her husband was the sub-tenant of the defendant prior to the sale conferring rights of ownership on her and this sale could not infringe the rights of the defendant as the landlord of the sub-tenant, and similarly the suit of the plaintiff Smt. Sona was also bad as she was the defendant's subtenant before purchasing a portion of the house but the sale could not effect the relationship of landlord and tenant between the parties.
2. Both the Courts below held that the three plaintiffs had acquired separate portions of the house under three separate sale deeds, that the suit was not bad for mis-joinder of parties, that the permission under Section 3 of the U. P. Control of Rent and Eviction Act and the notice of termination of tenancy under Section 106 were valid and that the relationship of sub-tenancy between the defendant and the husband of the first plaintiff and the second plaintiff could not affect their rights as land-lords after they had become the owners of the property. All the pleas of the defendant were rejected and the suit decreed. He has now come to this Court in second appeal.
3. Mr. M. N. Shukla for the appellant raised the same pleas before me in Appeal. First, he contended that the suit was bad for mis-joinder of parties and relied on an old decision of this Court in Salima Bibi v. Sheikh Muhammad, ILR 18 All 131 in which it was held that a joint suit filed by three plaintiffs for possession of immovable property in which two were owners of one half and the third of the other half was bad for misjoinder of causes of action. But this decision was passed under the old Act and became ineffective after the amendment of the C. P. C. in 1908. Order I, Rule I of the new Code, which corresponds to Section 26 of the Old, provides that "all persons may be joined 'in one suit' as plaintiffs in whom any right to relief in respect of 'or arising out of the same act or transaction or series of acts or transactions' is alleged to exist whether jointly or severally, or in the alternative, where, 'if such persons brought separate suits any common question of law or fact would arise' ". The words underlined (here into ' ') above did not exist in the old Section 26. It is, therefore, clear that the law was changed after the decision in ILR 18 All 131 and now it is possible for three plaintiffs to be joined in one suit even on the basis of different causes of action, provided any common question of law or fact would arise if the suit had been filed separately. The change in India was parallel to corresponding changes in English procedure and a joinder of plaintiffs on the same principle is permitted by the English and Indian Courts today. Universities of Oxford and Cambridge v. George Gill and Sons, 1899-1 Ch 55; Ramalingier v. Sub-ramania Pillai, AIR 1923 Mad 331 (2) Basharat Beg v. Hira Lal, AIR 1932 All 401, Monindra Lal v. Hari Pada, AIR 1936 Cal 650; Mohd. Khalil Khan v. Mahboob Ali, AIR 1942 All 122; and Sita Ram Agarwalla v. Rajendra Chandra Pal, AIR 1956 Assam 7. Furthermore, Section 99 of the new Code which corresponds to Section 578 of the old Code was also amended and it now provides that "no decree shall be reversed or substantially varied nor shall any case be remanded, in appeal on account of 'any mis-joinder of parties or causes of action or any error', defect or irregularity in any proceedings in the suit, not affecting the merits of the case of the jurisdiction of the Court." The words underlined (here into ' ') are new and did not exist in the old Section 578. Today the question whether several plaintiffs should be permitted to join in a common suit is within the discretion of the trial Court and the appellate Court has been deprived of the power to interfere with this discretion. Muhammad Husain Khan v. Babu Kishva Nandan Sahai, AIR 1937 PC 233 and Ram Dhan Puri v. Lachmi Narain, AIR 1937 PC 42. This argument, therefore, fails,
4. Secondly, Mr. Shukla contended that the suit should have been dismissed because the three plaintiffs included one who was a sub-tenant of the defendant and another whose husband was a sub-tenant. Learned counsel contended that a subtenant cannot, after purchasing the house, exercise the rights of the landlord in such a manner as to repudiate his liabilities and obligations under the sub-tenancy and infringe the rights of his former landlord. Before considering the argument on merits it is necessary to delimit its scope. It does not apply to the third plaintiff Smt. Raj Rani who was never a sub-tenant of the defendant, not can it apply to the first plaintiff Smt. Chandra Kali Devi whose husband was a sub-tenant. The argument can be directed only against the right of the second plaintiff Smt. Sona who was herself a subtenant of the defendant in the portion of the house which was subsequently purchased by her. However, I see no merit in it, because learned counsel has failed to point out any right of the defendant tenant in chief under the agreement of the subtenancy which might have been infringed by the filing of this suit for his ejectment. Under that agreement, the sub-tenant agreed to pay the defendant rent for the portion occupied by her. But this is not a suit for the recovery of rent by the defendant against a sub-tenant but one for the ejectment of the tenant-in-chief by some one who has now become the landlord. The exercise of the right of ejectment of the tenant-in-chief in accordance with law (subject to any special restrictions) is inherent in ownership, and no law or authority was cited by counsel