The legal principle established in the judgment is that the provision regarding inheritance of tenancy in respect of Mohammedans and Hindus is not different, and the principle allowing one co-owner to file and maintain an eviction petition is based on the doctrine of agency, which has no concern with Muslim Personal Law.

1. Present Revision Petition has been filed against order dated 18th July, 2008 by virtue of which petitioners/tenants’ leave to defend application has been dismissed.

2. Mr. J.K. Jain, learned Counsel for petitioners submitted that Additional Rent Controller (in short ‘ARC’) had not considered the effect and impact of Muslim Personal Law in the present case, as here a Muslim landlord/ owner died leaving behind two sons and four daughters. According to Mr. Jain, the principle that one co-owner can file and maintain an independent eviction petition without impleading the other co-owners, applies to Hindus and not to Muslims. He submitted that after death of a Muslim owner/landlord all his legal heirs become owners in common and not co-owners as in Hindus. According to him, all heirs are necessary to be impleaded in eviction petition and as respondent no. 1/landlord failed to do so, eviction petition was liable to be dismissed. In this context, Mr. Jain referred to and relied upon a judgment in the case of Mt. Fardosjahan Begum w/o Syed Alay Rasul and others Vs. Kazi Shafiddin s/o Kazi Shujatali Musalman and others reported in AIR (29) 1942 Nagpur 75 wherein it has been held as under :-

“The legal position as regards Mohammedans is prima facie that when the owner dies leaving a number of heirs those heirs take the estate as tenants-in-common. They have each a separate right and at any moment any one can demand administration of the estate so as to demarcate the property that falls to that one’s share. But until that is done they hold, not as joint tenants as will be the case were they Hindus which joint tenancy is broken up by partition, but as tenants-in-common which co-tenancy is broken up by severance of the shares normally done by means of administration or by partition. Administration is normally the better course because then all questions of indebtedness of the deceased, priority of claims and so forth can be properly adjusted. However, no such point here really arises. What we are concerned with is whether the appellants have, as a consequence of the operation of law relating to ouster, lost the title which they have prima facie established. In our opinion, a Mohammedan prima facie establishes title when he shows that the estate in question was in A, that he is in the line of heirs from A and nearer heirs are dead and that there has been no administration which starts a new line of descent not from A but from (say) X, in which case he will then have to establish that he is in the line of heirs from X. He, though establishing that prima facie case, may be defeated by his opponent (say) M if M can establish that the claimant has been ousted. Here therefore the plaintiffs having shown that they are in the line of descent from Babar Ali, having shown that there has never been an administration of this estate or a splitting of the co-tenancies into a number of separate shares demarcated and assigned, have established a prima facie case. It is then for the defence to establish that the prima facie title has been lost as a consequence of ouster. This case has hitherto been approached along the lines that that defence is established once it is shown that there has been adverse possession for 12 years. In our opinion that is a misunderstanding of the legal position……”

3. Mr. Jain further stated that Additional Rent Controller has erroneously dismissed petitioners’ leave to defend application without deciding petitioners’ application wherein it had been prayed that petitioners be allowed to bring on record the fact that the alleged partition deed on which respondent no. 1 is relying upon to be owner of the suit property is absolutely illegal, uncalled for and having no force in the eyes of law as petitioners have already challenged the ownership of respondent no. 1 in their application for leave to defend.

4. Mr. Jabbar Hussain, learned Counsel for respondent no. 1 at the outset submitted that provision rega