Calcutta High Court
Sm. Sukumari Debi And Another vs Shri Ramdas Ganguli on 6 April, 1993
Equivalent citations: AIR1994CAL85, 97CWN797, AIR 1994 CALCUTTA 85, (1993) CAL WN 797, (1994) 2 RENCJ 412, (1994) 3 CURCC 428, (1995) 1 RENCR 20
ORDER
1. The instant revisional application by the plaintiff-petitioners under S. 115 of the Code of Civil Procedure is directed against the order dated 2-8-77 passed by the learned Munsif, Second Court at Sealdah in T.S. No. 108 of 1975 before him allowing an application by the opposite party Nos. 2 and 3, Latika Banerjee and Gouri Mukherjee, under Order 1, Rule 10 of the Code for being added as co-plaintiffs therein.
2. The plaintiffs-petitioners, as landlords, had filed the aforesaid relevant T. S. No. 108 of 1975 before the Court below for eviction of the tenant-defendant-opposite party No. 1, Ramdas Ganguli, from the suit premises on the ground of default in payment of rent in respect thereof since the month of Shraban, 1381 B.S., contending, inter alia, that he was a monthly tenant under them at a monthly rental of Rs. 145/- only, payable according to Bengali Calendar Month. The defendant-tenant had entered appearance in the suit and had filed written statement raising a plea of non-joinder of parties. He had also filed applications under Ss. 17(1) and 17(2) of the West Bengal Premises Tenancy Act, 1956 (hereinafter referred to as Act) for determination of the amount of arrears of rent payable by him, without denying the relationship of landlord and tenant between the parties. During the pendency of the suit the opposite party Nos. 2 to 4 had filed an application before the learned Munsif under Order 1, Rule 10 of the C.P. Code for adding them as co-plaintiffs in the relevant suit on the plea that they are joint owners of the suit premises to the extent of undivided one-third share, therein. The learned Munsif by his impugned order dated 2-8-77 had allowed their petition in part directing the opposite party Nos. 2 and 3 to be added as co-plaintiffs in terms thereof for the reasons recorded therein. Being aggrieved by the order so passed by the learned Munsif, the plaintiffs-petitioners have come up in revision before this Court for appropriate relief on the grounds set forth in the relevant application.
3. The point emerging for consideration is whether the learned Munsif was justified in allowing the petition of the opposite party Nos. 2 to 4 in part, the way he did, in the facts and circumstances of the relevant proceedings.
4. It appears from the copy of the plaint in the aforesaid relevant suit, made Annexure 'A' to the application by the opposite party Nos. 2 and 3 for recalling the order of this Court dated 2-4-85, that the plaintiffs Sukumari Debi and Tarapada Banerjee had filed the relevant suit for eviction against the defendant-tenant on the plea that he was a monthly tenant under them in respect of the suit premises, as described and detailed in the schedule to the plaint, at a monthly rental of Rs. 145/- only payable according to Bengali Calendar Month. The defendant-tenant having failed to pay rent since the month of Shraban, 1381 B.S., the plaintiffs had determined the tenancy by a notice to quit, duly received by him on proper acknowledgement. The defendant not having vacated the suit premises in terms thereof, the plaintiffs had been constrained to commence the relevant proceedings.
5. Even though the defendant-tenant had raised a plea as to non-joinder of parties in his written statement for failure of the plaintiffs to implead their other co-sharers in respect of the disputed building, he had nowhere denied the relationship of landlord and tenant between him and the plaintiffs in his relevant applications filed before the Court under Ss. 17(1) and 17(2) of the aforesaid Act. He appears to have further contended that he had been regularly depositing rents with the Rent Controller in favour of the plaintiffs-landlords.
