Patna High Court
Sharfuddin And Ors. vs Bibi Khatija And Anr. on 6 July, 1987
Equivalent citations: AIR1988PAT58, 1988(36)BLJR53, AIR 1988 PATNA 58, (1987) PAT LJR 978, 1988 SCFBRC 87, 1988 BBCJ 1, (1988) BLJ 71, 1988 BLJR 53, (1988) 1 RENCR 549
Author: Lalit Mohan Sharma
Bench: Lalit Mohan Sharma
JUDGMENT S.S. Sandhawalia, C.J.
1. In Smt. Kanta Goel v. B. P. Pathak, AIR 1977 SC 1599 their Lordships, whilst reiterating the view in Sri Ram Pasricha v. Jagannath, AIR 1976 SC 2335, observed that the law had been put beyond all doubt that the absence of one of the other co-owners on the record does not in the least disentitle the plaintiff co-owner from suing and succeeding in the proceeding for the eviction of a tenant. They, however, observed that-
''We are not called upon to consider the piquant situation that might arise if some of the co-owners wanted the tenant to continue contrary to the relief claimed by the evicting co-owner."
That piquant situation foreshadowed by their Lordships seems to have now squarely arisen in the present case and calls for a direct answer. For the sake of precision, the issue, inter alia, in the present context may be formulated in the terms following : --
Whether under the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 one of the two joint co-owners can evict the tenant from the whole of the premises on the ground of the violation of Section 11(1)(d) of the said Act despite the desire and volition of the other co-owner to allow the tenant to continue in occupation?
In this second appeal referred to the Full Bench for an authoritative adjudication on the issue aforesaid, the facts need notice with relative brevity because of the firm findings of fact arrived at either concurrently or by the first appellate court. Admittedly the plaintiff and defendant 2 are co-owners in equal shares and landlords of the premises (being a two storeyed house situated in mohalla Khankah Alamganj Pulpar in the town of Biharsharif) from which eviction was sought by the plaintiff alone against the contesting defendant 1. The cause of action, inter alia, for the alleged non-payment of rent goes back to more than twenty-two years for the months of Dec. 1964 and Jan. 1965. The principal defendant 1, namely, Alijan Mian was the original tenant of the ground floor of the house abovesaid on the monthly rental of Rs. 60/- according to the English calendar and the rent of each month was payable on the 1st day of the following month. The aforesaid defendant 1 Alijan Mian having died during the pendency of the suit, his legal representatives were substituted in his place. It was the plaintiffs case that by agreement with defendant 2, namely, Bibi Maimuna Khatoon, the plaintiff invariably collected the entire rent from defendant 1. It was alleged that defendant 1 did not pay the rent of the said disputed house to the plaintiff since Dec. 1964. On the ground of nonpayment of rent for two months, the plaintiff on her behalf as well as on behalf of defendant 2 was entitled to evict the defendant 1 from the disputed house. A notice dated the 24th May. 1965 by registered post was duly served on defendant 1 terminating the tenancy of the disputed premises whilst defendant 2 was impleaded as a pro forma defendant.
2. In contesting the suit, defendant 1 took the plea that he had continued as a tenant of the premises for over twenty years. It was his case that the rent of the holding in dispute was being disputed betwixt the two co-owners, the information of which was given to the defendant tenant in the name of Sharfuddin, the son of Alijan Mian (the original tenant) by a notice dated 16th Dec. 1964. Thereafter the defendant 1 was paying Rs. 30/- being half of the rent of the holding in suit to defendant 2 and the other half of the same was tendered to the plaintiff which he refused to accept. It was claimed that the plaintiff wanted to realise the entire rent of the holding in suit to which he was not entitled. Since after the notice given to Sharfuddin, son of Alijan Mian, the plaintiff never collected the entire rent from defendant 1, and her share had been tendered and no wilful neglect in payment of rent had thus been made. It was the firm stand that the plaintiff alone had no right to evict the defendant tenant from the holding in suit in view of the other co-owner not only joining as a plaintiff but allowing the tenant to continue on the premises.
3. Defendant 2, Bibi Maimuna Khatoon, in her written statement specifically stated that the plaintiff collected the rent on her behalf but she collects only half of the rent from the defendant tenant which is to the extent of her own share and the plaintiff never collected the entire rent of the holding in suit. Defendant 2 thus separately collected the other half of the rent, i.e., to the extent of her half share from defendant 1. It was lastly stated that she has realised the rent of her own share, i.e., half of the actual rent from the defendant tenant and, therefore, no rent is due to her, from defendant 1 and, hence, the plaintiffs claim for the entire rent is totally false and there is no ground for the eviction of the tenant.
4. The trial court dismissed the plaintiff's suit. However, on appeal the first appellate court decreed the same. The matter was then carried to this court and in the appeal from the appellate decree the matter was remitted back to the court of appeal below to decide the matter afresh on the point whether the appellant plaintiff alone had the right to maintain the suit by herself and secondly on the point of default in the payment of rent also. In the light of the orders of this Court, the first appellate court rightly noticed that after remand there were only two points for determination, namely, ji) whether the respondent defendant 1 has defaulted in payment of rent and (it) whether the appellant plaintiff as co-owner alone can sue for eviction. On point 1 the first appellate court held categorically that it was crystal clear that defendant 1 was a defaulter within the meaning of Section 11(1)(d) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (hereinafter to be referred to as the 'Act'). On point 2 the learned Additional Subordinate Judge came to the conclusion that even one co-owner of the suit premises can sue for eviction on the ground of non-payment of arrears of rent. On these findings the appeal was allowed with costs and defendant 1 was directed to put the plaintiff appellant in possession of the suit premises within thirty days from the date of the order.
5. At the time of admission, the following question was formulated : --
"Whether on the facts and in the circumstances of the case can a co-owner evict a tenant from the suit premises, although moiety share of rent has been duly paid by the other co-sharer (a defendant in the suit)?"
The case originally came up for hearing before my learned brother, L. M. Sharma, J., sitting singly on the 27th Nov. 1984. The case was then directed (vide the reference order) to be heard by a Division Bench in view of the significance of the issue and the paucity of direct precedent on the point. Before the Division Bench again it came to be noticed that in Smt. Kanta Goel v. B. P. Pathak, (AIR 1977 SC 1599) (supra) the issue was visualised but not decided and was not free from difficulty and because of its frequent occurrence merited an authoritative adjudication by a larger Bench. That is how the matter is now before us.
