IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Civil Revision No. 171 of 2003 Reserved on: 31.12.2008 Date of decision : 06.01.2009 Harish Kumar Plaha …Petitioner. Versus Shashi Kaura and others. …Respondents Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for reporting?1 Yes. For the petitioner: Mr. Anand Sharma, Advocate. For the Respondents 1 & 2: Ms. Radhika Gautam, Advocate. Per Deepak Gupta, J. This petition under Section 115 CPC is directed against the order dated 10th June, 2003 passed by the learned Sub Judge Ist Class, Dalhousie whereby he rejected the application filed by the petitioner for being impleaded as party respondent in Civil Suit No. 77 of 1999 titled Jagan Nath vs. Ashok Plaha. The facts necessary for disposal of this suit are that the respondents No. 1 and 2 here-in-after referred to as the landlords filed a suit for possession and recovery of rent in respect of a double storeyed house consisting of two rooms rented out to respondent No.3 here-in-after referred to as the defendant. After issuing notice under Section 106 of the Transfer of Property Act, 1882 and terminating the tenancy of the defendant, the plaintiff filed the suit for possession. Respondent No.3 tenant contested the suit on various grounds and claimed that the rent had been paid. It was also alleged that the notice was not in accordance with the provisions of the Transfer of Property Act. 1 Whether the reporters of the local papers may be allowed to see the Judgment? Yes. 2 After the written statement was filed, issues were framed on 28.4.2000. Evidence of the plaintiff was closed on 24.7.2000. Thereafter, the case was fixed for evidence of defendant on 22.8.2000, 29.9.2000, 2.11.2000, on which dates no evidence was present. On 2.11.2000 the case was adjourned to 25.11.2000 and defendant was directed to produce all its evidence at his own responsibility. Only two witnesses were examined on 25.11.2000 and at the request of the defendant last opportunity was given and the case was fixed for evidence of the defendant on 14.12.2000. On this date, no evidence was present but the defendant filed an application for amendment of the written statement. This amendment was allowed with the consent of the plaintiff on 20.3.2001. Thereafter, statements of two more defendant witnesses were recorded on 6.6.2001 and the evidence of the defendants closed. Rebuttal evidence was led by the plaintiff on the next date i.e. 28.6.2001 and the case fixed for arguments. At this stage, the defendant changed his counsel and the new counsel sought a few more dates for arguments. Thereafter on 28.8.2001 the present petitioner moved an application under Order 1 Rule 20 CPC for being impleaded as defendants in the suit. In this application it was stated that Shri Ram Nath Plaha father of the applicant Harish Kumar Plaha and original defendant Ashok Plaha was the tenant in possession of the suit property right from the year 1967 and after his death both the applicant and defendant No.1 were in possession of the suit property. It was claimed that since the applicant is in possession of the suit property he was a necessary party and should be impleaded as a defendant in the suit. The landlord filed reply and submitted that the application had been filed only to delay the proceedings. It was alleged that in fact the applicant is the step brother of the original defendant and has settled down in Purani Sabji Mandi, Jammu for the last 40 years and is doing his business there. According to the plaintiff after the death of Shri Ram Nath Plaha the premises were rented out 3 to Shri Ashok Kumar Plaha on monthly rent of Rs.50/- only. The learned trial Court rejected the application on the ground that the original defendant had not denied the fact that he alone is the tenant of the premises. He also came to the conclusion that there is no payment of rent by the applicant and admittedly applicant is not in possession of the premises and therefore, dismissed the application. This order was challenged by the original applicant by filing the present revision petition. During the course of this petition, the applicant died and his legal heirs were brought on record. Shri Anand Sharma, learned counsel for the petitioners, has urged that the original applicant being the brother of the defendant had jointly inherited the tenancy of their father and therefore he was a necessary party in the proceedings. Shri Anand Sharma submits that tenancy is heritable and therefore his client who inherited the tenancy was a necessary party. In support of his contention Shri Anand Sharma has relied upon on the following Judgements i.e. Rashtriya Mill Mazdoor Sangh vs. Empress Mills, Nagpur and Others, 2007(4) Civil Court Cases 321 (Bombay) (DB), Gurcharan Singh vs. S.Amarjit Singh and another, 2005(2) Civil Court Cases 422 (P&H), and Kasturi vs. Iyyamperumal and others, (2005) 6 SCC 733. It would be pertinent to refer to certain observations made by the Apex Court in Kasturi vs. Iyyamperumal and others (supra), which read as follows:- “17. It is difficult to conceive that while deciding the question as to who is in possession of the contracted property, it would be open to the court to decide the question of possession of a third party or a stranger as first the lis to be decided is the enforceability of the contract entered into between the appellant and Respondent 3 and whether contract was executed by the appellant and Respondents 2 and 3 for sale of the contracted property, whether the plaintiffs were ready and willing to perform their part of the contract and whether the appellant is entitled to a decree for specific performance of a contract for sale against Respondents 2 and 3. Secondly in that case, whoever asserts his 4 independent possession of the contracted property has to be added in the suit, then this process may continue without a final decision of the suit. Apart from that, the intervener must be directly and legally interested in the answers to the controversies involved in the suit for specific performance of the contract for sale. In Amon v. Raphael Tuck and Sons Ltd. it has been held that a person is legally interested in the answers to the controversies only if he can satisfy the court that it may lead to a result that will affect him legally. 