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Ram Charan Mowar Vs. Ved Prakash - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 1926 of 1976
Judge
Reported inAIR1980All27
ActsTransfer of Property Act, 1882 - Sections 105 and 106
AppellantRam Charan Mowar
RespondentVed Prakash
Appellant AdvocateR.A. Sharma, Adv.
Respondent AdvocateRam Jee Saxena and ;N.S. Singhal, Advs.
DispositionRevision allowed
Excerpt:
.....i am clearly of the view that the learned district judge is wrong in taking the view that the suit at the instance of the applicant is not maintainable. if the accommodation had been let out by the plaintiff-applicant alone, then he alone was the lessor and consequently he had the right to determine the tenancy as well as to file a suit without joining the other co-owner. --105. a lease of immovable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of the price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasion to the transferor by the transferee, who accepts the transfer on such terms. act as well as to file..........maintainable at the instance of only the plaintiff-applicant inasmuch as his brother sri mahesh charan mowar had also half share in the house, arid that he having died, his heirs, namely, his widow, daughter and son were also the co-owners of the accommodation and they having not joined in the suit, the suit was incompetent. it was also asserted in the written statement that the notice determining the tenancy was given only by the plaintiff-applicant and not by the other co-owner, and consequently, the defendant-opposite party's lease had not been determined under section 106 of the t. p. act.3. before the trial court, the principal question which fell for determination was whether the defendant-opposite party had been inducted into the accommodation as tenant by the.....
Judgment:
ORDER

A.N. Varma, J.

1. This is a plaintiff's application in revision directed against the judgment and decree dated 29-6-76 passed by the learned District Judge, Mainpuri allowing the Revision filed by the defendant-opposite party and dismissing the suit filed by the plaintiff-applicant for ejectment and for arrears of rent from a certain accommodation, which had been let out to the defendant opposite party.

2. Briefly stated, the relevant facts are these. The plaintiff-applicant filed an application under Section 3 of the U. P. Temporary Control of Rent and Eviction Act, 1947 for permission to file a suit for eviction of the defendant-opposite party on the ground that he needed the accommodation for his personal use. After considerable litigation, the plaintiff-applicant was granted permission by the State Government under Section 7-F of the aforesaid Act. Thereafter, the plaintiff-applicant filed the present suit on the basis of the permission granted to him under Section 3 of the aforesaid Act. The defendant-opposite party contested the suit inter alia on the ground that the suit was not maintainable at the instance of only the plaintiff-applicant inasmuch as his brother Sri Mahesh Charan Mowar had also half share in the house, arid that he having died, his heirs, namely, his widow, daughter and son were also the co-owners of the accommodation and they having not joined in the suit, the suit was incompetent. It was also asserted in the written statement that the notice determining the tenancy was given only by the plaintiff-applicant and not by the other co-owner, and consequently, the defendant-opposite party's lease had not been determined under Section 106 of the T. P. Act.

3. Before the trial court, the principal question which fell for determination was whether the defendant-opposite party had been inducted into the accommodation as tenant by the plaintiff-applicant or both the plaintiff and his brother Mahesh Charan Mowar. The trial court upon an elaborate consideration of the voluminous evidence on record including admission of the defendant-opposite party came to the conclusion that the plaintiff-applicant was the sole lessor and that the accommodation in dispute had been let out solely by the plaintiff-applicant and not by his brother Mahesh Charan Mowar.

4. Having come to the conclusion that the defendant-applicant had been inducted solely by the plaintiff-applicant, the trial court came to the conclusion that the suit at the instance of the plaintiff-applicant alone was maintainable, and that for the same reason, the notice under Section 106 of the T. P. Act was also valid. The trial court accordingly decreed the suit.

5. Aggrieved, the defendant-applicant filed a Revision under Section 25 of the Provincial Small Cause Courts Act. The learned District Judge hearing the revision held that both Ram Charan Mowar and Mahesh Charan Mowar being co-owners of the accommodation in dispute, the suit at the instance of Ram Charan Mowar i.e. only one of the two co-owners was not maintainable. The learned District Judge addressed himself mainly to the determination of the question as to whether Mahesh Charan Mowar had also a right, title or interest in the house and having come to the conclusion that Mahesh Charan Mowar and after him his heirs were also the owners of the house in suit, the learned District Judge came to the conclusion that the suit was not maintainable as the heirs of Mahesh Charan Mowar had neither joined in the suit nor in the notice under Section 106 of the T. P. Act The learned District Judge accordingly allowed the revision and set aside the judgment and decree passed by the trial court on the finding that the suit was not maintainable.