6. Perhaps at the very outset it may be noticed that the crucial question herein has necessarily to be viewed and construed in the context and mosaic of the express statutory provisions applicable. It is common ground that in view of the long and chequered history of this litigation the Act applicable is the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947. The relevant and, indeed, the only provision thereof directly applicable herein is Section 11(1)(d), which is in the terms following : --
"Eviction of tenants. -- (1) Notwithstanding anything contained in any contract or law to the contrary but subject to the provisions of the Industrial Disputes Act, 1947 and to those of Section 12, where a tenant is in possession of any building, he shall not be liable to eviction therefrom except in execution of a decree passed by the Court on one or more of the following grounds : --
XXX XX
(d) Where the amount of two months rent lawfully payable by the tenant and due from him is in arrears by not having been paid within the time fixed by contract or, in the absence of such contract, by the last day of the month next following that for which the rent is payable or by not having been validly remitted or deposited in accordance with Section 13;....."
However, it deserves pointed notice that the provisions aforesaid are admittedly in pari materia with Section 11(1)(d) of the later Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982. As a necessary consequence, the principle and ratio of the decision of this case would be attracted and apply equally to cases under Section 11(1)(d) of the 1982 Act as well.
7. Ere one comes to deal with the primal question formulated at the outset, it is perhaps apt to first clear the decks of the subsidiary and colateral issues. Perhaps faced with the uphill task of succeeding in this appeal on the existing present record, a claim of despreation on behalf of the appellant was first made for admitting additional evidence herein. An application under Order 41, Rule 27 of the Civil P.C. (hereinafter to be called the 'Code') has been preferred on behalf of the appellant on 31st Oct. 1986 praying therein that Annexures 1 and 2 thereof be admitted as additional evidence at this stage. It is averred and suggested in the said application that during the pendency of the present appeal the right, title and interest of the plaintiff was auction-sold on the 15th April, 1985 in pursuance of the execution proceedings of an ex parte decree in Money Suit No. 34 of 1982. In the auction proceedings the appellant claims being the highest bidder and had deposited the entire money within time and the sale was later confirmed by the court (vide Annexure-1 to the petition) and a sale certificate subsequently issued (vide Annexure-2 thereto). On these premises it was sought to be contended that the sole plaintiff respondent had lost all right, title and interest in the property.
8. Even upon the widest and the most liberal construction of Rule 27 of Order 41 for admitting additional evidence in the context of concluded findings of fact in a second appeal having a long drawn out history, it appears that there is not the least merit in the application aforesaid. A rejoinder (at flag T') has been filed on the 6th Nov. 1986 on behalf of the plaintiff respondent to this application. Therein it is the uncontroverted stand that in Miscellaneous Case No. 11 of 1985 under Order 9, Rule 13 of the Code for setting aside the ex parte decree the same has been set aside on the 30th Aug. 1986 (vide annexure-A to the rejoinder). It is averred that no appeal against the order of setting aside the ex parte decree has been filed which has become final and further that the plaintiff respondent has filed a petition under Section 47 and Order 21, Rule 90 of the Code for setting aside the auction sale and its subsequent confirmation and the sale certificate issued. In these proceedings the court below has further ordered the stay of the confirmation of the sale. It is also the case that respondent plaintiff has filed a petition under Section 151 of the Code for restoration of Miscellaneous Case No. 34 of 1985 within the period of limitation and the said miscellaneous case is still pending decision. On all these virtually undisputed facts it is forcefully pointed out that the very ex parte decree having been set aside and the auction sale and the sale certificate pursuant thereto being yet under challenge before the court below, the same have as yet no value in the eye of law.
9. It is manifest from the aforesaid proceedings that herein the ex parte decree has undisputedly been set aside and both the sale and the confirmation thereof and the issue of sale certificate are as yet the subject-matter of tangled litigation and are in the ferment of judicial adjudication in the court of first instance. They have thus no value or finality worth the name to provide the alleged basis for additional evidence sought to be brought on the record. Consequently to my mind there appears no question whatsoever of admitting any additional evidence in these circumstances in the light of Rule 27 of Order 41 and the application must necessarily be rejected.
10. Mr. Chuni Lal, the learned counsel for the appellant, with his illimitable fairness, did not attempt to assail the findings of fact arrived at by the first appellate court in this second appeal and equally conceded that the question of a notice under Section 106 of the T. P. Act is now irrelevant to the issue in view of the authoritative decisions of the Supreme Court on the point. The only two issues that thus remain are with regard to the question whether on the findings of fact arrived at by the appellate court there was default in the payment of rent in the eye of law. Secondly, the core issue is whether one co-owner under the Act can evict the tenant from the tenanted premises whilst the other wishes to retain him on the whole of the said premises.
11. Adverting to the first question, it is the admitted case that under the contract of tenancy the plaintiff was originally collecting the whole of the rent of Rs. 60/- per mensem on behalf of both the co-owners up to December, 1954. On the basis of an alleged notice having been given by defendant No. 2 to one of many heirs of the original tenant Alijan Mian, a claim is made on behalf of the appellant to give a go by to the settled mode of payment of rent to the sole plaintiff respondent. Thereafter only one half of the rent of Rs. 30/- was allegedly paid to defendant 2 for the two months of Dec. 1964 and January, 1965 and no payment whatsoever therefor was made to the plaintiff. The firm finding in this regard has been arrived at concurrently in para 10 of the first appellate court judgment in the following terms : --
"As such the plaintiff appellant was not getting even half of the rent i.e., Rs. 30/- since the month of Dec. 64 because there is no whisper in the record to show that defendant respondent 1 has paid or remitted or deposited the rent for the month of Dec.
1964 and Jan. 1965 by the last day of Feb.
1965 as provided by the said Act. Therefore, from the facts it is crystal clear that defendant respondent No. 1 was a defaulter within the meaning of Section 11(1)(d) of the said Act."
12. In the light of the aforesaid categoric finding, Mr. Chuni Lal, the learned counsel for the appellant, had tenuously attempted to first clutch at a straw by contending that when defendant 2 gave notice to one of the heirs of Alijan Mian (the original tenant), the plaintiff respondent did not immediately raise any objection thereto and must be, therefore, assumed to have acquiesced in the same. This has only to be noticed and rejected. There is not the least evidence that the plaintiff respondent was even in the know of any notice by defendant 2 to one of the heirs of the original tenant. Equally at no stage did the plaintiff respondent accept any part payment of the rent and admittedly no rent whatsoever was even lawfully tendered to the plaintiff respondent for the months of Dec. 1964 and Jan. 1965 and equally later in February and March when half of the rent was sought to be tendered, it was peremptorily refused. There was thus the clearest repudiation by the plaintiff respondent of any splitting of the rent and no question of novation by acquiescence would arise in the case. Indeed, the learned counsel for the appellant did not seriously persist in the stand and ultimately conceded that he could not challenge the firm findings of fact on this point.
13. The somewhat ingenious and tall argument which Mr. Chunni Lal attempted to raise in this context was that even if the payment of his share of rent for the relevant months is accepted by one of the many co-owners, there would still be no default for the purposes of Section 11(1)(d). On that premise counsel submitted that since defendant 2, the other co-owner had accepted her share of the half of the rent, namely, Rs. 30/- for the months of December, 1964 and January, 1965, there was in the eye of law no default at all. Learned Counsel, however, had fairly conceded that he could cite no authority in support of this somewhat novel proposition.