in support of his argument that a sub-tenant cannot exercise these rights of ownership because of his previous status. In my opinion, he derives the rights of ownership from the previous owner and the argument that a sub-tenant's rights as the new owner do not include the right to eject the tenant-in-chief amounts to saying that the previous owner could not pass at the incidents of ownership to a sub-tenant. I do not think that a tenant-in-chief can claim to reduce the inherent rights of his landlord, as owner, to transfer the property to whomsoever he likes--including a subtenant on the plea that any transfer of ownership to the sub-tenant will be subject to his paramount rights under the sub-tenancy. His rights as a tenant-in-chief cannot be paramount over those of landlord as an owner, and to restrict the exercise of rights of a transferee of the owner because he was previously a sub-tenant is to restrict the rights of transfer of the owner from whom the sub-tenant derives his title. In this case the defendant's rights were terminated by the former sub-tenant in the exercise of his rights as owner of the accommodation and the fact that he happened to be the defendant's sub-tenant is irrelevant to the exercise of the rights of ownership which are derived from the previous owner.
5. It was then argued by Mr. Sukla that the permission granted by the Rent Control and Eviction Officer for the ejectment of the tenant was invalid as it was given by a common order. Learned counsel pointed out that the three plaintiffs became owners of three different portions of the house and should have filed separate applications which should have been decided by separate orders. This argument ignores the provisions of Section 109 of the Transfer of Property Act which provides in effect that if the lessor transfers the property leased, or any part of it, the transferee in the absence of any contract to the contrary shall possess all the rights, and if the lessee so elects, be subject to all the liabilities of the lessor as to the property or part transferred so long as he is the owner of it. In the present case, it is not denied that the defendant was the tenant of the entire house before it was divided up into three portions which were sold to the three plaintiffs. The sale transaction of itself could not have the effect of splitting the plaintiffs' single tenancy into three separate tenancies without his consent. It is conceded that there was no such agreement or consent on his part. Therefore, he continued to remain the tenant of the house even after the three sale deeds. If the plaintiffs have filed separate applications, the result very well might have been that the application of some of them might have been rejected and of the rest allowed. This would have led to the absurd position that the defendant would have been ejected from a portion or portions of the house--a result not permitted by law. It is the settled view of this Court that the District Magistrate has no power to grant the landlord permission to eject the tenant from a portion of the accommodation occupied by him.
6. Furthermore, even if the defendant had occupied three different portions of the house under separate tenancies, there was nothing illegal in the three plaintiffs joining together in a common application for permission to eject him from the three different portions. The matter was purely one of convenience and the defendant was not prejudiced by the common order in any way. If different plaintiffs can be joined in the same suit on the basis of different causes of action, I see no reason why this principle should not be extended to suitable cases in the matter of applications under Section 3, provided the parties are not prejudiced by this procedure.
7. Lastly, it was argued that the common notice terminating the tenancy under Section 106 of the Transfer of Property Act was invalid. Learned counsel pointed out that by this notice each plaintiff purported to terminate the defendant's tenancy even with regard to portions of which he was not the owner. I am not much impressed by this argument. At the most the defendant is entitled to claim that each plaintiff was competent to terminate the defendant's tenancy in respect only of the portion of the house owned by him. Even if this argument succeeds, the result would be that the notice of each plaintiff was valid only to the extent of the portion under his ownership, but it will not make any practical difference because all the three plaintiffs joined in the notice. The combined result of the common notice is that the defendant has been served with a notice terminating his tenancy in respect of each portion by a person who was competent to serve that notice with regard to that portion. The defendant did not misunderstand the meaning and effect of the notice and knew that the three plaintiffs acting together had terminated his tenancy. I do not think that a technical argument of this sort should defeat the rights of the purchaser of the property. I am quite sure that if three separate notices had been served, the defendant would have come forward with the plea that each of them was invalid as it terminated his tenancy in respect of a part only of the accommodation.
Disclaimer: Above Judgment displayed here are taken straight from the court; Vakilsearch has no ownership interest in, reservation over, or other connection to them.

Shambhoo Dayal vs Chandra Kali Devi And Ors.


High Court Of Judicature at Allahabad

28 March, 1963
  • S Dhavan