1. Ground No. 5 in the Memorandum of Civil Revision Petition raises an important question as to the maintainability of a petition for eviction under section 10(2) of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 by one co-owner where the other co-owner does not join in the petition, but on the contrary opposes the eviction of the tenant. Since this question is one of general importance, I direct that this revision petition be posted as early as possible before a Bench, which may also hear and determine the other points raised in the revision petition.

In pursuance of the said order the petition came on for final hearing before the Bench.

B. Rama Rao, for Petitioner.

T.S Narasinga Rao and E. Subramaniam, for Respondent No. 1.

The Judgment of the Bench was delivered by

P. Jaganmohan Reddy, C.J:— This Civil Revision Petition has been referred to the Bench by our learned brother Basi Reddy, J., because it raises an important question as to the maintainability of a petition for eviction under section 10(2) of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, (hereinafter referred to as “the Act”) by one co-owner where the other co-owner does not join in the petition, but on the contrary opposes the eviction of the tenant.

2. The revision petitioner is the tenant of respondent No. 1, the wife and respondent No. 2 the husband, who are joint owners of a house given to them under a deed of settlement, dated 4th June, 1965. The tenancy was evidenced by a lease deed Exhibit 2, dated 21st November, 1958, executed in favour of both the respondents, the petitioner agreeing to pay the rent to both and to obtain receipts for the same. After the period of this lease expired, the petitioner entered into a lease deed with respondent No. 2 alone, under Exhibit D-1, dated 9th January, 1960. Thereafter, the petitioner issued a notice Exhibit D-2 to the 1st respondent on 29th February, 1960, stating that she has no right to the premises and that he has entered into a lease deed with her husband, respondent No. 2 and was paying him the rents. This was in reply to that a notice issued by the 1st respondent to the petitioner, Exhibit P-3 to pay the rent. After the receipt of the reply notice Exhibit D-2 the 1st respondent filed an eviction petition before the Rent Controller for evicting the tenant-petitioner on the ground that he has sub-let the premises, that he has committed default in payment of rents and that he has denied her title to the house—all of which are grounds for eviction under section 10(2) of the Act. Since the husband did not join her in her petition, she impleaded him as respondent No. 2 to the petition. The husband supported the tenant and stated that he obtained the house in a partition with his brother and sister and was the sole owner of the premises which he has leased out to the tenant.

3. The Rent Controller has found as a fact that no rents were paid to the 1st respondent, that the petitioner has sub-let the premises and that he had denied her title. Apart from this, it was also found that the petitioner had obtained a mortgage of the entire premises from the 2nd respondent, which also is an act of denial of the 1st respondent's title. In appeal, these findings have been confirmed. Before the Rent Controller as well as the appellate Court, the petitioner objected to the maintainability of the petition on the ground that the 1st respondent is not alone entitled to file a petition for eviction inasmuch as she and her husband the 2nd respondent, were joint owners and until both of them join in the petition, the petition was not maintainable. This objection was rejected by both the Courts.

4. Before us the only question that falls for determination is whether the petition is maintainable, inasmuch as only one out of the two joint owners had filed the petition for eviction, while the other joint owner, the 2nd respondent opposes the eviction of the tenant.

5. Mr. Rama Rao, learned Advocate for the petitioner, contends that the lease entered into with the petitioner was by both the joint owners and is one and indivisible, and until both the co-owners join in the petition, they cannot be held to be landlords within the definition of section 2(vi) of the Act and the petition cannot be deemed to have been presented by a landlord within the meaning of section JO (2).

6. Section 2(vi) defines ‘landlord’ thus;—

“Landlord means the owner of a building and includes a person who is receiving or is entitled to receive the rent of a building, whether on his own account or on behalf of another person or on behalf of himself and others or as an agent, thrustee, 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…….”

