The main legal point established in the judgment is that the maintainability of a suit, the non-impleadment of necessary parties, and the title to the property are crucial considerations in eviction cases.

JUDGMENT

Dama Seshadri Naidu, J. - Facts:

The applicants are the tenants, and the respondents the owners. Initially, the respondents'' father, the original owner, let out the property to the applicants'' predecessors. The applicants'' father and their elder paternal uncle were the tenants. It emerged from the parallel litigation in R.A.D. Suit No.54 of 1994 that during their lifetime, the brothers divided the tenanted property. They started living separately, under the same roof though. That is how the oncejoint-tenancy has been split, and the leased property was recognized as Room Nos.3 and 3A.

2. The respondents, as the owners, filed R.A.E. & Suit No.344/599 of 2009 before the Small Causes Court at Bombay. It was against Smt. Shaikh Naboota, the deceased original tenant''s wife and the applicant''s mother. The eviction concerned the property the applicant''s father occupied. On trial, the court decreed the suit on 28th March 2013. As the defendant died pending the suit, the applicants, as legal representatives, came on record and defended the proceedings. After suffering a decree, they filed a statutory appeal before the Appellate Bench of the Small Cause Court. Eventually, 30th January 2018 the Appeal No. 59 of 2013 too was dismissed. Further aggrieved, the applicants have filed this Civil Revision Application.

Submissions:

Applicants'':

3. In the above factual backdrop, Shri Dhirendra D. Singh, the learned counsel for the applicants, has submitted that the judgments of both the courts below suffer from incurable legal infirmities. To elaborate, he has submitted that "admittedly" the tenancy is joint. Yet the owners chose to file the suit only against one co-tenant, that is the applicants'' mother. So, according to him, no suit for eviction could be maintained exclusively against one co-tenant. To support his contentions, Shri Singh has relied on Uma Devi Khanna v. Ava Rani Das, (2005) 2 RCR(Rent) 697 , a Division Bench judgment of Kolkata High Court.

4. Shri Singh has also contended that, as the appeal only continues the original proceedings, the Appellate Court is a court of both fact and law. The applicant, therefore, has every right to raise even a plea of fact at the Appellate stage. In the alternative, Shri Singh has contended that the maintainability of a suit is a question of law and it can be raised at any stage of the proceedings before the proceedings culminate. To support his contentions, he has relied on State of Rajasthan v. Rao Raja Kalyan Singh, (1971) AIR SC 2018 .

5. According to Mr. Singh, the decree the owners have secured has become nullity in the eye of law because they failed to bring on record all the necessary parties. So they cannot enforce it. He has also contended, in the alternative, that the leased structures stand on the property that actually belongs to the Municipal Corporation. Therefore, the owners have no title to the property to press on with the decree and to get the applicants evicted.

Respondents'':

6. In response, Shri Tushar Dahibawkar, the landlords'' counsel, has submitted that there was no plea about the nonjoinder of necessary party. Neither the applicants nor their predecessors, including their mother against whom the eviction proceedings were originally initiated, ever pleaded that there are co-tenants or joint tenants, besides the defendant. To elaborate, he has submitted that in Suit No. 54 of 1994, filed by the applicants'' mother against her brother-in-law, that is her husband''s elder brother, the court on evidence has held that the brothers had the property divided as room No.3 and 3A and started living separately. Then, eventually, through the judgment dated 22nd February 2001, the trial court declared the applicant''s mother as tenant occupying room No.3A.

7. About the lack of title to the property, Shri Dahibawkar has submitted that though the applicants raised that plea, the courts below rejected that on the merits.

8. Heard Shri Dhirendra Singh, the learned counsel f