Dr. Indira Shah, J.—This Revision Petition under Section 115 of the Code of Civil Procedure, 1908 has been filed against the judgment and decree dated 12-12-2014 passed by the learned Civil Judge No. 2. Kamrup (M), Guwahati in T.A. No. 24 of 2014 upholding the judgment and decree dated 27-01-2014 passed by the learned Munsiff No.1, Kamrup (M), Guwahati in T.S. No. 231 of 2006 whereby the suit was decreed for eviction of the petitioners and recovery of Rs. 4,800/- as arrears of rent.
2. I have heard Mr. S.P. Roy, learned Counsel appearing for the petitioners. Also heard Mr. B.K. Jain, learned counsel appearing on behalf of the respondent Nos. 1 to 5 and Ms. M. Rava, learned counsel appearing on behalf of the respondent No.6.
3. The respondents as plaintiffs filed the Title Suit No. 87 of 1977 against Chouthmal Kucheria (since deceased) as ''Karta'' of M/s Chouthmal Jaichandlal praying for eviction and claiming the rent as well as compensation. On the death of Chouthmal Kucheria, his legal heirs Shri Jaichandlal Kucheria was impleaded as Defendant No. 1 and the suit was transferred to the Court of Assistant District Judge No. 2 and it was renumbered as T.S. No. 16 of 1983.
4. The original defendant, Chouthmal Kucheria had married Smti. Bhawri Devi Kucheria and out of the said wedlock, he had two daughters, namely, Smti Amrao Kucheria and Smti Premlata Kucheria and one son, namely, Jaichand Lal Kucheria. Smti Amrao Kucheria died leaving behind her two daughters, namely, Smti Suman Kucheria and Smti Snehlata Kucheria and two sons, namely, Shri Dipak Kucheria and Sri Vishal Kucheria.
5. After the death of his wife, Chouthmal Kucheria married Smti Renu Kucheria, who was impleaded in the suit as Defendant No.2 vide order dated 14-10-1985. The defendant left behind the following legal heirs from his second wife, Renu Kucheria (wife), Sir Vineet Kucheria (son), Sri Vivek Cucheria (son) and Smti Rachana Kucheria (daughter). Joychand Lal Kucheria died on 23-08-2007 leaving behind his wife Rajkumari Kucheria, Smti Sangita Kucheria (daughter) and two sons, namely, Sri Vikash Kucheria and Sri Manish Kucheria.
6. The contention of the petitioners is that except the present petitioners, none of the legal heirs of Choutmal Kucheria was impleaded in the said suit by the respondents/plaintiffs. Hence the suit was bad for non-joinder of necessary parties. The substituted defendant, however, contested the suit. But the suit was decreed in favour of the respondents/plaintiffs. The defendants filed Title Appeal No. 24 of 2014 and the same was also dismissed.
7. It is submitted by the learned counsel for the petitioners that due to non-substitution of all the legal heirs of the original defendant, namely, Chouthmal Kucheria, the suit abated under Order 22, Rule 4 of the Code of Civil Procedure, 1908. Moreover, the plaintiffs had taken forcible possession of 1st Floor of the suit premises and the major portion of ground floor but the schedule of the plaint was not amended. Therefore, the decree is inexecutable for proper identification of the suit premises. The respondent Nos. 1 to 5, were the legal heirs of original plaintiff, Smti. Bhawri Devi Kucheria, who claimed title on the basis of a ''will'', though, the ''will'' was not probated.
8. Learned counsel appearing on behalf of the respondents submitted that the suit for ejactment was filed against the Hindu Undivided Family i.e. M/s. Chouthmal Jaichandlal and Chouthmal Kurcheria being ''Karta'' of the family represented the Hindu Undivided Family in the suit. After his death, the successor ''Karta'' Joychandlal Kucheria was substituted. Therefore, there is no infirmity in the decree. The substituted ''Karta'' in his written statement admitted that the major portion of the suit premises was vacated through mutual compromise and since the suit premises are clearly identifiable, the decree can be executed in the part of the suit premises where the defendants are still in possession. The substituted plaintiffs are the natural legal heirs of original plaintiff and therefore, non-probation of the ''will'' have no implication in the execution of the decree as the decree holders are co-owners of the property.
9. Defendants, in their written statement, alleged that the plaintiffs are not absolutely owners of the property. However, they admitted the right, title and interest of the plaintiffs in the suit property. It is settled principle of law that suit for eviction can be filed by one of the co-owners of the premises. The landlord within the meaning of Urban Areas Rent Control Act is a person, who collects rent from the tenants. The suit was filed against M/s Chouthmal Jaichandlal. Chouthmal being ''Karta'' of the family being represented the Hindu Undivided Family (HUF), on his death, Jaichandlal Kucheria, S/o Chouthmal Kucheria, being the ''Karta'' of the HUF was impleaded.
10. M/s Chouthmal Jaichandlal was defendant as per the plaint. There was specific averment that the defendant is the ''Karta'' and the manager of HUF. M/s Chouthmal Jaichandlal and was carrying on JUF business. On the death of Jaichandlal, his son Vineet Kucheria was impleaded as ''Karta'' of M/s Chouthmal Jaichandlal. According to plaintiffs, on the death of his father, the HUF of M/s Chouthmal Jaichandlal was dissolved and the estate of Chouthmal Jaichandlal was taken over by Smti. Renu Devi Kucheria and she continued the business in the name and style of M/s Chouthmal Jaichandlal as its sole proprietor. It is evident that the HUF of Chouthmal Jaichandlal has not been dissolved even after the death of Chouthmal and Jaichandlal. The present defendant admitted in his written statement that on account of refusal to receive rent by the plaintiffs, the father of the defendant i.e. Jaichandlal deposited the rent in the Court from the month of September,1976. After his death, the mother of the defendant continued to deposit rent in the Court.
