A co-owner of a property cannot unilaterally determine a tenancy or file an eviction suit without the consent of the other co-owners.

This second appeal arised out of a suit for the defendants eviction on the ground that the latters tenancy in the suit accommodation, was determined by the plaintiff-landlord and after such determination the defendants were liable to be evicted from the said accommodation. The plaintiff also claimed arrears of rent and damages for illegal use and occupation etc. The brief facts are these:

"the plaintiff claimed to be the Karta of his joint family. House No. 261/262, Sadar Bazar, Allahabad, was claimed to belong to the joint family. The defendants were alleged to be the tenants on a monthly rent of Rs. 15/ -. It was alleged that the tenants did not pay the arrears of rent due from them for the period from August, 1961, to September, 1963. After adjustment of two months rent towards repair, a net sum of Rs. 360/- was thus due from them to the plaintiff as arrears of rent for the said period. By a notice dated 3rd October, 1963, the plaintiff asked the defendants to pay the arrears and the tenancy was also determined. However, the defen dants neither paid the arrears of rent nor did they vacate the suit accommodation in their tenancy. Hence the suit. "

The defendants contested the suit. Their contention was that the house was originally taken on rent by their brother Nebhan Das from Banwari Lal the father of the plaintiff. Both of them subsequently-died. The defendants continued to reside in the house as tenants there of. On Banwari Lals death, one Prag Das who happened to be a cousin of the plaintiff, approached the defendants alleging that there had been an agreement in the landlords family where under different co-sharers were allowed to manage and realise the rent of different houses allotted to the different co-sharers. Prag Das claimed that house no. 261/262 was allotted to him. Hence he was entitled to realise the rent of the same. On this representation, formerly Nebhan Das and thereafter the defendants used to pay the rent to Prag Das and such rent was paid up to September, 1963. The plaintiff never objected to the said payment of rent to Prag Das. The defendants further asserted that there was no joint family of the plaintiff and the plain- tiff was not the Karta of any joint family. There had been disruption and so the different co-owners became co-lessors of the property. Hence the plaintiff could not sue the defendants. The suit was said to be bad for non -joinder of necessary parties. The notice dated 3rd October, 1963, was said to be bad and illegal.

The trial court framed the necessary issues and dismissed the suit. The plaintiff went up in appeal to the lower appellate court and the appeal was allowed and the case was remanded to the trial court for framing additional issues relating to the pleas of joint family and parti tion. The trial court thereafter framed the additional issues and after trial again dismissed the suit. The plaintiff again went in appeal to the lower appellate court but the same was dismissed. The plaintiff has now come up in the instant second appeal and in support therefore, I have heard his learned counsel Sri G. N. Kunzru. In opposition, Sri S. J. Hydern, learned counsel for the defendants-respondents, has made his submissions.

Learned counsel for the plaintiff-appellant expressed a grievance that the lower appellate court did not give its findings on all the issues involved in the suit. He emphasised that the remand order passed earlier by the lower appellate court had become final and it was not open to the said court in the subsequent appeal to question earlier remand order. In terms of the said order, the trial court had framed additional issues and the lower appellate court could not take exception to the framing of such additional issues in compliance with the earlier remand order. In my opinion, the lower appellate court, despite the use of phraseology suggesting to the contrary, really never questioned the earlier remand order. Its point of view was that in a suit