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10. Before this Court only one issue has been raised and argued by learned counsel for the petitioner that after death of Mohd. Ismail, the initial tenant, tenancy rights devolved on all the legal heirs, namely, widow, three sons and one daughter. The suit was filed by impleading only one of the joint tenants, i.e., the petitioner, hence was liable to be dismissed for non-impleadment of other co-tenants. Sri Khan, submitted that there was no evidence that other co-tenants surrendered their tenancy rights and, therefore, both the courts below have committed patent error of law in rejecting petitioner's contention about non-impleadment of necessary parties. He relied on this Court's decisions in Moti Lal Pathara Vs. VIIIth Additional District Judge, Varanasi and others, 1990(1) ARC 61; M/s G.R. Bhargava and sons Vs. The Prescribed Authority, Chandausi, Moradabad and others, 1995(2) ACJ 1238; Abdul Sattar Vs. VIth Additional District Judge, Allahabad and others, 1994(1) ARC 117; and, Smt. Rani Devi Vs. Bhole Nath, 1992 AWC 250(SC).

23. The concept of joint-tenancy/co-tenancy has been considered in H.C. Pandey Vs. G.C. Paul 1989 (2) ARC 26. The Apex Court said that on the death of original tenant, subject to any provision to the contrary, either negativing or limiting succession, tenancy rights devolve on the heirs of the deceased tenant. The incidence of tenancy is the same as those enjoyed by the original tenant. Thus in other words, the heirs succeed the tenancy as "joint tenants".

24. The above legal exposition was reiterated and approved by a three-Judge Bench of Apex Court in Harish Tandon Vs. Addl. District Magistrate, Allahabad and others 1991 (1) ARC 220. In para 23 and 24 of judgment, the Court said, it is difficult to hold that after the death of original tenant, his heirs become tenant in common and each one of the heirs shall be deemed to be an independent tenant in his own right. On the contrary, it is a single tenancy which devolves on the heirs and there is no division of the premises or of the rent payable therefor, and, the heirs succeed the tenancy as joint tenants. The Court also referred and followed an earlier Constitution Bench Judgment in Smt. Gian Devi Anand Vs. Jeevan Kumar and others 1985 SCFBRC 229 SC. The Bench also referred to a contrary decision in Mohd. Azeem Vs. District Judge, Aligarh 1985 (2) ARC 85 (SC), and, having considered the same in para 27, held that decision in Mohd. Azeem (surpa) does not lay down correct law. The decision in H.C. Pandey (supra) is however affirmed.

25. The difference in the concept of joint tenancy and tenancy in common has again been considered and explained in detail in Harish Tandon (supra). A three Judge Bench of Apex Court considered this question. It held that after the death of original tenant, his heirs cannot be said to have become tenant in common since that would result in treating as if each one of heir is deemed to be an independent tenant in his own rights. Looking to this issue in the context of provisions of statute, i.e., Act, 1972 the Apex Court held that if the concept of tenancy in common would be accepted, that would make the operation of statutory provision almost improbable and extremely difficult. That may also result in finding out several lacuna and inconsistency in the statute also. Such a situation cannot be perceived. With reference to Section 20(2) of Act, 1972 the Court discussed various grounds on which the landlord has been given a right to seek ejectment of tenant from a building and held that concept of tenancy in common shall render application of various provisions improbable. The Court discussed this aspect in detail in para 23 and thereafter took the view that earlier decision in H.C. Pandey (supra) has taken a correct view that after death of original tenant, tenancy rights devolved on the heirs of deceased tenant, jointly. The incidence of tenancy is same as those enjoyed by original tenant. It is a single tenancy which devolves on the heirs. There is no division of premises or of rent payable therefor. The heirs succeed to the tenancy as joint tenants. Having said so the Court said, in para 26 of the judgment, that, after the death of original tenant his heirs shall be deemed to be holding the premises as joint tenant and for any breach committed by any of such joint tenants, all the heirs of original tenant have to suffer. They cannot take a plea that unless a ground for eviction is established individually against each of them, they cannot be evicted from the disputed premises. In this context the Court also held that quit notice served and received by one co-tenant is sufficient and need not be given individually to each co-tenant.

44. Now I may refer to the decisions in the context of implied surrender of tenancy rights.

45. In Moti Lal Pathara (supra) one Narendra Bahadur Singh was landlord and owner of shop in question, which was in the tenancy of one Vishwanath Prasad who died in 1979. The tenancy rights thereafter devolved on his legal heirs, constituting four sons including Motilal Pathara. The landlord came up with a case that other three sons of erstwhile tenant, Vishwanath Prasad had their own separate commercial accommodations in vicinity of disputed shop and tenancy thus continued with Motilal Pathara individually with consent of other legal heirs. Sri Pathara contended that tenancy rights devolved as tenancy in common upon legal heirs. The Prescribed Authority rejected the application of landlord on the ground that he failed to prove bona fide personal need and hardship in his favour but the Prescribed Authority's order was reversed in appeal. Before this Court, an issue was raised that without impleading other legal heirs the application under Section 21(1)(a) was not maintainable. The Court found that Motilal Pathara, tenant has moved an application before Nagar Mahapalika Varanasi for recording his name as tenant in the shop in dispute and his other brothers knowing this fact did not object. The Court held that this fact demonstrates an implied surrender by other brothers of Motilal Pathara in his favour and for this purposes relied on this Court's decision in Sultan Vs. Ist Additional District Judge, Meerut, 1982(1) ARC 390.