7. There is nothing in this definition which precludes a joint owner from being termed a landlord. He is as much a landlord in respect of his share of the property as both of them are in respect of the whole of it. The only question is whether having regard to the joint ownership and the theory that neither of such joint owners is entitled to possession of any specific portion of the property, can one of them alone recover possession of the whole of the property or of his share of the property ?

8. There is little doubt that one of several co-owners cannot recover possession of a property held by them jointly, unless all of them join or unless those who do not join are made party defendants or respondents as the case may be. In so far as the Rent Control Act is concerned, this view of ours is fortified by a judgment of Subba Rao, J. (as he then was) in Kotiah v. Abdul Aziz Khan . 1951 2 M.L.J Short Notes p. 68, C.M.P No. 6452 of 1951, dated 2nd November, 1951., in which it was held that where the three out of four co-owners of a building are not receiving the entire rent and also not entitled to receive the entire rent of the building and they have not been authorised by the fourth co-owner to receive the rent on his behalf also and each was receiving only his share of rent, though each may be a landlord in regard to his share not being entitled to receive the entire rent some alone (three out of the four) of the co-owners cannot be held to be ‘landlords’ within the meaning of the definition in section 2(3), and that some of the co-owners cannot take proceedings for eviction without impleading the other co-owners. The fact that in judging about the maintainability of the petition the impleading of the other co-owners was an important element in a case where all the co-owners are not petitioners, has been stressed in that judgment, and with great respect, that is in consonance with the provisions of the Civil Procedure Code also, where if any of the persons necessary for filing a suit are not willing to join such of them as are not prepared to co-operate can be added as defendants and the suit will not be bad for non-joinder of parties. We do not, therefore, think that the 2nd respondent not joining the 1st respondent as a petitioner affects the maintainability of the petition of the 1st respondent, inasmuch as the 2nd, respondent, the other co-owner, has been impleaded as a party respondent. Nor is this conclusion of ours affected by the mere fact that the 2nd respondent opposes the petition. If at all, the attitude of the 2nd respondent coupled with the acts of the petitioner show that they are acting in collusion with indeed is what both the rent Controller as well as the appellate Authority have held.

9. Next is it argued by Mr. Rama Rao basing his contention on a decision of a Bench of the Calcutta High Court in Gholam Mohiuddin Hossein v. Khairan that where tenants were originally lef into possession of land by all the co-shares in a zamindari, a co-sharer-landlord is not competent to obtain a partial ejectment of the tenants to the extent of his share, unless the tenancy has been determined by all the co-sharers. This view seems to have been based upon the Bengal Tenancy Act, as pointed out by Seshagiri Ayyar, J. in Syed Ahmed Sahib Shuttari v. Magnesite Syndicate Limited . 1916 I.L.R 39 Mad. 1049.. Whatever may be the view held by the Calcutta High Court, that view has not been adopted by the Madras High Court, which has clearly applied the English Law on the point as that applicable in that State. It was also pointed out that there was nothing in the tenancy laws of the Madras State which preclude one of the co-sharers to ask for possession of his share of the joint property leased out by joint owners. Even in the Calcutta line of cases where the English law has not been held to be applicable and it was held that it is not competent to any one of the co-owners to determine the contract which is entire, it was nonetheless observed that it could be so determined where special circumstances are established, like collusion between the tenant and one of the lessors etc. In the instant case, collusion has been amply established. The difference between the Indian and English law was pointed out in Sri Raja Simhadri Appa Rao v. Prattipati Ramayya . 1906 I.L.R 29 Mad. 29., where it was held that one of the several joint lessors who had become separately entitled to his share of the lands leased, is entitled to enforce the forfeiture clause in the lease-deed separately as regards his share of the lands. Sankaran Nair, J., observed:—

“………where there is a relation created by contract with several joint landlords according to the English cases, that relation subsists, only so long as all of them wish it to continue, while, according to the Indian cases, it subsists until all of them agree to put an end to it; and it is not competent to any one of them to determine a contract which is entire, unless there are any special circumstances in the case, like collusion between a tenant and one of the lessors, etc.”