14. The aforesaid stand has naturally been frontally foiled and challenged by Mr. Sinha, the learned counsel for the respondent. He forcefully argued that the law does not envisage any unilateral splitting up of the rent by the tenant on his own volition amongst the co-owners where there is a single contract of tenancy and the more so where the mode of payment of the whole amount to the plaintiff respondent was virtually the admitted position. The core of Mr. Sinha's submission is that there can possibly be no splitting of either the tenancy or the rent unilaterally by either of the parties to the contract. Counsel herein rightly highlighted that despite the limitations put on it by the Act and rent legislation the relationship of landlord and tenant basically remained contractual and is rooted in the bilateral agreement of the parties. Inevitably, therefore, (unless expressly provided by the statute otherwise) a bilateral contract can neither be overriden nor violated unilaterally. If at all there has to be a novation, it must be bilateral and not whimsically unilateral at the instance of one or merely some of the parties thereto. Mr. Sinha rightly contended that it was the admitted case herein that the original tenancy was a single one and the rent was paid and collected by the plaintiff respondent for the whole of the decade prior to December, 1964. Therefore, a mere unilateral notice (Ext. C) of one co-sharer without even the knowledge of the plaintiff respondent could not vary or override the established and admitted contract. The contract rent was payable and had to be paid to the plaintiff respondent alone, and it was earlier so done. Admittedly, after December, 1964 and January, 1965 the rent was not paid to the plaintiff and thus contract was plainly breached and default made in the payment and tender of rent. What was further pointed out is that it is not the case that the whole of the rent of Rs. 60/- was even paid to defendant 2. Even otherwise, any payment to defendant 2 in clear and plain violation of the established contract was a breach thereof and illegal. It was in essence no payment at all in the eye of law. Consequently, default under Section 11(1)(d) is writ large on the face of the record and has been so rightly and categorically held by the first appellate Court. In support of this proposition counsel rightly relied on Dhaneshwar Choudhary v. Subodh Kumar Sett, AIR 1967 Cal 334 wherein it was held as under : --
"Mr. Ray appearing on behalf of the appellants contended that unless there is a contract which permits the plaintiffs to realise separately the rent due in their one-third share, no decree can be passed in the suit as that would have the effect of allowing a unilateral splitting up of the contract In support of this contention, he has referred to the case of Radhabinode Mondal v. Naba Kishore Mondal 30 Cal WN 413 : AIR 1926 Cal 578. That was a case similar to the one we are dealing with. There the plaintiff and his brother were joint owners of one-third of an estate and the plaintiff sued the defendant for his one-sixth share of the rent. It was held that the plaintiff was not entitled to enforce his claim to the one-sixth share of the rent as against the tenants without their consent and it was further held that the plaintiff might sue for the enforcement of the entire contract with him and his brother by making his brother a party defendant, but he was not entitled to enforce a part of the contract between himself and his brother on the one hand and the tenants on the other. On these findings, that suit was dismissed. Here, in this case the plaintiffs have prayed for realisation of rent due in their one-third share making the co-sharers pro forma defendants. In view of the decision above, it must be held that the present suit as framed is not maintainable, even though the co-sharers of the plaintiffs might have been impleaded as pro forma defendants in the suit, the underlying of rent is not liable to be split up at the will of a co-sharer landlord."
15. I am in firm agreement with the aforesaid enunciation of the law and the aforenoted stand taken by Mr. Sinha on behalf of the respondent. Therefore the tenuous contention ingeniously attempted to be raised by Mr. Chunni Lal concededly without the support of any precedent and what appears to be as without any logical principle must necessarily be rejected.
16. In fairness to Mr. Chunni Lal, one must also notice what appears to me as even a more extreme and consequently a more untenable stand. Counsel attempted to argue that even if any part or token payment of rent for the month due is made by the tenant or accepted by any one of many co-sharers then in terms of Clause (d) of Section 11(1) of the Act there is no default according to him. In sum, the argument was that the default or arrears under the clause aforesaid meant a total or absolute default in the sense that no payment whatsoever for either of the two prescribed months by the statute had been made. Thus, according to counsel, any token payment against the monthly rent due and that too to any one of the co-owners was adequate to ward off the liability of eviction under Section 11(1)(d) of the Act. Mr. Chunni Lal, however, was fair enough to concede that barring his bald assertion he could cite no authority whatsoever (in the vast mass of the precedent on rent laws) holding to this effect.
17. To my mind, the contention aforesaid has only to be noticed and rejected. One of the pristine tests of an argument is to put it in the crucible of extending it to its logical length. On this litmus test, Mr. Chunni Lal was forced to the extreme length of submitting that even for a premises having a rental of Rs. 10,000/-per mensem if a token amount of Rs. 10/- or, for that matter, of Re. 1/- was tendered to and accepted by any co-owner there would nevertheless be no default in the payment of rent for the month. I believe the extreme logical length of this submission highlights its fallaciousness and the answer to the proposition must be rendered in the negative and indeed calls for no great elaboration. However much it may be said that rent laws are intended to protect the tenant, still they cannot be carried to any such length of absurdity. This aspect has been rightly highlighted by the final Court itself in AIR 1980 SC 161 (at page 165) : Kewal Singh v. Mt. Lajwanti, as hereunder : --
".....Before discussing the relevant provisions of the Act it may be necessary to observe that the Rent Control Act is a piece of social legislation and is meant mainly to protect the tenants from frivolous evictions. At the same time, in order to do justice to the landlords and to avoid placing such restrictions on their right to evict the tenant so as to destroy their legal right to property certain salutary provisions have been made by the legislature which give relief to the landlord. In the absence of such a legislation a landlord has a common law right to evict the tenant either on the determination of the tenancy by efflux of time or for default in payment of rent or other grounds after giving notice under the Transfer of Property Act. This broad right has been curtailed by the Rent control Legislation with a view to give protection to the tenants having regard to their genuine and dire needs. While the rent control legislation has given a number of facilities to the tenants it should not be construed so as to destroy the limited relief which it seeks to give to the landlord also....."
