A co-sharer can file an eviction suit against tenants without including other co-sharers, and valid notice under Section 106 of the Transfer of Property Act suffices for eviction.

JUDGMENT :

Sashikanta Mishra, J.

The defendants have filed this appeal against a confirming judgment. The suit filed by the plaintiff for eviction of the defendants from the suit house was decreed by the trial court and confirmed by the 1st Appellate Court.

2. For convenience, the parties are described as per their respective status before the trial Court.

3. The plaintiff’s case, briefly stated is that he is the son of late Bhabanipati Ghose and has three married sisters. The sisters have relinquished their right over their land appertaining to Hal Plot No.274 under Hal Khata No.135 of Golapbag in Baripada town measuring Ac.0.08 decimals in favour of the plaintiff. A house situates in the north-west side of the land over an area measuring Ac.0.02 decimals and 500 square links. The suit house is said to be in a dilapidated condition. The father of the defendants was inducted as a tenant into the suit house about thirty two years prior to filing of the suit. After his death, the defendants continued to be in possession paying rent @Rs.350/- per month. However in January, 2008, they stopped paying house rent. The plaintiff wanted to demolish the suit house in order to make further construction thereon. Accordingly, on 03.10.2008 he issued a notice under Section 106 of the T.P. Act to the defendants asking them to vacate the suit house. Though the defendants received the notice on 07.10.2008, they did not vacate the house. Hence, the suit.

4. The defendants appeared and contested the suit by filing a joint written statement, inter alia, taking the plea of non-joinder of the three sisters of the plaintiff as parties and further that the suit house was not properly described. On facts, it was pleaded that the plaintiff’s father having come to Baripada was in search of a person to stay in his house to look after his property and family members. Accordingly, on his request the father of the defendants started residing in the suit house providing service to the father of the plaintiff. He used to pay Rs.10/- per month for use of the suit house.

5. On such pleadings, the trial court framed the following issues for determination:-

i) Whether the suit is maintainable in the eye of law?

ii) Whether the plaintiff has got any cause of action to file the suit?

iii) Whether the suit is hit under Order 7 Rule 3 CPC?

iv) Whether the suit is bade for non-joinder of necessary parties?

v) Whether the defendants are the tenants under the plaintiff on the basis of monthly rent Rs.350/- per month?

vi) Whether the defendants have withheld the payment of monthly rent to the plaintiff since January, 2008 and plaintiff issued notice on 03.10.2008 u/s. 106 of the T.P. Act to vacate the suit house within one month hence?

vii) To what other relief(s) the plaintiff is entitled to?

6. Taking up Issue Nos.5, 6, and 7 for consideration at the outset, the trial court examined the oral and documentary evidence on record to hold that the defendants have been residing in the suit house as tenants since 2008 without paying rent. The plaintiff is therefore entitled to realize the arrear rent from them. The trial court thereafter held that the notice under Section 106 of the T.P. Act having been validly served, the defendants have lost the status of tenancy and as such they are trespassers over the suit land, liable to be evicted. On Issue No.3, the trial court, taking note of the admission of the defendants in the written statement regarding existence of the suit house, held that the suit was not hit by Order-VII Rule 3 of CPC. On Issue No.4, it was held that the plaintiff being one of the co-sharers is entitled to claim eviction on b