I.N. Modi, J.
1. This is a civil regular second appeal by the defendants in a suit for rent and ejectment. The suit for rent has been dismissed by both Courts below and there is no dispute-about that at the present stage, and the only question in controversy in the present appeal is About ejectment for which relief the suit has been decreed.
2. The material facts leading up to this appeal may shortly be stated as follows. Nathmal and Dhanraj, father and son, obtained on rent the suit shop, which has been fully described in paragraph one of the plaint, from Purshottam Das and Murlidhar by a rent-note dated Maha Vadi 9 Smt. 1999 (corresponding to some time in 1942) Ex. P-I, by which the former agreed to pay rent at-the rate of Rs. 24/- per mensem to the latter. One of the terras in the rent-note was that the tenants would be willing to give vacant possession of the said shop whenever the landlords should demand possession of it. It appears that the tenants did not pay any rent to the landlords for a period of six years preceding the institution of this suit and consequently it is alleged in the plaint that they gave a notice to the former to pay the rent in arrears as also to quit, and in support of this allegation the relevant postal receipt-was produced.
Another grievance of the plaintiffs landlords-was that the defendants tenants had disclaimed the title of the landlords and arrogated the same to themselves. It is in these circumstances that the present suit was instituted on the 16th November, 1950, in the Court of the Munsiff Didwana in which the arrears of rent as well as ejectment were claimed, and a further claim of Rs. 10/-per mensem as damages was made from the date of the salt until delivery of possession. Nathmal seems to have died soon after the institution of the suit, and his other son Naraindas was brought on the record in his place; Dhanraj one of the executants of the rent-note being also his son was already on the record. Both defendants resisted-the suit. They denied the tenancy and the rent-note on which it was founded. They also raised the plea that the notice was invalid.
3. The trial Court decreed the suit both for rent and ejectment. The defendants went up inappeal but failed. Thereafter they came in secondappeal to this Court. At that stage it appears Co have been discovered that the plaintiff Murlidhar had died some time in December, 1950, when the suit was pending in the trial Court and that his legal representatives had not been brought on the record. In that connection it was further discovered that an application had beenmade on behalf of Kishorelal plaintiff that he and the deceased Murlidhar constituted a Joint Hindu family and that after the death of the said Murlidhar, Kishorelal was the Karta of the family. But somehow this application was not pursued and the trial Court did not take any action on it. It was thus submitted before this Court in second appeal that the plaintiff Murlidhar having died in December, 1950, and his legal representatives haying not been brought on the record in his place, the whole suit had abated and should be dismissed.
It was also urged that an issue as to the validity of the notice had not been framed in the trial Court although the parties were in disagreement on that point. In these circumstances, a learned Single Judge before whom the appeal came for disposal allowed it and remanded the case to the trial Court With a direction that an opportunity be given to the plaintiff Kishorelal to prove the allegations made in his application dated the 28th April, 1952, and to decide whether the right tosue survived to him alone so that he was in a position to continue the suit without bringing the legal representatives of the deceased Murlidhar onthe record. Furthermore, the trial Court was also asked to frame an issue as to whether a validnotice either of forfeiture or terminating the tenancywas served on the defendants and to decide thatissue also. The parties were allowed to adduceevidence on the points remitted to the trial Court.
4. On the suit haying been so remanded thetrial Court held that Murlidhar and Kishorelalwere members of a joint Hindu family but it wasnot satisfactorily proved that Kishorelal was the Karta thereof, and, therefore, the latter could not by himself represent the estate of the deceasedMurlidhar which devolved on his widow and minorsons after his death so far as the question of therecovery of arrears of rent and mesne profits wasconcerned. But that Court further held that thequestion of ejectment stood on a different footingas the tenancy had come to an end when the noticeto quit was served on the defendants where-after they were no better than trespassers and theplaintiff Kishorelal being one of the co-owners wascompetent to maintain a suit for that relief byhimself and in this view of the matter, the suitfor ejectment was decreed.
As for the other question relating to the validity or otherwise of the notice to quit, the trial Court held that this was a case of a tenancy-at will and consequently no notice within themeaning of Section 106 of the Transfer of Property Act was at all necessary. The suit was accordinglypartly decreed, that is, for ejectment only and it was dismissed for arrears of rent and mesne profits. The plaintiffs were obviously content with this decree and did not challenge it any further so that the dismissal of the suit for arrears of rent and mesne profits has become final. The defendants went up in appeal to the Civil Judge, Merta, but without any success. They have now come up in second appeal to this Court.
5. The first and foremost question which has been debated before this Court in the present appeal pertains to the maintainability of the suit at the instance of the plaintiff Kishorelal alone after the death of the other plaintiff Murlidhar, his legal representatives having not been brought on the record in his place. I propose to dispose of this question on the footing that Kishorelal has not been proved to be a Karta of the joint Hindu family consisting of himself and his uncle Murlidhar, although it may be stated that the finding of the trial Court was that Kishorelal and Murlidhar were members of a joint Hindu family, and that finding does not seem to have been called in question in the Court of first appeal.
6. Having heard learned counsel for the parties at some length on this question, I have arrived at the conclusion that the contention of learned counsel for the defendants is without any force. It may be pointed out at the very outset that this case is not governed by any Rent Control enactment. Now, the principal reason which has induced me to come to this conclusion is that the present is a case of a tenancy-at-will and once the landlords had called upon the defendants tenants to hand over possession of the suit premises, they were merely tenants on sufferance and their position was little better than that of trespassers, and it is settled law that one of the co-owners can maintain a suit for eviction or possession against a trespasser. I propose now to refer to a few decided cases which have fortified me in coming to this conclusion.