In the light of the aforesaid enunciation clearly under Section 11(1)(d) the monthly rent has to be paid or tendered and in the event of arrears for two months the liability of eviction is attracted under the statute. That categoric right in favour of the landlord expressly given by the statute is not to be whittled down or obliterated in any doctrinaire theory of a slanted approach to the construction of the rent statute. Can it be said, as in the aforequoted example, that even a token payment of Re. 1/- being accepted by one of the many co-owners in part payment of rent for each month, thus raising it to a mere total of Rs. 2/- only for two months, would leave no arrears under Section 11(1)(d) though the rent for the premises may be to the tune of Rs. 20,000/- for the two months and may thus primarily be outstanding as a whole? To my mind, Section 11(1)(d) does not permit the acceptance of Re. 1/- as token payment by one of the co-owners to absolve the tenant from the penalty resulting from arrears and consequent eviction under the aforesaid provisions. The statute herein must be given a rational meaning and clearly enough a payment less than the rent due would be adequate in the eyes of law to leave arrears in terms of Clause (d) of Section 11(1). To my mind, the specious argument that acceptance of token amount of one rupee against a monthly rent due by any one of the co-owners would absolve the tenant from all defaults under Clause (d) is an argument of desperation which must necessarily meet its fate of failure.
18. Yet another limb of the submission in this context raised by Mr. Chunni Lal is equally tenuous. He has contended that if one co-owner has been paid his share of the rent due no eviction decree can be passed under the Act. It was sought to be submitted that if the relationship of landlord and tenant may be deemed to subsist with even one of the many owners (merely because of the payment of his share of the rent to such co-owner) it would continue to subsist qua all the remaining co-owner and no eviction decree was then possible. It was submitted that perhaps in that event a joint decree for possession in favour of all the co-owners may be passed but an eviction decree from the whole of the premises at the instance of one co-owner was an impossibility.
18A. Though learned counsel for the appellant may be complimented for his ingenuity, the argument nevertheless remains fallacious and untenable The submission that payment to one co-owner alone of his share of the rent would bar a decree of eviction under Section 11(1)(d) appears, on the face of it, to be first illogical and otherwise capable of leading to an anomalous and mischievous results. If it were to be so held, then in premises which has co-owners the tenant may choose to tender one-tenth of the rent to one of the co-owners and deprive the other nine altogether and leaving them with no remedy worth the name under the Act. Equally on these premises one co-owner out of twenty may collude with the tenant and thus fraudulently oust the others not only from the payment of rent but also from the right of eviction expressly provided under the Act. Learned counsel for the appellant had rightly conceded that he could cite no authority for this novel proposition.
19. The theory of a joint decree for possession in favour of all the co-owners being passed and no eviction under Section 11(1)(d) being possible is patently without merit. Herein we have to consider the matter within the framework of the Rent Act. It is impermissible and illogical to travel beyond the clear and detailed statutory provision of Section 11 of the 1947 Act. Reference to the general civil law of landlord and tenant after the super-imposition of the statutory rent law thereon is not only uncalled for but, in my view, would be wholly misleading. It is well known that, unless the provisions are pari materia, a precedent with regard to one provision can possibly have no relevance to the other. Herein the general civil law of landlord and tenant and the remedies open thereunder are now poles apart from the statutory imposition of conditions under the Rent Act, 1947 and the bar on eviction imposed within the narrow parameter of Section 11 thereof. Calling in the aid of concept of a joint decree in favour of all co-owners in civil law is thus wholly irrelevant to the issue. Therefore, the judgments sought to be relied upon by learned counsel for the appellant in this context, namely, (i) (1888) ILR 10 All 166 (PC); (Zain-ul-Abdin Khan v. Muhammad Asghar Ali Khan), (ii) (1908) ILR 35 Cal 807; (Gopal Ram Mohuri v. Dhakeshwar Pershad Narain Singh), (iii) AIR 1934 PC 58; (Baraoni Coal Concern v. Gokulananda), (iv) AIR 1942 Pat 391; (Raj Kishore Prasad Narain Singh v. Mojibul Rahman) and (v) AIR 1979 Cal 367 (Dr. Amar Prosad Gupta v. Arun Kumar Shaw) have not the least relevance and are entirely wide of the mark.
20. The deck having been cleared of the subsidiary and collateral issues one may now come to the primal and the ticklish question which their Lordships rightly described as the piquant situation w hether one of the many co-owners can evict the tenant from the premises under the Act when one co-owner either colludes or desires to allow the tenant to continue in occupation. Plainly enough, herein the firm stand of the learned counsel for the appellant, Mr. Chunni Lal, was that in the event of there being two or more co-owners or co-landlords, one of them cannot evict the tenant from the premises if anyone of the other co-owners wanted the tenant to continue.
21. Since it appears to me that apart from principle, the issue is covered by binding precedent, it is apt to proceed from the point of the two pole-star precedents of the final Court. In AIR 1976 SC 2335, Sri Ram Pasricha v. Jagannath, their Lordships were construing a somewhat analogous provision of Section 13 of the West Bengal Premises Tenancy Act. It was contended before their Lordships that under Section 13(i)(f) of the aforesaid Act the landlord means the absolute owner of the premises and since there were other co-sharers or co-owners of the premises, the plaintiff alone could not file the suit for eviction. It was further sought to be argued that one of the co-owners of the premises could not claim the premises on the basis of the needs for the personal use and occupation thereof of the other co-owners as well Categorically repelling these contentions their Lordships held as under : --
"Jurisprudentially it is not correct to say that a co-owner of a property is 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 will change only when partition takes place. It is, therefore, not possible to accept the submission that the plaintiff who is admittedly the landlord and co-owner of the premises is not the owner of the premises within the meaning of Section 13(1)(f). It is not necessary to establish that the plaintiff is the only owner of the property for the purpose of Section 13(1)(f) as long as he is a co-owner of the property being at the same time the acknowledged landlord of the defendants.
.....
We are of the opinion that a co-owner is as much an owner of the entire property as any sole owner of a property is."
22. The aforesaid enunciation is categorical enough, yet if any ghost of doubt remained the same was set finally at rest by the later reaffirmance of the view in AIR 1977 SC 1599; Smt. Kanta Goel v. B. P. Pathak. Therein what fell for construction were the provisions of Delhi Rent Control Act and the question was whether one coheir of the deceased landlord would sue for eviction in the absence of other co-heirs. Answering the question in categorical affirmative Krishna Iyer, J. speaking for the Court, observed as under : --
"This Court in Sri Ram Pasricha, (1976) 4 SCC 184 : AIR 1976 SC 2335 clarified that a co-owner is as much an owner of the entire property as any sole owner of the property is: "Jurisprudentially, it is not correct to say that a co-owner of property is 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..... It is, therefore, not possible to accept the submission that the plaintiff who is admittedly the landlord and co-owner of the premises is not the owner of the premises within the meaning of Section 13(1)(f). It is not necessary to establish that the plaintiff is the only owner of the property for the purpose of Section 13(1)(f) as long as he is a co-owner of the property, being at the same time acknowledged landlord of the defendants". That case also was one for eviction under the rent control law of Bengal. The law having been thus put beyond doubt, the contention that the absence of the other co-owners on record desentitled the first respondent from suing for eviction fails. We are not called upon to consider the piquant situation that might arise if some of the co-owners wanted the tenant to continue contrary to the relief claimed by the evicting co-owner."
