JUDGMENT :

A.K. RATH, J.

1. This is an appeal against the judgment and decree dated 24.2.2005 passed by the learned Addl. District Judge, Jharsuguda in R.F.A. (T.S.) No. 3 of 2004 reversing the judgment and decree dated 24.4.2004 and 7.5.2004 respectively passed by the learned Civil Judge (Junior Division), Jharsuguda in T.S. No. 24/120 of 1997-98.

2. The plaintiff is the appellant in a suit for eviction and realization of rent. The case of the plaintiff is that he has inducted the defendant as a tenant into a part of the suit house bearing holding no. 98 appertaining to M.S. Plot No. 554/3970, area Ac.0.13 dec. He used to pay rent till 1994. Thereafter he stopped payment. In spite of several requests, he did not pay the rent for which the plaintiff issued notice under Section 106 of Transfer of Property Act, 1882 (hereinafter referred as “T.P. Act”) on 21.02.1997 to vacate the suit house.

3. Pursuant to issuance of summons, the defendant entered appearance and filed written statement contending, inter-alia, that there is no relationship of landlord and tenant between the plaintiff and defendant. The father of the plaintiff is the owner of the suit premises. Thus, the plaintiff is not competent to issue notice under Section 106 of T.P. Act and as such the suit is not maintainable.

4. On the interse pleadings of the parties, learned trial court struck six issues. They are:-

“(1) Whether the defendant is a tenant of the suit house under the plaintiff?

(2) If it is held that the defendant is the tenant under the plaintiff, whether he is to be evicted from the suit house?

(3) Whether the plaintiff is entitled to realize Rs.5400/- towards arrears rent?

(4) Whether the suit is maintainable due to non-joinder of necessary party?

(5) Whether the plaintiff has any cause of action to file this suit?

(6) Whether the plaintiff is entitled to any other relief claim in the suit?”

5. To substantiate the case, the plaintiff had examined three witnesses and on his behalf eight documents had been exhibited. The defendant had examined one witness and on his behalf eleven documents had been exhibited.

6. Learned trial court came to hold that the defendant is a tenant of the suit shop room under the plaintiff, his brother and father. Notice under Section 106 of the T.P. Act is a valid one. Plaintiff being the landlord has right to determine the tenancy. It further held that the defendant is liable to pay an amount of Rs.5400/- and accordingly, answered issue nos. 1 to 3. It further held that the suit is maintainable and answered issue no. 4. Held so, learned trial court decreed the suit.

7. Aggrieved by and dissatisfied with the judgment and decree passed by the learned trial court, the defendant filed R.F.A. (T.S.) No. 3 of 2004 before the learned Addl. District Judge, Jharsuguda. Learned lower appellate court came to hold that the father of the plaintiff never inducted the defendant as a tenant. Rent was collected from the defendant by the father of the plaintiff and his uncle. The plaintiff is not competent to terminate the tenancy. Held so, learned lower appellate court allowed the appeal.

8. The second appeal was admitted on the following substantial question of law:

“Whether the learned lower Appellate Court has committed illegality recording finding that a suit for eviction of the tenant filed by the son, when the father has inducted the tenant, is not maintainable?”

9. Heard Mr. K.M. Mishra, learned counsel for the appellant and Mr. N.C. Pati, learned counsel for the respondent.

10. Learned counsel for the appellant submitted that the plaintiff being one of the co-sharer of the suit can maintain the suit for eviction. One co-sharer can issue notice under Section 106 of T.P. Act for eviction of the defendant. The defendant was inducted as a tenant. He used to pay rent to the plaintiff. Sometimes he paid rent to the father of the plaintiff and his uncle. Thus the defendant cannot deny the relationship of landlord and tenant on jejune grounds. To buttress his