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GAUHATI HIGH COURT
D.N.Baruah, J.
On The Death of the Sole Suranjan Deb, His Heirs Smti Sushama Rani Dey and Others -Appellant
Versus
Mustt Hamida Khatun Choudhury and Others -Respondent
Civil Revision No. 171 of 1985
Decided On : 13-03-1992
LANDLORD AND TENANT - EVICTION SUIT - NON-JOINDER OF NECESSARY PARTIES - SUIT FOR EVICTION OF DEMISE HOUSE ALONG WITH HOUSES CONSTRUCTED BY ORIGINAL TENANT - MAINTAINABILITY - SEPARATE AND INDEPENDENT ARRANGEMENT - CAUSE OF ACTION - CIVIL PROCEDURE CODE, 1908 - ORDER 1, RULE 10.
Fact of the Case:
The plaintiffs filed a suit for eviction and recovery of arrears of rent and compensation against the deceased petitioner and others, alleging that the deceased petitioner was a tenant under them in respect of the suit premises and had become a defaulter. The deceased petitioner contested the suit, claiming that his father had constructed two houses on the land with the permission of the original owner and that the suit property was purchased by the plaintiffs and Abdul Musabir Choudhury. He also claimed that the suit was bad for non-joinder of Abdul Musabir Choudhury, one of the co-owners of the land and house, and for non-joinder of the mother, brothers, and sisters of the deceased petitioner.
Finding of the Court:
The trial court decreed the suit, and the appellate court affirmed the decree. The High Court allowed the revision petition filed by the deceased petitioner's legal heirs, holding that the suit was not maintainable due to non-joinder of necessary parties and that the courts below failed to consider the material facts and evidence.
Issues: 1. Whether the suit was maintainable in view of the non-joinder of necessary parties? 2. Whether the cause of action arose in respect of the demise house and the houses constructed by the original tenant could be joined in the same suit?
Ratio Decidendi: 1. The High Court held that the suit was not maintainable due to non-joinder of necessary parties. It observed that the leasehold rights of the demise house devolved upon all the legal heirs of the original tenant and that a suit against the deceased petitioner alone was not maintainable since the interest on the demise house was indivisible. 2. The High Court also held that the suit for eviction of the demise house along with the houses constructed by the original tenant was not maintainable. It observed that the nature of occupation in respect of the demise house and the houses constructed by the original tenant was different, the status of the deceased petitioner and other heirs of his father in respect of the demise house and the houses constructed by the original tenant was not the same and similar, and the cause of action also in respect of the said demise house and the said houses arose at a different point of time.
Final Decision: The High Court allowed the revision petition, set aside the impugned judgments and decrees passed by the courts below, and held that the suit was not maintainable.
2. Suranjan Deb - the predecessors-in-interest of the present petitioners was the first defendant in the trial court. The first to third Opposite Party as plaintiff brought a suit in the court of the Munsiff No. 1, against said Suranjan Deb and fourth to sixth Opposite Party and Rajat Das, as defendants for their eviction from the suit property and also for recovery of Rs. 600/- from the first defendant with interest. The defendants appeared in the suit. Suranjan Deb as first defendant filed written statement denying the allegations. The second to fourth defendant filed written statement. Issues were framed by the trial court. During the trial, the plaintiffs examined one witness and first defendant also examined one witness on his behalf. After conclusion of the trial, the Munsiff decreed the suit on contest.
3. The first defendant preferred appeal (TA No. 48/83) in the Court of the learned Assistant District Judge, Karimganj. The Assistant District Judge also dismissed the appeal on contest and affirmed the judgment and decree passed by the trial court. Hence, the first defendant filed this revision petition before this Court.
4. During the pendency of this petition, the sole petitioner Suranjan Deb - the first defendant (hereinafter referred to "deceased petitioner) died leaving behind his widow, sons and daughters. This Court by order dated 8.4.91 allowed the prayer for substitution and accordingly, the names of the present petitioners 1 to 7 were substituted in place of the deceased petitioner Suranjan Deb. The name of the seventh Opp. party was struck off laicron.
5. The petitioners' case, inter alia, is that first to third Opposite party filed the title suit No 134/80, for eviction and for recovery of arrear rent and compensation against deceased petitioner and others, slating that the deceased petitioner was a tenant under them in respect of the suit premises on an arrangement to pay rent of Rs. 80/- per month and he paid rent up to As win 1386 B.S. and, therefore, did not pay the rent and became a defaulter. He also in violation of the terms of the tenancy, sublet different rooms to the fourth to sixth Opposite Party and Rajat Das. Besides, in the said suit, the plaintiffs also staled that the houses were in a dilapidated condition. Notices were served on the defendants to vacate the house. The defendants filed written statement and contested the suit. It was averred that Surendra nath Deb, the father of the deceased petitioner was the original tenant under Fayaz Ali - the Vendor of (he first 10 third Opposite Party and Abdul Musabir Choudhury and he constructed two houses on the land with the permission of Fayaz Ali - the original owner. The suit property was thereafter purchased by the plaintiffs and Abdul Musabir Choudhury. Surendra Nath Deb - the father of the deceased petitioner became the tenant under the purchasers in respect of the demised house. He was the absolute owner of two houses thus constructed by him. After his death, the deceased petitioner along with his mother, brothers and sisters became owners of the said two houses and lemans in respects of demised house, let-out to Surendra Nath Deb. In the written statement, the deceased petitioner look the ground that the suit was bad for non-joinder of Abdul Musabir Choudhury, one of the co-owners of the land and house and also for non joinder of the mother, brothers and sisters of the deceased petitioner. On the death of the original tenant, i.e. Surendra Nath Deb, the right, title and interest in respect of the house con-strutted by him devolved upon the deceased petitioner and his mother, brothers and sailors. The leas
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