23. In accord with the above, a Division Bench whilst construing the analogous provision of Section 13 of the East Punjab Rent Restriction Act in Mathura Dass v. Smt. Ram Piari, AIR 1982 Punj and Har 286 has held as under : --
"To conclude, both on principle and precedent the answer to the question posed at the outset is rendered in the affirmative and it is held that even one of the many co-landlords can singly maintain an application for ejectment against his tenant under the Act."
24. To my mind, it appears that once the final Court has held categorically that one co-owner can singly maintain a suit for eviction under the rent law, it inevitably follows that he can maintain it successfully. It is difficult, if not illogical, to draw any finical distinction that though the single co-owner can maintain the suit, yet in the event of one of the co-owners colluding with the tenant or desiring his continuance the same would raise a legal bar for evicting the tenant who undoutcdly has incurred the liability of such eviction under the rent law. If a single co-owner can otherwise maintain a suit for eviction against the tenant, then on principle there seems no reason why the same ratio would not apply in the event of one of the many co-owners colluding or siding with the tenant. If the law as now settled by the Supreme Court does not even require impleading of all other co-owners as plaintiffs or defendants, it would be illogical to suggest that he can maintain the suit but get no meaningful relief.
25. To my mind, collusion or consent by one of the co-owners for the continuance of a tenant who has otherwise clearly incurred the liability of eviction under the law can and should make no difference to the rights of the other co-owners to eject him from the property. Once the tenant incurs the disability of being evicted under the express, though limited, conditions provided therefor under the rent law, then the same are not to be nullified unilaterally by the collusion of one of many co-owners. A single co-owner out of ten or twenty has no veto over the other body of co-owners for the continuance of a tenant otherwise liable to eviction under the law. Holding so, as noticed above, would not only give him a kind of veto but also a power to override and nullify the provisions of the law itself which confer the right on the landlord either as a body or singly to evict him. I do not think that the volition of a single co-owner in collusion with a defaulting tenant would warrant any such legal result.
26. Apart from precedent, on principle four situations may be visualised as arising in this context, firstly, where all the co-owners join as plaintiffs in the suit; secondly, where one co-owner alone prefers the suit whilst the others are consenting parties thereto; thirdly, where one co-owner prefers the suit and impleads the others as pro forma defendants; and fourthly, where one or some of the co-owners files the suit but one of the co-onwers colludes with the tenant to resist the same. There is no manner of doubt on existing precedent that in all the first three cases, the suit can be successfully maintained against the defaulting tenant. To my mind, the identical principle would apply to the last and the fourth category as well. Herein, what calls for notice is that eviction may not only be sought for non-payment of rent under different statutes but equally for breach of the conditions of the tenancy, for subletting, for personal necessity, and even for wasting or damaging the demised premises. In particular Section 11(1)(b) of the Act is in the following terms :
"Where the condition of the building has materially deteriorated owing to acts of waste by, or negligence or default of, the tenant, or of any person residing with the tenant or for whose behaviour the tenant is responsible."
If the argument canvassed on behalf of the appellant were to be accepted, then one out of the hundred co-owners may collude with the defaulting tenant and allow the whole property to deteriorate by acts of waste, negligence or default of a recalcitrant tenant whilst the whole body of the remaining co-owners must remain silent and impotent spectators of such waste because they cannot secure a decree of eviction even on the flagrant violations of the conditions under Clause (b) aforesaid I do not think that any such anomalous and indeed mischievous situation is either envisaged by the law under the statutory provisions like Section 11 of the Act or can possibly be tenable on principle.
27. Learned counsel for the appellant had attempted to wriggle out of the illogical and anomalous results of his stand by contending that in such a situation the co-owners must first secure a partition decree of the demised premises and then alone could each co-owner sue for eviction from his specified share of the property. This submission in itself highlights the absurd length to which the legal situation would have to be carried merely because of the collusion of one of the many co-owners with a tenant. On the appellant's stand, the whole substratum of the owner-landlord's right to evict under the rent law would evaporate if one of the co-owners chooses to collude or connive with a defaulting tenant and the sole solution thereto would be first a suit for partition betwixt the co-owners and after the final decree alone would eviction be possible from the premises and that too for the demarcated shares in the partition. The argument of the learned Counsel for the appellant, in sum, leads to the result that the tenant with the collusion of one co-owner would push the whole remaining body of the other co-owners into first a partition suit inter se and then only after the final decree sue for eviction from their respective shares. Such a situation in the eye of law is not to be easily conceived nor succumbed to by a process of strained interpretation.
28. In fairness to Mr. Chunni Lal, one must also notice his ingenious agrument that if one co-owner secures a decree for eviction against the volition or desire of the other co-owner, it would amount to the deprival of the co-owner colluding with the tenant of his right of possession. The supposed theory of deprival of a co-owner has only to be not iced and rejected. It is settled beyond cavil in tbe eye of law that a co-owner in possession jurisprudentially holds every bit of the joint property for himself and his co-owners. Consequently when instead of the defaulting tenant the co-owner assumes possession under a decree of possession, then in the eye of law, all the co-owners assume the possession of the demised premises, far from there being any deprivation of any other co-owner of his right of ownership and possession, indeed, it is the true culmination of both the possessory and the ownership right in jointness. Mr. Sinha for the respondents rightly pointed out that it is unwarranted and absurd to assume that a co-owner securing possession under a decree of eviction would deny possession to the other co-owners. The true presumption in law is otherwise, namely, that he would abide by his own rights and that of his co-owner in jointness with whom he holds every bit of such joint property. Therefore, the theory that eviction by one co-owner of a defaulting tenant who has forfeited his right under the rent statute involved any deprivation of the other co-owners is, to my mind, a classic example of first raising a ghost to camouflage the issue and then attempting to kill it.
29. Assuming entirely for the sake of argument, on the basis of the supposed theory of deprivation (which as shown above is based on a false and untenable assumption that a co-owner would intend to deprive his other co-owner of his possession) it appears that even on those premises there would arise the rival question of deprival. The issue is whether a tenant colluding with only one of the hundred co-sharers can deprive the other ninetynine of their right to possession over the joint property expressly accruing to them under the rent laws. If one has to make choice, on principle I would certainly opt for the proposition that one co-owner cannot deprive his other co-owners of the right of possession, But, one is not compelled to make any choice because binding precedent has now laid down unequivocally in Sri Ram Pasricha's (AIR 1976 SC 2335) and Smt. Kanta Goel's (AIR 1977 SC 1599) cases that one co-owner landlord can maintain the suit and succeed by himself in a suit for eviction. The question in a way is thus beyond the pale of controversy.
