Patna High Court
Birendra Mohan Ghosh vs Mohamed Umar on 7 December, 1972
Equivalent citations: AIR1973PAT299, AIR 1973 PATNA 299
JUDGMENT Shambhu Prasad Singh, J.
1. This second appeal by the defendant arises out of a suit for ejectment from a shop portion of holding No. 13, in the town of Chakradharpur, in the district of Singhbhum.
2. The case of the plaintiff-resdent was that the appellant was a tenant of a room of the said holding on monthly rental of Rs. 15/-. He defaulted in payment of rent. The plaintiff-respondent also required the house for his personal necessity. Therefore, a notice dated 23th of October. 1965, under Section 106 of the Transfer of Property Act was sent to the appellant to vacate the premises by 30th of November, 1965 and also to pay arrears of rent. It was admitted that rent up to October, 1965 was subsequently remitted by the appellant before the institution of the suit and was accepted by the plaintiff-respondent, but as the appellant did not vacate the premises the suit had to be instituted claiming evic-
tion on the ground of personal necessity.
3. The case of the appellant was that the premises was let out toy father of the plaintiff-respondent and though the plaintiff-respondent was receiving rent, notice by him alone was not valid in law as his father died leaving other sons and daughters and he was only a co-lessor. It was also averred that the suit was bad for non-joinder of the brothers and sisters of the plaintiff-respondent.
4. The trial Court held that notice to determine the tenancy was not valid in law and that the plaintiff-respondent did not require the house for personal necessity. It, accordingly, dismissed the suit. The lower appellate Court has held that the plaintiff was landlord within the meaning of the term as defined in the Bihar Buildings (Lease. Rent and Eviction) Control Act -- hereinafter referred to as 'the Act'-and, therefore, notice by him alone was valid. It further held that the plaintiff could get a decree for eviction on the ground of personal necessity as well as for non-payment of rent. It accordingly reversed the decree of the trial Court and decreed the suit.
5. It is manifest that the finding of the lower appellate Court that the plaintiff-respondent could get eviction on the ground of non-payment of rent is not correct in law. When notice was given, rent upto September. 1965, had become due. Before institution of the suit, the appellant remitted rent upto October. 1965 and the plaintiff-respondent accepted it. Thus, he waived his right to claim eviction on the ground of non-payment of rent.
6. The question, however, re mains whether notice by the plaintiff-
respondent alone was a valid notice and whether he can get a decree for evic tion on the ground of personal neces sity. In Second Appeal No. 419 of 1968 (Pat.) (Kishan Lal Agarwala v. Rajnu Sonar--judgment delivered iust now) it has been held that a co-landlord who is receiving rent for the time being is landlord within the meaning of the term as defined in the Act, and is en titled to get a decree for eviction on grounds mentioned in Section 11 of the Act and as ,a preliminary for eviction can alone give notice determining the tenancy. In view of the rule laid down in that case, it has to be held in this case as well that the notice by plaintiff-respondent alone is valid in law.
7. The finding that the plaintiff-respondent required the house for personal necessity is a finding of fact and cannot be challenged at the second ap-
pellate stage. But Mr. Sarkar appearing for the appellant has contended that according to Explanation to Section 11 (1) (c) of the Act, the plaintiff-respondent cannot set a decree for eviction on ground of personal necessity. Section 11 (1) (c) reads as follows:--
"11 (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:--
(a) ......
(b) ......
(c) where the building is reasonably and in good faith required by the landlord for his own occupation or for the occupation of any person for whose benefit the building is held by the landlord.
Provided that where the Court thinks that the reasonable requirement of such occupation may be substantially satisfied by evicting the tenant from a part only of the building and allowing the tenant to continue occupation of the rest and the tenant agrees to such occupation, the Court shall pass a decree accordingly, and fix proportionately fair rent for the portion in occupation of the tenant which portion shall thenceforth constitute the building within the meaning of Clause (aa) of Section 2, and the rent so fixed shall be deemed to be the fair rent fixed under Section 5.
Explanation.-- In this clause the word landlord' shall not include an agent referred to in clause (d) of Section 2."
According to Mr. Sarkar, a co-sharer landlord who alone is receiving rent is only an agent of the other co-landlords and, therefore, he cannot get a decree for eviction on the ground that he requires the house for his own occupation. He can set eviction only if he claims the suit premises for the benefit of all the co-landlords. Section 2 (d) of the Act defines 'landlord' as follows:
"2 (d). 'landlord' includes the person who for the time being is receiving or is entitled to receive, the rent of a building whether on his own account or on behalf of another, or on account or on behalf or for the benefit of himself and others or an agent, trustee, executor, administrator, receiver or guardian or who would so receive the rent or be entitled to receive the rent, if the building were let to a tenant."
In my opinion, according to this definition, a person, be he a co-landlord or Not, if he is receiving rent for the time being, is landlord. He is a landlord in his own right because he is receiving rent and not as an agent of other landlords. The expression 'agent' as used in explanation to Section 11 (1) (c) has to be read together with the definition of 'landlord' in Section 2 (d) of the Act and a person who for the time being is receiving rent cannot be debarred front getting a decree for eviction on the ground of personal necessity on the plea that he must be presumed to be receiving rent as an agent of other landlords. A person who is claiming as landlord on the ground that he is receiving rent for the time being is to be distinguished from a person who is claiming as lanldord on the ground that he is an agent of the landlords. In my opinion, therefore the explanation to Section 11 (1) (c) of the Act is of no help to the appellant and there is no substance in this contention of Mr. Sarkar.
8. In the result. I find no merit in the appeal and it must fail. It is, accordingly, dismissed with costs.
Mukherji, J.
9. I agree.