Andhra HC (Pre-Telangana)
S. Sarvaiah vs Prabhavathi And Ors. - L.Rs. Of Joseph on 2 April, 1997
Equivalent citations: 1997(4)ALT240, 1997 A I H C 3486, (1997) 2 RENCR 384, (1997) 3 ANDHLD 835, (1997) 4 ANDH LT 240, (1997) 2 APLJ 387
Author: V. Bhaskara Rao
Bench: V. Bhaskara Rao
ORDER V. Bhaskara Rao, J.
1. The judgment in R.A.No. 168 of 1980 on the file of Chief Judge, City Small Causes Court, Hyderabad, dated 1-8-1991 is assailed in this Revision Petition by the landlord. The Rent Controller allowed R.C. No. 93/80 on the sole ground of wilful default in payment of rent for the period from 18-12-1978 to 17-3-1980 and the learned Chief Judge while confirming the finding regarding wilful default in payment of rent reversed the order on the ground that the landlord is not the sole owner and a co-sharer cannot maintain the eviction petition against another co-sharer. Hence this revision petition.
2. It is noteworthy that in the counter filed by the tenant a ground is raised that the premises originally belonged to Easwaraiah, who died intestate in the year 1964 leaving behind his widow, three sons, one of them being revision petitioner herein and four daughters one of them being Respondent No. 1 and that the remaining heirs of late Easwaraiah have not authorised the revision petitioner to file the eviction petition. The Revision petitioner was examined as PW. 1 and it has been elicited in the cross-examination that Easwaraiah died intestate leaving behind the aforesaid Class-I heirs. Yet, the learned Rent Controller took the view that it is not only the owners of the building, but the person who is receiving or entitled to receive the rent of the premises that is a landlord and hence the eviction petition is maintainable. When this ground was canvassed before the learned Chief Judge, it is held that having regard to the relationship between the landlord and the legal representatives of the tenant and the widow's claim that she was a sharer in the property there is no justification to direct eviction of the legal representatives. In this revision petition, Sri K. Rama Rao, learned Counsel for the revision petitioner has strenuously contended that an eviction petition is very well maintainable even without the other co-sharers. Sri Janardhana Rao on the other hand contended that in view of a Division Bench judgment of this Court in Damodaram Chetti v. Rukmaniamma, 1967 (2) An.W.R. 200 and a judgment of a learned single Judge in Vasantrao Ankilkar v. Nalini Bai Joshi, , the eviction petition is not maintainable. He also pointed out that ground No. 3 of the Revision petition is itself clear that the matter requires further elucidation.
3. It is not in dispute that the premises originally belonged to late Easwaraiah and he died intestate in the year 1964 leaving behind his widow, three sons and four daughters. Evidently, they are all class-I heirs and are entitled to a share in the premises. It is no doubt true that the revision petitioner has been collecting rents and he falls within the definition of landlord Under Section 2 (vi) of A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960, (for short, 'the Act'). The Rent Controller has held that the eviction petition is maintainable Under the premise that the revision petitioner is entitled to file the eviction petition as he fulfills the definition of landlord Under Section 2(vi) of the Act and hence he did not go into the question that was raised before him regarding maintainability in its proper perspective. This was again raised before the learned Chief Judge and he too did not deal with the question in its depth.
4. When a question arose whether a co-sharer can maintain eviction petition against a third party tenant without a co-sharer on record, a Division Bench of this Court in Damodaram Chetti's case (1 supra) held, "One of the joint owners or co-owners (of a building) can ask for eviction of a tenant who has been let in by both the owners (wife and husband) not with standing that the other co-owner (husband) or co-owners are not willing to join the plaintiff or the petitioner in asking for eviction and on the other hand, do not want the tenant to be evicted, provided such a co-owner or co-owners are made parties to the suit or petition. If this is not the law, cases can be envisaged where one of the co-owners in collusion with the tenant can affect complete dispossession of the other co-owner by merely getting the tenant to acknowledge his sole possession and title. When a co-owner is entitled to possession of immovable property in entirety along with the other co-owners it is not permissible for one of the co-owners, subsequently in league with the tenant to permit him to be in possession of the whole of the premises on behalf of himself alone which in effect will oust the other co-owners of the possession of the property to which he is of right entitled."
5. In Vasantrao Ankilkar's case (2 supra) my learned brother Y.V. Narayana, J. considered the case of an agent filing an eviction petition without the authorisation of the owner/owners and it has been held on interpretation of the definition of landlord Under Section 2( vi) of the Act and proper construction of Section 10(8) of the Act that an agent cannot maintain an eviction petition without obtaining a previous written consent of the landlord.
6. On a careful consideration of the ratio laid down by the Division Bench in the aforesaid judgment, there can be no doubt that an eviction petition by a co-sharer is not maintainable without impleading the remaining co-sharers. As regards the judgment cited 2 supra, it is evident that just as an agent being handicapped in filing eviction petition without previous written consent of the landlord one of the sharers also cannot maintain an eviction petition without the written consent of all other co-sharers. A close reading of the impugned judgment would go to show that these legal aspects have not been considered and hence the learned Counsel has rightly contended that the matter requires further elucidation and the ends of justice require that the matter should be remanded to the Lower Court.
7. Turning to the main ground on which eviction has been sought for, namely, wilful default in payment of rent, both the Courts below have concurrently found on appreciation of evidence that the ground of wilful default has been brought home to the hilt. Therefore, it may not be proper for a Court of Revision to go into that concurrent finding of fact. In this context, Sri Janardhana Rao brought to my notice a judgment in Dakaya v. Anjani, , wherein the ground of wilful default has been accepted by all three Courts and yet the Honourable Supreme Court taking humane aspects into consideration and the hardship that was going to be caused to the tenant directed enhancement of rent and continuance of the tenant in the same premises. Since the matter is being remanded to the Lower Court, it would be proper for me to leave this matter to be canvassed before the Lower Court and the Lower Court will be at liberty to dispose of the same in accordance with its discretion. I am, therefore, satisfied that the revision petition is merited and the impugned order is liable to be set aside and the matter is fit to be remanded to the Lower Court.
8. In the result, the revision petition is allowed and the impugned judgment is set aside and the matter is remanded to the learned Chief Judge, City Small Causes Court, Hyderabad, for giving opportunity to both sides to adduce such further evidence as they deem fit and to dispose of the matter afresh. It is made clear that the finding as to the wilful default remains undisturbed. The costs will abide by the result in the rent appeal.