6. Aggrieved, the plaintiff-applicant has filed the present Revision.

7. Learned counsel for the applicant has submitted that the view of the lower revisional court that the suit at the instance of the applicant is not maintainable is unsustainable and that the impugned orders passed under Revision are liable to be set aside. Learned counsel urged that the relevant question which fell for determination of the court below was as to whether Ram Charan Mowar alone was the lessor or both Ram Charan Mowar and Mahesh Charan Mowar were co-lessors. Learned counsel submitted that it is possible that there may be more than one owner of a property but the lease may be granted by only one of them to a tenant and where an accommodation is let out by one of the co-owners, that co-owner is entitled to file a suit and evict the tenant after serving a notice under Section 106 of the T. P. Act.

8. Learned counsel for the opposite party on the other hand urged that on the finding of the lower revisional court that both the brothers were the co-owners of the accommodation, they were both co-lessors within the meaning of Section 105 of the T. P. Act, and consequently one only of the two co-owners could not legally determine the tenancy of the defendant-opposite party.

9. Having heard learned counsel for the parties, I am clearly of the view that the learned District Judge is wrong in taking the view that the suit at the instance of the applicant is not maintainable. I fully agree with the submissions of the learned counsel for the plaintiff-applicant that the relevant question for determination was not as to who was the other co-owner but was as to who was the lessor. If the accommodation had been let out by the plaintiff-applicant alone, then he alone was the lessor and consequently he had the right to determine the tenancy as well as to file a suit without joining the other co-owner. In each case for the eviction of a tenant the question would be as to who is the lessor and if it is held upon the evidence on record that the (plaintiff alone is the lessor then a suit at the instance of such a plaintiff will be maintainable. Section 105 of the T. P. Act reads as follows:--

'105. A lease of immovable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of the price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasion to the transferor by the transferee, who accepts the transfer on such terms. The transferor is called the lessor, the transferee is called the lessee, the price is called the premium, and the money share, service or other thing to be so rendered is called the rent.'

10. Under the aforesaid provision, the transferor is called the lessor. In the present case, the transferor was the plaintiff-applicant alone, and not his brother. The trial court had analysed the evidence on record at great length and recorded a categorical finding that the defendant-opposite party was inducted as a tenant into the accommodation only by the plaintiff-applicant and not by his brother. Under the circumstances, the plaintiff-applicant alone, was the lessor, and in that capacity he had the right to determine the tenancy of the defendant-opposite party under Section 106, T. P. Act as well as to file the suit. The learned District Judge placed reliance on the fact that the defendant-opposite party was sharing the rent received by him with his brother Mahesh Charan Mowar, and consequently both must be deemed to be the co-owners and co-lessors. In my view, the trial court was right in taking the view that merely because the plaintiff-applicant shared the rent received from the defendant-opposite party with Mahesh Charan Mowar the latter did not automatically become the lessor of the plaintiff-applicant The question for determination was as to who had let out the accommodation, and not how the rent received by the plaintiff-applicant was disbursed amongst the co-sharers. The trial court has referred to the significant fact that the defendant-opposite party at no previous stage when the proceedings under Section 3 of the U. P. Temporary Control of Rent and Eviction Act were going on, disputed the fact that the plaintiff-applicant was the sole lessor. The trial court's finding on the question whether the plaintiff-applicant was the sole lessor was a finding which was not vitiated by law or which could be described as perverse. On that finding, the suit of the plaintiff-applicant was entitled to succeed. The contention that one of the co-owners can institute a suit or take proceedings against a tenant also finds support from a decision of the Supreme Court in the case of Ram Pasricha v. Jagannath reported in AIR 1976 SC 2335 (paras 28, 29 and 30). Learned counsel for the opposite party sought to distinguish this case on the ground that in that case, the plaintiff was acting on behalf of the entire joint family and consequently that case was distinguished. However, the principle of law laid down by their Lordships of the Supreme Court in that case is not dependent on this aspect of the case. Their Lordships of the Supreme Court have held that a co-owner is the owner of the entire property, and as such he is entitled to bring a suit for the eviction of the tenant,

For reasons stated above, this Revision succeeds and is allowed. The judgment and decree passed by the learned District Judge dated 29-6-76 are set aside and those passed by the trial court are restored.


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