Eviction suits are maintainable without all legal heirs of a deceased tenant if at least one joint tenant is sued, upholding joint tenancy principles.

JUDGEMENT :

SUSMITA PHUKAN KHAUND, J.

1. Heard learned counsel Mr. S.C. Keyal for the petitioners and learned counsel Mr. S. Khound for the respondent.

2. The petitioners in this case are Smti. Kamla Devi, Sri Ankit Agarwalla and Mrs. Munni Agarwalla. The landlord Sri Prodip Banerjee is arrayed as respondent.

3. The petitioners are aggrieved by the order dated 29.10.2022 passed by the learned Munsiff, Naharkatia in Title Suit No. 11/2019. During the pendency of the title suit, a petition under Section 151 of Code of Civil Procedure, 1908 (CPC for short) was filed by the petitioners who are the defendants in the original title suit. It was submitted by the petitioners through their petition under Section 151 of CPC that the plaintiff had instituted the title suit against 7 (Seven) defendants, who are the legal heirs of the original tenant Late Banwarilal Agarwalla. All the defendants are necessary parties to the suit for eviction and in their absence, the suit is not maintainable.

4. It was further submitted by the petitioners that during the course of trial, summonses were served on defendants No. 1, 5 and 7 and they appeared and they are at present contesting the original title suit, but no summonses were served on defendants No. 2, 3 and 4 and the plaintiff also failed to take steps for service of summonses on the defendants No. 2, 3 and 4 inspite of repeated orders by the Court.

5. The Court then vide order dated 29.05.2018 dismissed the case against the defendants No. 2, 3 and 4 on default.

6. It is further submitted that the defendants No. 2, 3 and 4 are necessary parties and they derive a joint and heritable right in the suit for eviction initiated against the legal heirs of the tenant Banwarilal Agarwalla, by the plaintiff. It is averred that the plaintiff i.e. the respondent in this present case realized his fallacy and to cover up the same, the plaintiff filed Misc (J) Case No. 03/2019 for restoration of the case against the defendants No. 2, 3 and 4. It is further submitted that the plaintiff was not diligent and failed to take steps for service of summonses on the defendants No. 2, 3 and 4 and subsequently, the plaintiff filed a petition on 20.03.2021 to withdraw the Misc (J) Case No. 03/2019, which was disposed of by the Court on withdrawal vide order dated 20.03.2021.

7. The case against the defendants No. 2, 3 and 4 was dismissed on 29.05.2018. The defendants then prayed before the learned Trial Court to dismiss the suit against them, the suit being not maintainable due to absence of all necessary and essential parties.

8. On this petition, the impugned order dated 29.10.2022 was passed by the learned Trial Court, after framing a preliminary issue as follows :-

Whether in the absence of all the legal heirs of the deceased tenant Late Sri Banwarilal Agarwala, section 2(f) of the Assam Urban Areas Rent Control Act, 1972 bars the maintainability of the instant suit for eviction under the Act.

9. On the preliminary issue as framed by the learned Trial Court, the petitioners’ prayer to dismiss the suit against the defendants No. 1, 5 and 6, came to be rejected and the preliminary issue was decided in negative.

10. It is contended that the order impugned by the petitioners is not tenable in law as the learned Trial Court misread, misunderstood and misinterpreted the requirement of law and erroneously passed the impugned order.

11. It is further contended that as the Trial Court has dismissed the suit against the other defendants, the title suit against the present defendants i.e. the petitioners, will not be maintainable a