10. The learned Judge, however, did not give a final opinion though the other eminent judge Sri S. Subramania Ayyar, O.C.J, held that a tenant-in-common may obtain ejectment to the extent of his interest on giving proper notice to quit, and the inclusion in such a suit of the other co-sharers, as defendants is merely the inclusion of persons properly parties to the proceeding and not of litigants against whom a separate claim, having no connection with ejectment, is made.

11. In Syed Ahmed Sahib Shuttari v. Magnesite Syndicate, Ltd., another Bench of the Madras High Court consisting of Seshagiri Ayyar and Kumaraswami Sastriyar, JJ. followed the view of Sankaran Nair, J., in Sri Raja Simhadri Apparao v. Prattipati Ramayya, and after considering the English and American Law, adopted those principles as being applicable equally to this country. It was held in that case, that a tenant-in-common is entitled to sue for his share of the property demised, where a forfeiture has been incurred under the terms of the lease. Having regard to the conflict of authorities, they had the whole question argued before them. Dealing with the contentiou that under the English Law, it is open to a tenant-in-common to sue for the recovery of his share of the land demised, and that there is nothing in the statute law of this country which restricts such a right, it has been observed at page 1052 as follows:—

“The view maintained by jurists that ‘joint tenants are seized per my et per tout (by the half, or moiety, and by all) has been commented upon in the note to Murray v. Hall . 1849 7 C.B 455. and its limitations have been explained. It is said in English books that the right to bring separate suits is due to the conception that it is a concession to the lessee that he should be allowed to take a joint lease, and that by the mere fact of joining in the lease, the several owners are not debarred from enforcing their individual rights. Therefore, unless there is something in the conditions of this country which warrants departure from the principles applicable to tenants-in-common both in England and in America, we must hold that the plaintiff is entitled to sue for his share. On the other hand, we find that the rule of law as obtains in England is accepted by the legislature in this country in sections 37 and 109 of the Transfer of Property Act. The view of the Calcutta High Court that the English decisions do not apply to India may be traceable to the suggestion thrown out by Mr. Justice Rampini in the course of the argument in Gopal Ram Mohuri v. Kkakeswar Pershad Narain, that under the Bengal Tenancy Act a fractional shareholder is not entitled to maintain an action in ejectment against the joint lessee. So far as we are aware, this principle is not recognized in the tenancy legislation of this Presidency. Nor has our attention been drawn by counsel to any provision to that effect.”

12. This being the law, we have no hesitation in holding that one of the joint owners, or co-owners can ask for eviction of a tenant who has been let in by both the owners, notwithstanding that the other co-owner or co-owners are not willing to join the plaintiff or the petitioner in asking for eviction and on the other hand, do not want a tenant to be evicted, provided such co-owner or co-owners are made parties to the suit or petition. If this is not the law, cases can be envisaged where one of the co-owners in collusion with the tenant can effect complete” dispossession of the other co-owner by merely getting the tenant to acknowledge his sole possession and title. Where a co-owner is entitled to possession of immovable property in entirety along with the other co-owners it is not permissible for one of the co-owners, subsequently in league with the tenant to permit him to be in possession of the whole of the premises on behalf of himself alone, which in effect will oust the other co-owners of the possession of the property to which he is of right entitled.

13. In this case as we have said earlier, several grounds stated in section 10(2) of the Act for evicting a tenant are present. The 1st respondent before the Rent Controller (petitioner herein) not only had not paid rent to the petitioner before the Rent Controller (1st respondent herein) as he was bound to do under the terms of the lease but also had sub-leased the premises and had denied her title. In these circumstances the Rent Controller has ample jurisdiction to order eviction of the petitioner herein. The revision petition is accordingly dismissed with costs of the 1st respondent, the 2nd respondent being ex parte.

14. Petition dismissed.