N.N. Sharma, J.
1. This is a defendants revision directed against the judgment and decree recorded by learned II Addl. District Judge, Ghaziabad in S. C. C. Suit No. 26 of 1981 by which claim of landlords for ejectment, arrears of rent and mesne profits was decreed with costs on 29-5-1982.
2. The dispute relating to a part of building No. 48, Nav Yug Market, Ghaziabad. Admittedly plaintiffs Prem Chand Gupta and Harish Chand Gupta who were owners of the disputed premises were the landlords when it was let out on a monthly rent of Rs. 1450/- on 20-7-1979.
3. The tenement comprised a basement and one room in the south west portion of the first floor. There is no dispute now on the point that U. P. Urban Buildings (Regulation of Letting. Rent and Eviction) Act, 1972 (U. P. Act No. 13 of 1972) is inapplicable to this building as it was constructed in February 1978.
4. The tenancy of defendant was terminated by serving upon them a notice dated 14-5-1981 under Section 106 Transfer of Property Act received by them on 19-5-1981. It required the tenants to vacate the premises on 18-6-J981 and tenancy was determined from 19-6-1981 M/s. Garware Paints Ltd. New Delhi, the defendant did not comply with the notice nor paid damages for use and occupation claimed at the rate of Rs. 2000/- per month till the date of eviction.
5. In defence inter alia it was pleaded that the notice has been waived and so became ineffective.
6. Several other pleas were also raised which are not material for disposal of this revision as all those points terminated against the tenant and those findings were not assailed before me in revision.
7. The simple point which falls to be determined in this case is whether the notice dated 14-5-1981 under Section 106 of T. P. Act stands waived.
8. In order to appreciate the contention of the revisionist following facts are notable.
9. The notice dated 14-5-1981 was served on 30-5-1981 on the tenant. Anterior to the notice both the brothers partitioned this building on 22-7-1980. The upper room in tenancy and a portion of the basement of the tenement fell in share of Sri Harish Chand Gupta, respondent No. 2 who subsequent to the giving of the notice put forward a demand of rent of Rs. 1085A as monthly rent of his share and balance of Rs. 425/- as payable to his brother Sri Prem Chand Gupta in accordance with the partition decree paper No. 35-C. A photostat copy of which paper No. 35-C was enclosed with that letter.
10. Thus on the basis of this letter it was argued that the notice had been waived in accordance with Illustration-B appended to Section 113 of T. P. Act.
11. Learned trial Judge found that the notice of demand and ejectment was a joint notice given by both the brothers. The tenancy was also joint and no disruption in the integrity of tenancy could take place by such demand of his share of rent by a co-sharer landlord. When both the brothers gave a joint notice even after partition it was not open to one of them to have waived the notice without the consent of the other landlord.
12. Learned counsel for the revisionist strenuously argued before me that this finding was perverse. Notice of demand was not served by the two co-sharers jointly, It was sent by independent landlords relating to their separate shares singly and as such doctrine of waiver has been attracted in this case.
13. Having carefully considered this contention I do not find merit in it for the following reasons.
14. Section 113, Illustration-B of T. P. Act is reproduced as below :--
'A notice given under Section 111, Clause (h) is waived, with the express or implied consent of the person to whom it is given, by any act on the part of the person giving it showing an intention to treat the lease as subsisting.
(b) A. the lessor gives B. the lessee, notice to quit the property leased. The not ice expires, and B remains in possession. A gives to B as lessee a second notice to quit. The first notice is waived.'
Learned trial Judge rightly distinguished this provision by observing that in that illustration the tenancy had been determined by the landlord with a valid notice to quit and after such determination of the lease a second notice was sent by him as the landlord and referring to the same tenancy which already stood determined.
15. In the instant case it has been shown above that the notice of demand and ejectment was served on the tenant on 19-5-1981. It required the tenant to quit the premises on 19-6-1981 when the tenancy stood determined on 18-6-1981. Before the expiry of that period this letter dated 30-5-1981 was sent by one of the landlords. Under such circumstances there is no justification for the contention that at least innovation had come into existence so far as portion of respondent No. 2 was concerned. The tenant was no party to the partition decree nor there was any mutual agreement amongst the parties about such apportionment nor this letter referred to the earlier notice nor it was another notice of demand and ejectment. So the aforesaid illustration appended to Section 113 cannot save the tenancy from the termination on the ground of waiver.
16. Moreover a joint notice of demand relating to a joint tenancy by the two co-landlords could not be waived by a single landlord. In this connection learned trial Judge rightly relied upon Chhangur Ram v. Ganesh reported in 1978 All L J 486, where it was observed that a waiver to be effective or binding must be made by the entire body of the joint owners and it was not open to one of the joint owners to waive such notice. It reads as below :--
'After the determination of the tenancy by all the co-owners, it is not open to one of the co-owners either to waive the notice or to revive the tenancy or to create a fresh tenancy in favour of the tenant. It can only be done by all the co-owners acting together.
Where the plaintiffs co-owners after determining the tenancy of the defendant brought the suit for ejectment.
Held that it was not open to one of the plaintiffs acting alone to enter into a compromise with the defendant so as to waive the notice whereby the tenancy of the defendant-appellant had been determined by all the co-owners. It was also not open to him to revive or create a fresh tenancy in favour of the defendant. Such a partial compromise would he absolutely ineffective and, therefore, could not be given effect to'.
17. It appears that in that case Sri Chhangur Ram tenant occupied a shop in dispute by virtue of an allotment order dated 15-11-1957: the landlords were Thakur Dass and his sons the plaintiffs. The said tenancy was determined by the sons as Thakur Das died on 14-5-1960. The trial court found the tenant to be defaulter and recorded a decree for ejectment.
18. Pending the appeal of the tenant in this Court against the judgment preferred by the tenant against the judgment and decree of the Appellate Court who decreed the claim of the landlords in full one co-sharer, respondent No. 4 filed an application signed by him and the tenant and their respective counsel for recording a compromise under Order 23. Rule-3 C. P. C. The other brothers of respondent No. 4 were no parties to that application which was rejected by this Court. Learned counsel for the revisionist tried to distinguish this authority on the ground that the notice of demand and ejectment was not a joint notice but a single notice by independent landlord and each of them was competent to waive the same. This contention is not borne out by any provision of law nor any authority to the contrary was cited before me.
19. I respectfully agree with the said observations in the said authority and find that notice in question has not been waived and revision is devoid of merit.
20. In the result revision is dismissed.
Stay order, if any. shall stand vacated.