6. The opposite party Nos. 2 to 4, during the pendency of the suit had filed an application before the Court below under 0.1, R. 10 of the C. P. Code praying the Court for adding them as plaintiffs in the relevant suit on the plea that they are joint owners of the disputed premises for the undivided one-third share of late Durgadas Banerjee. It is contended by them that the original owner of the suit premises was late Surendranath Banerjee, who died intestate leaving the two plaintiffs and Durgadas Banerjee. Durgadas Banerjee had as well died intestate leaving them (opposite party Nos. 2 to 4) as his successors. They (opposite party Nos. 2 to 4) had further contended that they had been deprived from their claim to the rent payable by the defendant for which they have not been impleaded as plaintiffs in the relevant suit. There is not the merest and faintest whisper by them that the defendant-tenant had been inducted to the suit premises by them. The plaintiffs are also conspicuous by their silence on the said point. All that they have pleaded in the plaint is that the defendant was a monthly tenant under them in respect of the suit premises at a monthly rental of Rs. 145/-only payable according to Bengali Calendar Month. It would also seem significant and observable to note that the defendant-tenant is also conspicuous by his silence as to who had inducted him to the suit premises. As already indicated above, even though he had filed written statement in the relevant suit and had also filed applications under S. 17(1) and 17(2) of the aforesaid Act, he has nowhere denied the relationship of landlord and tenant between him and the plaintiffs. All that he had pleaded in his written statement is that the suit is bad for non-joinder of parties in the absence of the plaintiffs co-sharers in respect of the suit premises. It would also be pertinent to note, as already indicated above, that he (defendant-tenant) had sought to contend in his relevant application under S. 17(2) of the Act that he had been regularly depossting rents with the Rent Controller in favour of the plaintiffs (and not in favour of any other person, besides the plaintiffs).
7. Gauged in the background of the aforesaid facts and circumstances appearing from the materials before us, let me now consider how far the learned Munsif was justified in allowing the petition of the opposite party Nos. 2 to 4 in part by adding the opposite party Nos. 2 and 3 as co-plaintiffs in the relevant suit on the mere plea that they are "joint owners" in respect of the suit premises without more, in the absence of any plea that they are also co-landlords of the defend ant-tenant in respect thereof. It would be pertinent to recall that the relevant suit is one for eviction of the defendant-tenant from the suit premises only on the ground of default in payment of rent in respect thereof by the defendant-tenant since the month of Shraban, 1381 B.S., and not on any other ground, namely the ground of reasonble requirement.
8. Opposing the plaintiff-petitioners instant revisional application, the learned Advocate for the opposite party Nos. 2 and 3 had referred me to the decision in Amritlal Biswas v. Krishna Kishore, 1986 (2) CWN 398, wherein it had been held by a Division Bench of this Court that reasonable requirement of any one or more of the co-sharers would bring the case within Section 13(1)(ff) of the aforesid Act if all of them joined in the suit for eviction of the tenant, and it is not necessary that the premises in suit must be reasonably required by all the co-owners. Unhappily for the said opposite parties, the facts in the said case are clearly distinguishable for the facts in the instant case, as it is merely a suit for eviction of the defendant-tenant only on the ground of default in payment of rent and not on the ground of reasonable requirement of any of the co-sharers thereof. Their Lordships in the said decision had however, clearly held that a co-owner is as much an absolute owner as a sole owner is. The learned Advocate had referred to the decision in Sm. Sarashibala Roy v. Monorama Roy, 1986 (1) CHN 253 wherein it had been observed by Their Lordships of this Court that so far as this Court is concerned it is settled by the series of decisions that where the premises are owned by several co-owners, reasonable requirement of one or some of them would justify eviction of the tenant provided all the co-owner landlords have joined in the suit without any objection on any score, and that it is not necessary that the premises arc reasonably required by all the co-landlords. For much the same reasons already indicated above, the aforesaid decision is neither applicable to the facts of the instant case where eviction is sought for by the plaintiffs-landlords only on the ground of default in payment of rent by the tenant. The learned Advocate for the aforesaid opposite parties had again referred to the decision in Shantilal Dulichand Shah v. Ramesh Chandra Guzrati. where it had been held by a Division Bench of this Court that where the original lessor had left several heirs and the plaintiff is the karta of only one section of the body of co-sharers, the mere fact of payment of rent to the plaintiff, is not, by itself, sufficient to entitle the plaintiff to a decree for eviction for the reason that he does not represent the entire body of owners. The question here relates to the frame of the suit and its maintainability in the absence of the entire body of owners, in the facts and circumstances, discussed in the said judgment, which do not clearly appear to be applicable to the facts and circumstances of the relevant case before us. The learned Advocate had also referred to the decision in Pal Singh v. Sundar Singh, wherein their Lordships of the Supreme Court had held that an eviction petition would be maintainable even in the absence of all the owners where the co-owner of the premises in question did not object to the claim for eviction made by the co-owner-landlord against his tenant in the facts and circumstances of the said case. The learned Advocate for the opposite parties Nos. 2 and 3 had sought to wax eloquent that the reverse would be true namely that an eviction petition would not be maintainable in the absence of all the owners where a co-owner of the premises objects to the claim for eviction made by the co-owner-landlord against his tenant.