7. In Ahmad Sahib Shutari v. Magnesite Syndicate Ltd., AIR 1915 Mad 1214(1), it was held that the law was well settled that as against a trespasser, any one of the co-owners can maintain an action in ejectment.
8. In Maganlal v. Bhudar, AIR 1927 Bom 192, the facts were that the property was owned in common by two co-owners and that defendant No. 1 was a tenant for a fixed period which had expired before the date of the suit. A notice terminating the tenancy was given by the plaintiffs to the defendant although in law no notice was necessary. It was held that the position of the defendant was nothing better than that of a tenant on sufferance, and, that being so, it was further held that one of the co-owners could maintain a suit to eject him. The ratio of the decision is that the tenancy had expired by efflux of time and thereafter in the absence of a further contract to that effect, the relationship of landlord and tenant came to an end and survived no further.
9. The same view appears to have been taken in Sheotahal v. Lal Narain, AIR 1930 All 422. The reason for the rule was stated to be that in the absence of a partition, the right of each co-owner or coparcener extended to the whole property jointly with the other co-owners and that the action for possession of the property was for the obvious advantage of all of them.
10. Again in Yeshwant v. Keshav Anaat, AIR 1940 Bom 13, it was held that the rule that where the landlord's rights belong jointly to several persons a suit to eject a tenant can be institutedonly by all the co-owners applies to those cases where there is a subsisting relationship of landlord and tenant at the date of the suit; but itdoes not apply where the tenant continues merely on sufferance after the expiration of the periodof tenancy, and that in such a case a suit broughtby only one of the co-owners to eject the tenant is maintainable, and the view taken in AIR 1927 Bom 192 (supra) was approved.
11. Again in Ram Charan v. Bansidhar, AIR 1942 All 358 it was laid down that where property is held in coparcenary or in co-ownership, it is not necessary for all the coparceners or co-owners to join in a suit for the ejectment of trespassers and that a decree for the recovery of possession of the entire property can be passed even when the suit is braught by only one of the several coparceners or co-owners, and the principle laid down in AIR 1930 All 422 (Supra) was affirmed as correct. It was also laid down that the same rule applied to a claim for mesne profits or compensation and one of several co-owners was entitled to recover from the trespasser the whole of the profits which were payable by the trespasser on account of his wrongful possession, though it may be added for obvious reasons that this would not amount to any decision as between the co-owners or coparceners inter se, and any dispute arising between them to share such mesne profits or compensation must fall to be decided separately.
12. In Vinod Sagar v. Vishnubhai, AIR 1947 Lah 388 it was again held that where the tenancy bad been determined, one of the co-owners could maintain a suit for ejectment of a trespasser without impleading the other co-owners,
13. Learned counsel for the defendants invited my attention to Akbar v. Hukarn Singh, AIR 1930 Lah 353 and Rama Motibhai v. Dalwadi Tupoo Rama, AIR 1956 Bom 264. I consider it sufficient to point out, so far as these cases are concerned, that their facts afford no parallel to the case before me, and, therefore, these are entirely distinguishable, and in no way detract from the principle which is deducible from the cases which I have cited above.
14. The correct legal position which can be gathered from the cases referred to above is that where a tenancy has been lawfully determined by the landlord and to this I should like to add that where no question of statutory tenancy arises as in the present case, the relationship of landlord and tenant thereby does come to an end between the parties, and thereafter the position of the tenant is that of a tenant on sufferance, which is akin to that of a trespasser, and that being so, a suit by one of the co-owners to eject the tenant would be fully competent in law. It must follow, therefore, that the present suit which was continuedoy Kishorelal along after the death of Murhdhar during its pendency in the trial Court cannot be thrown out as having abated on the ground that the latter's legal representatives were not brought on the record and the correct position is that Kishorelal being one of the co-owners was fully competent by himself to maintain the suit. I hold accordingly.
15. The next question is whether the notice by which the plaintiffs determined the tenancy of the defendants was invalid in law, and, therefore, the present suit must still fail. Now so far as that aspect of the case is concerned, the important point which requires to be borne in mind is that this was a case of a mere tenancy-at-will inasmuch as the defendants tenants had unequivocally undertaken to give vacant possession of the suit premises whenever the landlords should desire 'them to do so. In a case like that, it is well settled that no notice within the meaning of Section 106 of the Transfer of Property Act is at all necessary to terminate the tenancy. It may also be pointed out in this connection that this is admittedly a case of a pre-Transfer of Property Act tenancy and on that ground also the provisions of Section 106 cannot rightly be called into operation.
16. Learned counsel for the defendants, however, sought to raise for the first time the contention that the notice to quit in this case was-given by Murlidhar alone, and, therefore, the tenancy was not validly terminated. For one thing, and learned counsel cannot possibly dispute that, this contention was not raised on behalf of the defendants in any of the Courts below, and, therefore, he is not entitled, in my judgment, to raise it at this stage. Even the notice on which learned counsel seems to rely was not brought on the record, and, therefore, it is impossible to say whether the one or both of the landlords gave the notice. For another, I find it extremely difficult to accept that the contention raised by learned counsel can have any force in the case of a tenancy-at-will which in law requires no notice within the meaning of Section 106 to terminate it. A simple demand for possession is enough, and it seems to me that such a demand was made in the present case.
17. For the reasons mentioned above, this appeal fails and is hereby dismissed with costs.