This second appeal under Section 100, CPC is directed against judgment and decree dated 25.03.2009 passed by Civil Judge (Senior Division), Nathdwara decreeing the suit filed by the respondent-plaintiff for possession of shop, arrears of rent and mesne profit and appellate judgment and decree dated 27.04.2012 passed by Additional District Judge, Nathdwara, whereby, the appeal preferred by the appellant-defendant was rejected.

2. The facts in brief may be noticed thus: the plaintiff Gopal son of Fateh Lal Arora filed a suit, inter alia, claiming that the shop in question was on rent with the defendant at Rs.700/- per month; as the said shop was required by him, he had issued notice to the tenant terminating the tenancy w.e.f. 30.04.2004 and asked for possession; in reply to the notice, the defendant denied the ownership of the plaintiff; the plaintiff claimed vacant possession of the shop, outstanding rent of Rs.1,400/- and mesne profit @ Rs.5,000/- per month from 31.05.2004.

3. A written statement was filed by the defendant-appellant, inter alia, contending that the shop in question was owned by Fateh Lal, who was succeeded by his daughter Manhori Devi, who has also died, who has a son Subhash, Radha Devi and Munna Devi are daughters of Fateh Lal and Gopal is not the sole owner of the shop. As the other legal representatives of Fateh Lal have not been impleaded as party, the suit was not maintainable; the notice issued was illegal and the suit was not maintainable in absence of the other legal representatives.

4. A replication was filed by the plaintiff denying the facts indicated in the written statement.

5. The trial court framed nine issues and after evidence was led by the parties, it came to the conclusion that it was admitted by the defendant that after death of Sallu Bai, mother of the plaintiff, no one else has been paid the rent and the plaintiff has exhibited Exhibits-A/17 to A/33 for the period 12.05.2002 to 09.03.2004, which proves that he has been receiving the rent of the said premises and, therefore, as the plaintiff was landlord, non-impleadment of any of the other legal representatives of Fateh Lal does not affect the maintainability of the suit. The notice issued was valid and decreed the suit for possession along with mesne profit @ Rs.700/- per month.

6. On appeal being filed by the appellant-defendant, the first appellate court came to the conclusion that even if definition as indicated in Section 105 of the Transfer of Property Act, 1882 (the Act) is taken into consideration, the plaintiff is a lessor as he has been receiving the month to month rent and, therefore, the other legal representatives are not necessary parties. The first appellate court also came to the conclusion that the notice under Section 106 of the Act issued by the plaintiff was valid and upheld the judgment and decree passed by the trial court.

7. It was submitted by learned counsel for the appellant that admittedly the property was owned by Fateh Lal and the suit was filed by Gopal, one of the legal representatives of deceased Fateh Lal only without impleading the other legal representatives as party, who are admittedly co-owners of the tenanted premises and, as such, the suit was not maintainable. It was further submitted that the notice under Section 106 of the Act was also not valid as statutory time was not allowed and the notice was not properly served.

8. Reliance was placed on judgment of Gujarat High Court in Nanalal Girdharlal & Anr. v. Gulamnabi Jamalbhai Motorwala & Ors., AIR 1973 Guj 131 and Sucharita Pradhan & Ors. v. M/s. U.P. Twiga Fibreglass Ltd. & Ors., AIR 2002 Del 1.

9. Per contra, learned counsel for the respondent submitted that the suit by one of the co-owners of the property for ejectment of tenant is maintainable and it is not open for the tenant to raise objection in this regard. It was further submitted that the judgment in the case of Sucharita Pradhan, (AIR 2002 Del 1) (supra) the Court proceeds on the assu