HIGH COURT OFCHHATTISGARH AT BILASPUR Petitioner ) Respondent Civil Revision No. 149 of 2007 Abdul Aziz Khan Versus Hazi Ismail Khan Postfor 2^-03-2010 -k Sd/- N. K. Agarwal Judge ,1 f»>»lIN», a: HIGH COURT OF CHHATTiSGARH AT BILASPUR Civii Revjslon No. 149 of 2007 Petitioner : Abdul Aziz Khan Age 71 years, Rtd. Govt. Tsacher S/o Late Hasan Khan, R/o Baijnath Para, Ralpur At present residing at Madarsa Vidya Nagar, Raipur (CG). Versus Respondent : Hazl Ismail Khan, Age about 65 years, S/o late Usman Khan R/o House No. 382, Raju Hosiery Wale, Mouiana Abdu! Raufe Ward Bajjnathpara, Raipur, Tah. & Distt. Raipur (CG). Revisjon under Section 23-E of Chhattisaarh Accommodation Control Act, 1961 (Sinale Bench: Hon'bte Mr. N.K. Aaarwal. J.l Present : Shri JN Nande, Advocate for appiicant. Shri BP Sharma, Advocate for respondent. ^EDER (Passed onj^_day of March, 2010) 1. Legaiity and proprietar^ of the order dated 14.09.2007, passed by the Rent Controlling Authority, Raipur (for short 'RCA') in case No. 1/90 (8) Year 2001-02, dismissing the applicant's petition under Sectlon 23-A of the Chhattisgarh Accommodation Control Act, 1961 (for short 'the Act') is questioned in the instant revision by the petitioner/landiord. 2. The facts in nutsheil are as under: I. The petitioner/landSord fiied an application under Section 23- A(a) of the Act against the respondent for his eviction on the ground.of bonafide requirement of the suit house for residence of himseif and of his famiiy members. 4. jj. As per petitioner, earlier deceased Usman Khan was his tenant. After hls death, his two son's non applicant and one Shahbaj Khan were in possession ofthe suit house and after death of Shahbaj Khan, his two sons Ahmed Khan and Mohammed Khan were residing in the suit house alongwith the non appiicant. The rent was belng paid by the non applicant on behaif of ali. After sometlme, sons of iate Shahbaj Khan i.e. Ahmed Khan and Mohammed Khan left the suit house and started residing jn some accommodation and thus respondent alone remained in possession of the suit house. iii. The petitioner, being a retired government errsployee and presentjy iiving in the Madarsa, is jn felt need of suit house, thus entltled for vacant possession ofthe suit house. iv. The written statement was flled by the respondent in which various pleas have been taken. The RCA framed six issues; recorded evidence of the parties and thereafter dismissed the petition holding that there is no relationshlp of landlord and tenant between the partles. Hence this revision. Shri JN Nande, learned counsel appearing for the applicant wouid submit that the respondent in his written statement has not denied the relationshlp of landlord and tenant; only pleaded that sons of deceased Shahbaj Khan i.e. Ahmed Khan and Mohammed Khan vi/ere a!so residing in the suit house; not denied that he used to tsnder rent on behalf of ali and therefore, the order passed by the RCA Is on the face patently iilegaland deserves to be set aside. Per contra, Shri BP Sharma, learned counsei appearing for the respondent supported the order passed by the RCA . By placing ^ ...^^ s/./ ^^ 1 "^ssyy"~'v s •^f'^ reiiance upon the judgment of Supreme Court in the matter of Textile Associatlon (India) Bombay Unit v. Balmohan Gopal Kurup & Another, he would contend that the sons of late Shahbaj Khan have not been deiiberately impleaded as a party in the matter who were residing in the suit house as cotenant and therefore, the RCA has rightly dismissed the petition. 5. 1 have heard the counsel appearing for the parties, perused the order Impugned and records of the case. 6. It is settied law that on the death of the original tenant, subject to any provlsion to the contrary either negativlng or iimiting the succession, the tenancy rights devolve on the heirs of the deceased tenant. It is aiso settled law that it is a single tenancy whtoh devolves on the heirs. There is no divislon of the premises or of the rent payabie thereafter and that is the position as between the landlord and the heirs of the deceased tenant. !n other words the heirs succeed to the tenancy as joint tenants. 7. The Supreme Court in case of Ashok Chintaman Juker and others vs. Kishore Pandurang Mantri and Anothsr2, in para 10 and 11 of its judgment, has held that in case of joint tenancy notice on any one of the tenants is valid and a surt impleading one of them as a defendant Is maintainabie. A decree passed in such a suit is binding on ail the tenants. Determination of the question depends on the facts and circumstances of each case. No inflexibie rule or straight-jacket formuia can be laid down for that purpose. 8. The Suprem'e Court in case of Textile Association (Supra), in para 4,5& 6 of its judgment held as under: 11990 (4) SCC 700 2 2001 (5) SCC 1 ,. ",^.. ''-s, ^ / ~.,... ''? w.