S.S.SANDHAWALIA, J.

1. In Smt, Kanta Goel V/s. B.P. Pathak, AIR 1977 SC 1599 their Lordships, whilst reiterating the view in Sri Ram Pasricha V/s. Jagannath, AIR 1976 SC 2335, observed that the law had been put beyond all doubt that the absence of one of the other co-owners on the record does not in the least disentitle the plaintiff co-owner from suing and succeeding in the proceeding for the eviction of a tenant. They, however, observed that -

"We are not called upon to consider the piquant situation that might arise if some of the co-owners wanted the tenant to continue contrary to the relief claimed by the evicting co-owner."

That piquant situation foreshadowed by their Lordships seems to have now squarely arisen in the present case and calls for a direct answer. For the sake of precision, the issue, inter alia, in the present context may be formulated in the terms following :-

Whether under the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 one of the two joint co-owners can evict the tenant from the whole of the premises on the ground of the violation of S.11(1)(d) of the said Act despite the desire and volition of the other co-owner to allow the tenant to continue in occupation ?

In this second appeal referred to the Full Bench for an authoritative adjudication on the issue aforesaid, the facts need notice with relative brevity because of the firm findings of fact arrived at either concurrently or by the first appellate court. Admittedly the plaintiff and defendant 2 are co-owners in equal shares and landlords of the premises (being a two storeyed house situated in mohalla Khankah Alamganj Pulpar in the town of Biharsharif) from which eviction was sought by the plaintiff alone against the contesting defendant 1. The cause of action, inter alia, for the alleged non-payment of rent goes back to more than twenty-two years for the months of Dec. 1964 and Jan. 1965. The principal defendant 1, namely, Alijan Mian was the original tenant of the ground floor of the house abovesaid on the monthly rental of Rs. 60.00 according to the English calendar and the rent of each month was payable on the 1st day of the following month. The aforesaid defendant 1 Alijan Mian having died during the pendency of the suit, his legal representatives were substituted in his place. It was the plaintiffs case that by agreement with defendant 2, namely, Bibi Maimuna Khatoon, the plaintiff invariably collected the entire rent from defendant 1. It was alleged that defendant 1 did not pay the rent of the said disputed house to the plaintiff since Dec. 1964. On the ground of nonpayment of rent for two months, the plaintiff on her behalf as well as on behalf of defendant 2 was entitled to evict the defendant 1 from the disputed house. A notice dated the 24th May, 1965 by registered post was duly served on defendant 1 terminating the tenancy of the disputed premises whilst defendant 2 was impleaded as a pro forma defendant.

2. In contesting the suit, defendant 1 took the plea that he had continued as a tenant of the premises for over twenty years. It was his case that the rent of the holding in dispute was being disputed between the two co-owners, the information of which was given to the defendant tenant in the name of Sharfuddin, the son of Alijan Mian (the original tenant) by a notice dated 16th Dec. 1964. Thereafter the defendant was paying Rs. 30.00 being half of the rent of the holding in suit to defendant 2 and the other half of the same was tendered to the plaintiff which he refused to accept. It was claimed that the plaintiff wanted to realise the entire rent of the holding in suit to which he was not entitled. Since after the notice given to Sharfuddin, son of Alijan Mian, the plaintiff never collected the entire rent from defendant 1, and her share had been tendered and no wilful neglect in payment of rent had thus been made. It was the firm stand that the plaintiff alone had no right to evict the defendant tenant from the