30. The matter is, perhaps, equally worthy of being viewed from another refreshing angle There is a long and hoary line of precedent that one co-sharer can maintain a suit for eviction alone against a trespasser. It is not necessary to delve beyond the case of Ahmad Sahib Shutari v. Magnesite Syndicate Limited, AIR 1915 Mad 1214(1) where it was so held authoritatively and has been unhesitatingly followed thereafter in Maganlal Dulabhdas v. Bhudar Purshottam, AIR 1927 Bom 192, Tuljaram Harkishondas v. Harkisan Jagjiwan, AIR 1929 Bom 244, Bashir Ahmad. v.
Parshottam, AIR 1929 Oudh 337, Sheotahal Dube v. Lal Narain Prasad Chand, AIR 1931 All 695 and Shambhu Gosain v. Piyari Mian, AIR 1941 Pat 351. Within this jurisdiction, the issue is settled beyond doubt by the Full Bench in Ram Niranjan Das v. Loknath Mandal, AIR 1970 Pat 1, holding unequivocally that a single co-owner can maintain a suit for eviction and recovery of possession against a trespasser without the necessity of bringing other co-owners either as co-plaintiff or defendants. That principle, to my mind, is attracted by way of analogy in the present situation as well Learned counsel for the appellant had attempted to draw a finical distinction between a tenant liable to eviction under a rent law and a trespasser. It is true that perhaps the position is not identical, but the distinction sought to be drawn is one without much legal difference. It is well to recall that in AIR 1927 Bom 192, the Division Bench relying on earlier precedent had observed :
"The case of a person, who is a tenant on sufferance, is akin to the case of a trespasser. It has been held in the case of Shutari v. Magnesite Syndicate Ltd. that one co-owner can maintain an action to eject a trespasser who has been holding over wrongfully. The case of Gopal Ram Mohuri (1908) ILR 35 Cal 807, which has been relied, upon on behalf of defendant 1, does not favour his contention. On the contrary there are observations in the case which go to show that in the case of a trespasser the rule, as to consent of a co-owner being necessary to eject a tenant or to enhance his rent, would not apply.
.....
It may be pointed out, however, though it should hardly be necessary to do so, that the plaintiff could get possession in the suit not only for himself, but really for the benefit of the co-owners, and it is in that sense that we hold the plaintiff to be entitled to a decree for possession. We are not concerned in this suit with the rights of the co-owners inter se after the plaintiff has obtained possession of the property from defendant 1."
Yet again, in Moti Lal v. Basant Lal, AIR 1956 All 175 it was observed-
"Since the tenancy of the appellant was determined by notice by both the owners of the shop, it came to an end The possession of the appellant was no better than that of a trespasser and this fact was confirmed by the decree of the learned Munsif. The compromise could not and did not change the status of the appellant which was no other than that of a trespasser. One of the co-sharers is quite competent to eject a trespasser even though the other co-sharer does not join."
31. In the light of the above, the additional analogy of the settled rule with regard to a trespasser would be equally attracted in the case of a tenant under the rent laws who because of the violation of the provisions of the statute has forfeited his right to possession and is liable to eviction.
32. In fairness to Mr. Chunni Lal, one must notice that there is no gainsaying the fact that the case of Nanalal Girdharlal v. Gulamnabi Jamalbhai Motorwala, AIR 1973 Guj 131 (FB) does go substantially in favour of the tenant. However, it is equally manifest that the same is now in headlong conflict and contrary to the ratio in Sri Ram Pasricha (AIR 1976 SC 2335) and Smt. Kama Goel's case (AIR 1977 SC 1599) (supra). In para 19 of the Gujarat's case, their Lordships whilst dissenting from authoritative views noticed above observed as follows : --
"A co-owner receiving rent on behalf of himself and the other co-owners or a rent-farmer or a rent-collector is therefore not entitled to recover possession of the premises on the strength of the artificial definition of 'landlord' in Section 5(3). (of the Bombay Rents, Hotel and Lodging House Rates Control Act)."
The aforesaid view is now frontally contrary to what their Lordships of the Supreme Court concluded in Smt. Kanta Goel's case as under: --
"The law having been thus put beyond doubt, the contention that the absence of the other co-owners on record disentitled the first respondent from suing for eviction, fails."
It is patent that the two ratios cannot possibly stand together. Secondly, it is to be noticed that the Gujarat case was noticed in Sri Ram Pasricha's case and after distinguishing the same it was held that a single co-owner could maintain the suit for the eviction of the tenant It bears reiteration that in the later Smt. Kanta Goel's case, their Lordships did not refer to the judgment and had arrived at a conclusion primarily contrary thereto, as quoted above. To my mind, on the specific point it appears somewhat plain that AIR 1973 Guj 131 is no longer good law in view of the subsequent Supreme Court decisions.
33. In the light of the foregoing discussion, the answer to the primal question posed at the outset is rendered in the affirmative. On principle and precedent it is held that under the Act one of the joint co-owners can evict the tenant from the whole of the premises on the ground of the violation of Section 11(1)(d) of, the said Act despite the desire and volition of the other co-owner to allow the tenant to continue in occupation.
34. Once it is held, as above, it is plain that the wind is taken out of the sails of the primal contention raised on behalf of the appellant which indeed had necessitated this reference to the larger Bench. The ancillary and collateral submissions of the appellant have already been considered and rejected earlier. The judgment and decrees of the first appellate court are hereby affirmed and this appeal hereby fails and is dismissed with costs.
Lalit Mohan Sharma, J.
35. If one of the cosharer-landlords resists an action of another cosharer-landlord to evict the tenant from a building covered under the Bihar Buildings (Lease, Rent and Eviction) Control Act, who was regularly and legally inducted therein, the plaintiff must, in my view, fail. If the plaintiff is allowed to succeed in such a situation, the eviction of the tenant would amount to dispossession of the other landlord, which is not permissible in law. His remedy is by way of a suit for partition and exclusive possession of the portion allotted to him.
36. The relevant facts have been stated by Hon'ble the Chief Justice in his judgment. At the outset, I must point out that the question is wide open in absence of a decision of the Supreme Court and cannot be treated to have been settled by any earlier binding decision of this Court, as is clear by the observations in Kanta God's case (AIR 1977 SC 1599).
37. In view of the attitude of the defending cosharer-landlord, he becomes a vital party in the suit and the issue between him and the plaintiff is dependent on the rights and liabilities of cosharer-owners of the property, which has to be determined under the general law. The Buildings Control Act does not deal with this subject and it is, therefore, not possible to resolve any dispute between cosharers of a building by a reference to the Act. The provisions of the Act are confined to the relationship of landlord and tenant and their rights and Habilites; and, even this aspect is not exhaustively covered Let us consider a case where the landlord claims a decree against the tenant for damages to the building. The dispute cannot be settled without reference to general law. Again, for adjudicating upon the claim of a person of having become a tenant of a building in pursuance of an agreement between him and the landlord which is denied, the other branches of law beyond the Act cannot be excluded If the contract relied upon is in writing, the law of registration of documents may have to be considered. If facts permit, the claimant may rely on the principle of holding over or on his factual induction in the building as a tenant. The illustration can be multiplied. I, therefore, do not agree that a dispute between a landlord and a tenant has to be resolved exclusively under the Act, The general law, of course, will have no application to such matters which are covered by the Act; but if a question arising in a case cannot be answered by reference to the provisions of the Act, the general law will have to be applied So far an issue arising between cosharer landlords is concerned it is clearly beyond the purview of the Act and has to be resolved under the general law: I, therefore, hold that the decisions dealing with the general law on such question which are not covered and therefore cannot be answered by reference to the provisions of the Act are not irrelevant and cannot be ignored.