^ \^^ 9. "4. Mr Laltt, counsej for the appellants argued that the ex parte decree obtained against the joint tenants was equally binding on the respondent. Reference was made in this context to the decisions of this Court in Kanji Manji v. Trustees of the Port of Bombay and H.C. Pandey v. G.C. Pau). Both the cases relate to the validity of the notice issued to one of the Joint tenants. It was heid that the notice issued to one of them would be valid. We do not think that the principle stated in those cases on the facts obtalned are reievant to the present case. There is a findjng in this case that the respondent was as much a tenant as the mother and the other brother. That being the position the ex parte decree for eviction obtained against his mother and brother without impleading him in that suit has to be set aside. !t is not sufficient as the courts below have said that that decree was not binding upon the respondent. That decree cannot be kept alive against two other tenants and possession of the premises couid be exciusiveiy given to the respondent. The respondent cannot be put into exclusive possession of the premises since hls mother and brother are also equally entitled to. it seems to us therefore, the ex-parte decree for eviction shouid be set aslde and the petitioner should be impleaded as a party to that suit and it should proceed on merits. 5. We accordingly aliow the appeal in part, and set aside the ex parte decree dated March 31,1977 and directthe respondent to be impieaded as party to that suit R.A.E. No. 5136 of 1976 on the file of the Smaii Causes Court, Bombay. The suit should now proceed from that stage with iiberty to the respondent to fiie his defence. 6. It is needless to state that since we set aside the ex parte decree, the mother and the two sons who are now the parties to the suit, ar6 entitled to possession. The possession shall be restored to them within six months from today. !t is aiso directed that the tenants sha!) not induct any other person into the premises or encumber the same with any liability. The decree under appeal is accordingly modified." The Supreme Court in case of Shkuntala Vasant Pahadi and Others vs. Purushottam Vasant Pethe and Others3 has held in para 4 of its judgment as under: "4. in the present case, in spite of service of notice, the plaintiff-respondents have not appeared before this Court to contest the prayer made herein. Learned counse! for the appeiiants submitted that if an original tenant dies leaving behind more than one heir, it is not necessary under iaw to implead all the heirs in a suit for eviction but the same can be filed oniy against one of the heirs who could have represented interest of the deceased tenant; In other words, his interest has been looked after in a bona fide manner, but if there is any ciash of jnterest bet^een the person concerned and his assumed '• 2007 (3) SCC 123 •^, •7' %.5:<1^ ^, "x?,- ^te^J^ ^^ representation or if the iatter due to coilusion or for any other reason mala fide neglects to defend the case, he cannot be considered to be a representative. Reliance in this connection has been placed upon decision of this Court in Surayya Begum (Mst) v. Mohd. Usman. In our view, in the absence of any aliegation and proof against the mother, showing collusion with the iandlord or mala fide neglecting the interest of her sons i.e. the plaintiffs, present case is squarely covered by the aforesaid decision of this Court, as such the High Court was not justified in decreeing the suit." 10. In the instant case, it is crystal ciear that after death of origina! tenant, the respondent as well gs his brother Shahbaj Khan occupied the suit house as joint tenant and after the death of the Shahbaj Khan his sons became joint tenants alQngwith the respondent. This fact has not been denied by the petitioner or by the respondent. However, the petitioner has pleaded in its petition that the sons of Shahbaj Khan have already left the suit house but in his affidavit under Order 18 Ru!e 4 of CPC, he himself has stated in para 5 that the sons of Shahbaj Khan are residing in the suit house. In such situation, in order to avoid any controversy and further dispute, they ought to have been impleaded as cotenant in the petition, in the light of principles of iaw laid down by the Supreme Court in the aforementioned cases. 11. So far as, the finding recorded by the RCA that there is no relationship of iandlord and tenant between the parties is concerned, the same is certainly patently ijlegal. Sons of non- applicant are living in the suit house as his family members aiong with him and not as joint tenants. There is no denial by the respondent regarding reiationship of iandlord and tenant and dismissal of {he petition on the said ground is certainly withoyt jurisdiction, but in the opinion of this court, the sons of Shahbaj an who ^re joint tenants along with non-applicant ought to have m /t "-^ ^^~ Sahu 6 b/ been impleaded as a cotenant jn the matter in order to avoid any future controversy between the partjes in the facts and circumstances of the case. 12. Jn view of above, the revision is partly allowed and the order passed by the RCA is set aside. The matter js remitted back to the RCA for decision afresh after affording petitioner opportunity to implead the sons of late Shahbaj Khan as a cotenant in the matter and then to proceed with the matter in accordance with law on its own merits after affording opportunity to such impleaded respondents to file there defence, if any. 13. Parties are directed to appear before the Rent Controiling Authority on 26-4-2010, 14. No order asto costs. i Sd/- N. K. Agarwal Judge Y