9. The question similar to that raised in the instant proceedings was gone into by the Supreme Court in the decision of Sri Ram Pasricha v. Jagannath, , wherein the plaintiff, as co-owner of the suit premises had filed the suit for eviction on the ground of default in payment of rent and personal requirement. The Supreme Court had held that the co-owner was as much an owner of the entire property as any sole owner of the property was, The Court had reiterated that jurisprudentially it was not correct to say that a co-owner of the property was not its owner. He owns every part of the composite property along with others, and it cannot be said that he is only a part-owner or a fractional owner of the property. The position would change only when partition takes place. The Supreme Court had thus found that it was not possible to accept the submission that the plaintiff in that case, who was admittedly a landlord and co-owner of the premises, was not the owner of the premises within the meaning of S. 13(1)(f) of the W.B.P.T. Act, 1956. The Supreme Court had reiterated that it is not necessary to establish that the plaintiff is the only owner of the property for the purpose of S. 13(1)(f) of the aforesaid Act as long as he was the co-owner of the property, being at the same time the acknowledged landlord of the defendants, as in the instant case. The Supreme Court had further observed that the tenant in such a suit is estopped from questioning the title of the landlord under S. 116 of the Evidence Act. He could not deny that the landlord had title to the premises at the commencement of the tenancy. Under the general law, in a suit between landlord and tenant, as in the instant case before us, the question of title to the leased property is irrelevant. It is, therefore, inconceivable to throw out the suit on account of non-pleading of other co-owners as such.
10. The same principle was reiterated by the Supreme Court in Kanta Goel v. B.G. Pathak, . In that case the tenant had been paying rent to the plaintiff, who, together with other co-owners constituted the body of landlords; and by consent, implicit or otherwise, the plaintiff was collecting rent on behalf of all. He, therefore, functioned as a landlord and was entitled to institute proceeding qua landlord. The Supreme Court had left open the ques-
tion in the said decision as to what would happen if some of the co-owners wanted the tenant to continue contrary to the relief claimed by the claimant-co-owner, The said question does neither emerge for consideration, in the instant proceeding before us, The opposite party Nos. 2 to 4, the alleged co-owners of the plaintiffs, do not appear to want the defendant-tenant to continue, contrary to the relief claimed by the plaintiffs-co-owners. It would per contra form the Annexure 'B' to the relevant application filed by the opposite party Nos. 2 and 3 for recalling the order of this Court dated 2-4-85 that the defendant-tenant Ramdas Ganguli had filed an application before the Court below for disposal of the suit on surrender the tenancy in question in favour of the added plaintiffs, the opposite party Nos. 2 and 3 herein, Latika Banerjee and Gouri Mukherjee, on the plea that during the pendency of the suit he (defendant-tenant) had got his own house at Salt Lake, and had handed over vacant possession of the tenancy in question, i.e. the suit property, unto Sm. Latika Banerjee and Smt. Gouri Mukherjee, the added plaintiffs on 30-9-1977 at about 10 a.m., who had duly received vacant possession of the same by granting receipt for the same, for which he (defendant-tenant) does not require to proceed with the instant suit against delivery of possession. It had also been submitted by the learned Advocate for the plaintiff-petitioners during the hearing that the defendant-tenant had delivered vacant possession of the suit premises to the aforesaid two added plaintiffs, the opposite party Nos. 2 and 3 herein, in terms of the aforesaid petition filed by him (defendant-tenant). The said fact had not been disputed by the learned Advocate for the opposite parties Nos. 2 and 3 during the hearing, giving the clearest and conclusive indication that they do neither want the tenant to continue. The question as to what would happen if some of the co-owners wanted the tenant to continue could not arise in the instant proceeding as such, in the aforesaid circumstances. That being so, in view of the aforesaid decisions of the Supreme Court there could be no mistaking that the plaintiffs landlords as co-owners of the suit premises would be entitled to maintain the suit for eviction of the defendant-tenant on the ground of default in payment of rent, being his acknowledged landlord, in the absence of all the co-owners. The opposite party Nos. 2 to 4, the alleged co-owners, could not, therefore, be deemed to be necessary parties in the relevant suit for which they would be required to be added as co-plaintiffs therein on the basis of the application filed by them under 0.1, R. 10 of the C.P. Code.