38. When a tenant is duly inducted in a building by the landlords, he occupies the same on behalf of all of them. In law, the landlords are in possession of the building through him. On the basis of this principle it has been held that a tenant cannot acquire t itle to the property by remaining in possession for 12 years or more. In this context, I am tempted to refer to a decision of the Privy Council where a trespasser prescribed good title to a property on the strength of actual physical possession of the rightful owners themselves inducted as lessees. The disputed land in the reported case of Secretary of State v. Krishnamoni Gupta (1902) ILR 29 Cal 518 (PC) actually belonged to a Mozumdar famity but was wrongly treated as Government land in 1859. The Mozumdars obtained settlements thereof from time to time and occupied the land and paid rent. After the expiry of the settlements, the Government dispossessed the Mozumdas in 1885 and the latter instituted the suit which was finally decided by the Privy Council. Dealing with the plea of limitation put forward on behalf of the Government defendant appellant, the Privy Council observed as follows :
"It may at first sight seem singular that parties should be barred by lapse of time during which they were in physical possession and estopped from disputing the title of the Government. But there is no doubt that possession of the tenant is in law possession of the landlord .....Indeed in such a case it may be thought that the adverse character of possession is placed beyond controversy."
Thus, the true owners by their own possession in the capacity of tenants of others may destroy their title on the principle that the possession of a tenant is the possession of the landlord under whom he claims his tenancy. I have, therefore, no hesitation in holding that in the present case the plaintiff and the defendant 2 have been in possession of the property through the defendant 1. Since their house is still joint, the plaintiff as well as the defendant 2 must be treated to be in possession of every portion thereof. The defendant 1 has not and is not repudiating their title. The defendant 2 has indicated his intention in express terms to remain in possession thereof through the tenant He is not liable to be evicted by anybody, be he his cosharer. As to the manner in which he should enjoy the joint property, no body can dictate terms to him and that is the position with respect to the plaintiff also. Since the defendant 1 admittedly was inducted in the suit house on behalf of all the landlords, he has not become a trespasser even on the assumption that he has defaulted in payment of rent He is still the tenant in possession and it is open to the landlord to condone the default and permit him to enjoy the property. Since the plaintiff wants the position to be disturbed, he may have a cause of action for filing a suit, but he can enforce only such right as is vested in him subject to the right of his cosharer. Now let us consider some more cases.
39. The rights of co-owners in the light of the present issue came to be considered by the Privy Council in Watson and Company v. Ramchund Dutt (1891) ILR 18 Cal 10. One of the cosharers of the property in suit was in actual possession by way of cultivation and the other attempted to enter upon it. The former resisted. The Privy Council held that the resistance being made by the cosharer in occupation, simply with the object of protect ing himself in the profitable use of the land, in good husbandry, and not in denial of the other's title, such resistance was no ground for proceeding on the part of the other. In this and other cases where the decision was followed, money compensation on account' of exclusive user by the defendant was allowed in appropriate circumstances. It is significant to note that the defendant tenant before us has never denied the title of the plaintiff for his right as the landlord and has been anxious to pay him his share of the rent. His only fault has been the delay by a couple of months in offering the rent which has rendered him a defaulter in the strict and technical sense of the law.
40. In Midnapur Zamindary Co. Ltd. v. Naresh Narayan, AIR 1924 PC 144, it was held that a cosharer is liable to pay to his cosharer compensation in respect of exclusive (sic)er of the land in his possession, as exclusive use of land held in common is not an ouster of the cosharers from their proprietary right. It was further observed :
"When the cosharers cannot agree as to how the lands held by them in common may be used, the remedy of any cosharer who objects to the exclusive use of another cosharer of land, held in common, is to obtain partition of lands."
41. In Ram Chandra Saha v. Lakshmi Kanta Saha, AIR 1928 Cal 574, it was said that ouster means dispossession of one cosharer by another where hostile title is set up by the latter, but where occupation of the latter is not inconsistent with joint ownership of other cosharers, the latter are not entitled to get a decree for khas possession of the property.
42. The facts in the case of Mahesh Narain v. Nowbat Pathak, (1905) ILR 32 Cal 837, so far they are relevant in the present context, were similar to the case before us. The plaintiff Mahaesh Narain and the pro forma defendants 2 to 7 were joint owners of the property, a hill, which was leased out to Nowbat Pathak on behalf of all the owners for the purpose of quarrying and selling stones. On expiry of the lease term, Nowbat Pathak obtained a fresh settlement, but only from defendants 2 to 7 as the plaintiff declined to join the new lease Nowhat Pathak, however, continued to quarry as before. The plaintiff served a notice asking him to stop the work and render accounts of the stones already quarried As the defendant Nowbat Pathak did not oblige, the suit was filed The trial court made a partial decree in favour of the plaintiff. The plaintiff appealed and the defendant filed cross-objection challenging the decree against him. The Calcutta High Court dismissed the appeal and allowed the cross-objection. The court considered at considerable length, the nature and right of one cosharer against the other and the observations are illuminating. It has to be remembered that one of the reliefs claimed in the suit was for an injunction against the lessee Nowbat Pathak which was rejected by the High Court. Nowbat Pathak was allowed to continue in possession. Harington, J. observed as follows :
"In the present case on what does plaintiff base his claim? He cannot succeed in trespass because there has been no actual ouster; he cannot bring trover because there has been no destruction of the common property."
Mookerjee, J. who agreed with him further approvingly referred to the decision of Mr. Justice Wesh in (1883) ILR 7 Bom 336, holding that:
"A co-tenant may lawfully enjoy the whole property in any way not destructive of its substance so as to amount to an ouster of the other co-tenant, and whatever a co-tenant may do himself, he may license another to do."
Applying this principle, it must be held in the present case that on the strength of the support of the defendant 2, the tenant-defendant may successfully resist his eviction.