18. That part, there is another principle which cannot also be forgotten. The appellant, who has filed the instant suit for specific performance of the contract for sale is dominus litis and cannot be forced to add parties against whom he does not want to fight unless it is a compulsion of the rule of law, as already discussed above. For the reasons aforesaid, we are, therefore, of the view that Respondents 1 and 4 to 11 are neither necessary parties nor proper parties and therefore they are not entitled to be added as party-defendants in the pending suit for specific performance of the contract for sale.” Ms. Radhika Gautam appearing on behalf of the respondents- landlords No. 1 and 2 contends that she is not disputing the proposition of law that tenancy is heritable. According to her, in the present case, it is apparent that the applicant had surrendered his right of tenancy. In support of her submission she has made reference to Section 111 (f) of the Transfer of Property Act which provides that the lease of immoveable property may be determined by implied surrender. She submits that the death of the original tenant took place in 1985. Thereafter it is only respondent No.3 who was inducted as tenant in the premises. The rent for all these years was paid only by defendant No.3. The applicant never remained in possession of the tenanted property nor he ever paid the rent for the same and therefore, the only conclusion is that the applicant had surrendered his tenancy. In the application filed by the petitioner, there is no allegation that the applicant and his step brother are doing a joint business or that that they are residing in a joint family. All that was stated was that after the death of Ram Nath Plaha the applicant alongwith defendant No.1 came into possession of the 5 suit property. This fact is not correct. One of the main argument of Shri Anand Sharma was that the deceased father was running a joint business in the premises and this business was jointly inherited by the applicant and his brother. This submission is without any basis since no such allegations have been made in the application. In fact, the applicant has not seriously contested the stand of the landlords that after the death of Ram Nath Plaha the applicant never remained in possession of the premises nor paid any rent thereof. The original defendant did not also raise the plea that the applicant is also a joint tenant in the premises. There is no proof that the brothers are living jointly or that they have a joint mess or that they are residing as a joint family. In fact, from the material on record, it appears that they are not real brothers but step brothers and they have never lived together. The Andhra Pradesh High Court in Konijeti Venkayya and another vs. Thammana Peda Venkata Subbarao and another, AIR 1957 Andhra Pradesh 619 (V 44, C 205, Oct.) considered the scope of ambit of Section 111(e) of the Act. In para 12 of the said judgement, it was held as follows:- “……….Implied surrender is, however, recognized and provided for by section 111, clause (f) of the Transfer of Property Act and the illustration thereto, which refers to a lessee accepting from his lessor a new lease of the property leased, to take effect during the continuance of an existing lease. The illustration is oviously not exhaustive of cases of implied surrender. The principle of implied surrender or surrender by operation of Law was thus enunciated by Parke, B in (1844) 153 ER 118 at p. 127 (E). This term is applied to cases where the owner of a particular estate has been a party to some act, the validity of which he is, by law, afterwards estopped from disputing and which would not be valid if this particular estate had continued to exist. There the law treats the doing of such act as amounting to a surrender….. All the old cases will be found to depend on the principle to which we have adverted, viz., an act done by or to the owner of a particular estate the validity of which he is 6 estopped from disputing and which could not have been done if the particular estate continued to exist. The law there says, that the act itself amounts to a surrender. In such case it will be observed there can be no question of intention. The surrender is not the result of intention. It takes place independently and even in spite of intention.” Similar view was taken by a single Judge of the Allahabad High Court in Smt. Madhubala vs. Smt. Budhiya and another, AIR 1980 Allahabad 266, wherein the Court has observed:- “In the instant case none of the heirs have come up before the court to assert their tenancy rights. The name of the heirs have also not been categorically stated. None of the alleged heirs are living in the property. None of them have paid any rent and it is the own case of the respondents that they alone are the tenants of the property. In the circumstances it is a clear case of implied surrender of tenancy by other heirs of Kundan.” The aforesaid Judgement was approved by the Division Bench of the Allahabad High Court in J.J.Pancholi vs. Sridharjee and others, AIR 1984 Allahabad 130. The Rajasthan High Court has also taken a similar view in Noratmal vs. Mohanlal AIR 1966 Rajasthan 89. From the perusal of the aforesaid judgements and a bare reading of Section 111(f), it is apparent that the Transfer of Property Act recognizes the concept of implied surrender. This implied surrender can be established by the conduct of the parties. Even if there is no intention to surrender, the surrender of tenancy can be implied from the attending circumstances. In the present case, there is ample material on record to show that after the death of his father, the applicant never resided in the demised premises. He never paid the rent thereof. He did not ever remain in possession thereof, He never contested the right of his brother to be the sole tenant. His conduct leaves no manner of doubt that he had no intention to continue with the tenancy. He impliedly 7 surrendered his tenancy and therefore, his brother became the sole tenant of the premises in question. In view of the above discussion, I have no hesitation in holding that there is no merit in the petition. The same is accordingly dismissed with costs assessed at Rs.3,000/-. The parties are directed to appear before the learned trial Court on 18th February, 2009. The Registry is directed to ensure that the record of the case reaches the trial Court on or before the said date. Since the case is very old one and was filed in the year 1999 and only arguments have to he heard in the matter the learned trial Court is directed to dispose of the civil suit as early as possibly and in any event not later than 30th April, 2009. January 6, 2009 ( Deepak Gupta ), J. ™