11. It would also be pertinent to note in this context that the Supreme Court in the decision in Swadesh Ranjan Sinha v. Haradev Banerjee, has held that "ownership denotes the relation between a person and an object forming the subject matter of his ownership. It consists of a complex of rights, all of which are rights in rem, being good against all the world and not merely against specific person." There are various rights or incidents of ownership all of which need not necessarily be present in every case. They may include a right to possess, use and enjoy the thing owned; and a right to consume, destroy or alienate it. Such a light may be indeterminate in duration and residuary in character. A person has a right to possess the thing which he owns, even when he is not in possession, but only retains a reversionary interest i.e. a right to re-posses the thing on the termination of a certain period or on the happening of a certain event. All that a plaintiff needs to prove is that he has a better title than the defendant. He has no burden to show that he has the best of all possible titles. His ownership is good against all the world except the true owner. The rights of an owner are seldom absolute, and often are in many respects controlled and regulated by statute. The question, however, is whether he has a superior right or interest vis-a-vis the person challenging it. In the facts and circumstances of the instant case there could be no denying that the plaintiffs in the relevant suit have clearly a better title than the defendant-tenant.
12. In view of the discussions above, the learned Munsif clearly appears to have gone grievously wrong in exercising his discretion improperly in allowing the relevant petition of the opposite party Nos. 2 to 4 in part by adding the opposite party Nos. 2 and 3 as plaintiffs in the relevant suit on their mere plea that they are joint owners of the suit premises and riot co-landlords of the defendant, along with the plaintiffs. There is neither the merest and faintest whisper in the relevant petition under 0.1, R.10 of the C.P. Code that the defendant was inducted as a tenant in respect of the suit premises by their predecessors-in-interest Durgadas Banerjee, or by them, along with the plaintiffs. In the nature of the relevant suit they (opposite party Nos. 2 to 4) could neither be allowed to be added as co-plaintiffs to challenge the maintainability of the suit and the rights of the plaintiffs to proceed with the same, as sadly submitted on their behalf during the hearing of the instant revisional application. It has been held in the decision in Ram Gopal Sah v. Dhirendra Nath, that it is true that 0.1, R. 10 of the Code of Civil Procedure itself places no such specific limitation on the power of the Court to add a person as a co-plaintiff but it is a sound exercise of discretion not to add a person as co-plaintiff when the existing plaintiff disputes the right of that person to the decree that might be passed or to the property which is the subject matter of the suit and as such there exists a direct conflict between the existing plaintiff and the person seeking addition as the co-plaintiff as in the instant case. He may be joined as defendant so that issue can be raised between the plaintiff and the party newly joined, if the nature of the suit so permits.
13. In the premises above, the instant revisional application by the plaintiffs-petitioners succeeds, and the impugned order dated 2-8-1977 passed by the learned Munsif be as set aside. The Rule issued be accordingly made absolute.
14. This order shall not, however, debar the learned Munsiff from framing an issue as to whether the suit is bad for non-joinder of parties and to dispose of the same according to law if the occasion so arises.
15. All interim orders in the matter, if any, be vacated. Since the relevant suit has been pending for so long a period since 1977, the learned Munsif is directed to dispose of the same, as early as possible, preferably within a period of four months from the date of communication of this order.
16. Let the L.C.R., if called for, be remited to the Court below forthwith, along with the copy of this order. No order for costs.
17. Application allowed.