43. In the decision in Gopal Ram Mohuri v. Dhaneshwar Pershad Narain Singh (1908) ILR 35 Cal 807, which was relied upon by Mr. Chunnilal, the plaintiffs were owners of 14 annas and odd share in the suit property, the defendants 3rd party were owners of the remaining one anna and odd share and the principal defendants were in occupation as tenants. On the basis of a cause of action available to the plaintiffs, they filed the suit which went up to the High Court for khas possession of their share of the land. The trial court allowed the prayer. The Calcutta High Court reversed the decision on the ground that the defendants 3rd party did not join the plaintiffs for eviction of the tenant-defendants, observing that the relation created by contract with several joint landlords continues until there exists a new and complete volition to change it and the tenancy of the lessee cannot be put an end to except by all lessors acting together. The learned Judges referred to several decisions and emphasised that the rule is different in the case of trespassers. As the cosharer having one anna share was not joining with the plaintiffs and the principal defendants had come in possession as tenants and not as trespassers, the suit was dismissed Reference was made to the decision in Ram Lochi Koeri v. Herbert Collingridge, (1907) 11 Cal WN 397 indicating that appropriate remedy was for partition. The High Court was fully aware of the hardship which could be pleaded in favour of the plaintiffs, which is clear from the following observations :
"It would seem to be a hardship that the plaintiffs who represent a 15 annas share of the lessor's interest, should in consequence of'the collusion of their one anna co-sharers with the principal defendants be unable to obtain khas possession against the latter but such would seem to be the effect of the Indian decisions and we must follow them."
44. The position where a cosharer sues for eviction of a trespasser is entirely different and cannot be equated with a tenant's case. A tenant enters the property lawfully and his possession is not adverse to any of the landlords. The fact that he claims a right of tenancy rather emphasises the title of the landlord which is being respected by him. If the title of a cosharer landlord is denied, whether by a tenant or by another cosharer landlord, it will be a case of adverse possession or ouster which will immediately give a cause of action to the ousted cosharer for a suit for possession. The defendant in such a case commits a civil wrong and consequently different considerations arise. I entirely agree with the observations of the Gujarat High Court in Nanalal Girdharlal v. Gulamnabi Jamalbhai Motorwala, AIR 1973 Guj 131 (FB) made in para 21 of the judgment by Bhagwati, C.J. (as he then was) which in my view, were correctly made and have not been overruled by the Supreme Court.
45. Where the building is being damaged or is under an imminent danger of being damaged by the tenant or for that matter where a cosharer in exclusive possession is destroying joint property, the case again has to be decided in the light of the other principles arising. Every co-owner is entitled to prevention of damage to and protection of the joint property and if this right can be enforced only by eviction of the wrong doer -- whether a tenant or any body else -- a suit for possession would lie. In such a case and in a trespasser's case, different legal issues arise and no help can be taken from them by a plaintiff in a case like the present one where there is no denial of the title or threat to the property.
46. I would emphasise once more that in view of the fact that the contesting defendant before us is claiming only the right to continue in possession of the premises as a tenant subject to the right of the landlords, his possession cannot be treated to be that of a trespasser on account of the technical default in offering rent of two months beyond the time prescribed by the law. The defendant 2 has exercised his right as a cosharer by making it clear that he shall prefer to continue in possession of the premises through the defendant 1. He has a right to do so. It cannot be decided for him by the plaintiffs (against his own wishes) that he must now take actual possession of the building or that he will have to constitute the plaintiffs as his agents for that purpose. In this background, a decree for eviction of the defendant 1 shall amount to dispossession of the defendant 2 also, which will be illegal. His right cannot be determined on the supposed assumption of some equitable consideration arising in favour of the plaintiff and even if it be assumed that the attitude of defendant 2 amounts to his colluding with the defendant 1 that will be an irrelevant factor specially when they have not commenced this action as plaintiffs.
47. On the question whether the defendant 1 has in the present case defaulted in payment of rent within the meaning of the Bihar Buildings Control Act, I am again of the view that it has to be answered against the plaintiff. The section clothes the tenant with the right to continue in possession of the building until any of the conditions mentioned therein is satisfied. The burden in this regard is clearly on the landlord The tenant has been by the statute clothed with special right which was not available to him under the general law of landlord and tenant. The provisions are beneficial in nature and in case of doubt have to be construed in a manner which will advance the object and suppress the mischief. Where a landlord asserts that the tenant has defaulted in payment of rent so as to give him (the landlord) the right to evict the tenant, he must prove the default strictly within the section. In other words, he must prove that the default has occurred with respect to full rent of two months. A default in respect to a smaller amount cannot constitute a default within the section. The question, therefore, is whether the defendant 1 by paying a portion of the rent to the defendant 2, the cosharer landlord has made a legal payment.
48. The plaintiff was earlier collecting the entire rent from the defendant 1 on his own behalf and on behalf of defendant 2. He was not pretending to be the sole owner and he did not make such a representation to either of the defendants. He was obviously collecting the portion of the rent payable to the defendant 2 as his agent and defendant 2 as the principal is perfectly entitled to put an end to the agency unilaterally. The agency in regard to the collection of the rent cannot be confused with the lease under which the defendant 1 has been continuing in possession of the building as a tenant. It is true that the arrangement in regard to the enjoyment of the property by the defendant 1 can be modified or put an end to only by all the parties joining it, but the situation in regard to collection and payment of rent is different. So far as the cases in Radhabinode Mondal v. Naba Kishore Mondal, AIR 1926 Cal 578 and Dhaneshwar Choudhary v. Subodh Kumar Sett, AIR 1967 Cal 334, relied upon by the plaintiffs are concerned, they are not applicable at all. The first case was covered by Bengal Tenancy Act where splitting up of a holding and its rent are covered by special provisions of the Bengal Tenancy Act; and similar appears to be the situation in AIR 1967 Cal 334 as the judgment indicates that the suit was with respect to the rent for Bhadra 1363 to Sravan 1366 B.S. of land which was covered by West Bengal State Acquisition Act (see para 6). The ratio of these cases is, therefore, wholly irrelevant to the case before us. The present case also does not come within the two exceptions mentioned in para 10 of the judgment of the Full Bench case of the Gujarat High Court (AIR 1973 Guj 131) (supra) referred to by the Supreme Court in para 20 of the judgment in Ram Pasricha v. Jagannath, AIR 1976 SC 2335. I may point out at this stage that the Supreme Court while referring to the Gujarat case did not say that it was erroneously decided. In the present case, therefore, I hold that the defendant 2 was entitled to demand his share of rent directly from the tenant who by acceding to the request did not act illegally. A portion of rent for two months was thus paid and the default was in respect of the remaining portion only. It has to be remembered that in the present case the default, technical as it was, was not in respect of a longer period. Consequently, the defendant 1 cannot be treated to be a defaulter within the meaning of Section 11 of the Act.
49. For the reasons mentioned above, I allow the appeal, set aside the decision of the lower appellate court and dismiss the suit The parties shall bear their own costs throughout.
Uday Sinha, J.
50. I have perused both the judgments. I am in complete agreement with the judgment of Hon'ble the Chief Justice. I regret my inability to concur with Hon'ble Sharma, J.