11. In the case of Sri Ram Pasricha v. Jagannath and Others, reported in (1976) 4 SCC 184, it was held in para 15 and 27 as under:-
"15. Being faced with this position counsel submits that since the requirements are found to be of the co-owners, the suit cannot be decreed in their absence. This is a repetition of the first submission in a different form. Counsel relied upon McIntyre v. Hardcastle. The English rule laid down in that decision is that if two or more landlords institute a suit for possession on the ground that a dwelling house is required for occupation of one of them as a residence the suit would fail. The requirement, according to the decision, must be of all the landlords.
27. Jurisprudentially it is not correct to say that a co-owner of a property is not its owner. He owns every part of the composite property along with others and it cannot be said that he is only a part owner or a factional owner of the property. The position will change only when partition takes place. It is, therefore, not possible to accept the submission that the plaintiff who is admittedly the landlord and co-owner of the premises is not the owner of the premises within the meaning of Section 13(1)(f). It is not necessary to establish that the plaintiff is the only owner of the property for the purpose of Section 13(1)(f) as long as he is a co-owner of the property being at the same time the acknowledged landlord of the defendants."
12. DW.2, Vineet Kucheria, in his deposition, admitted that after the death of Chouthmal Kucheria, only Jaichandlal Kucheria was substituted as legal representative and Smti Renu Devi Kucheria got herself impleaded in the suit on her own motion. Therefore, the suit cannot abate on the death of Chouthmal Kucheria and Jaichandlal Kucheria. He admitted that in the written statement, defendant No. 2, Smti Renu Devi Kucheria has not mentioned that HUF has been dissolved after the death of Choutmal Kucheria. He could not say that after the death of his father whether M/s Chouthmal Jaichandlal continued to exist or not as HUF. He further admitted that ⅓rd of the suit premises is in their possession as tenant. The rent is being deposited by him or by his staff. The rents presently are being deposited in the name of Smti Bhawri Devi Kucheria. He stated that rent for the month of August, 1976 was sent to the plaintiff by demand draft of Rs. 400/- but he could not say as to in which mode, the demand draft was sent to the plaintiffs. He failed to show that the demand draft was refused and returned.
13. The rent for the month of September, 1976 was deposited on 10-9-1976 and the rent was deposited in advance prior to its becoming due. In the rent deposit case i.e. Misc. (NJ) Case No. 3426 of 2002, the process fee with copy of petition and notice to the landlord was not found with record. The record also did not contain any copy of challan. In the Misc. (NJ) cases, there were 8 parties but only 2 copies of notices were found with the petition. The challans were not found. What steps were taken along with the rent deposit application was not known to the defendant. DW.1 admitted that the firm M/s Chouthmal Jaichandlal still exists. The house rents in the court were deposited by Chouthmal Jaichandlal. He further admitted that since the defendants are tenant of plaintiffs, they are offering rents to the plaintiffs. Plaintiffs being the landlord in respect of the suit premises, they are entitled to get the rent. None other than the plaintiffs demanded rents from the defendants. The ⅔rd portion of the suit premises were handed over the legal heirs of the original plaintiff in pursuant to a compromise. This compromise was made with the plaintiffs since they are landlord/owners of the suit premises.
14. On the death of Chouthmal Kucheria, his son, Jaichalndlal Kucheria, was impleaded and on his death, his son Vineet Kucheria. The defendant''s case is that the defendant''s firm M/s Chouthmal Jaichandlal was dissolved on the death of Jaichandlal and Smti Renu Devi become the owner of the HUF property. Smti Renu Devi Kucheria impleaded herself in the suit and therefore, there is no question of abatement of the suit due to non-substitution of all legal heirs of the defendant Chouthmal Kurcheria.
15. The allegation of the defendant is that the plaintiffs had taken forcibly possession of the entire first floor and major portion of the ground floor is not true in view of the evidence of DW.1, wherein, he admitted that the possession of the part of the suit premises was handed over to the plaintiffs on an amicable settlement. The defendants are admitting which part of the suit premises are in their possession. Therefore, the suit property is identifiable and it cannot be said that the decree is inexecutable. The plaintiffs are the legal heirs of original plaintiff Bhawri Devi Tewari. They are natural heirs. Therefore, the probation of ''will'' in case of ejectment of tenant may not be required. Admittedly, they are co-owners of the property.
16. Moreover, this Court has limited scope to interfere with the judgment and decree of the learned trial Court or appellate Court, in exercise of revisional jurisdiction only on the ground that a different view on facts elicited was possible. In case of the Managing Director (MIG) Hindustan Aeronautics Ltd. Balanagar, Hyderabad and Another v. Ajit Prasad Taway, Manager (Purchase and Stores) Hindustan Aeronautics Ltd. Balanagar, Hyderbad, AIR 1973 SC 76, it has been held at para 5, as under:-
"5. In our opinion the High Court had no jurisdiction to interfere with the order of the first appellate court. It is not the conclusion of the High Court that the first appellate court had no jurisdiction to make the order that it made. The order of the first appellate court may be right or wrong; may be in accordance with law or may not be in accordance with law; but one thing is clear that it had jurisdiction to make that order. It is not the case that the first appellate court exercised its jurisdiction either illegally or with material irregularity. That being so, the High Court could not have invoked its jurisdiction under Section 115 of the Civil Procedure Code."
17. Similarly, in the case of M/s. Bhojraj Kunwarji Oil Mill and Ginning Factory and Another v. Yograjsinha Shankersinha Parihar and Others, AIR 1984 SC 1894, it was observed in para-4, as under:-
"4. Against this order, a revision petition was preferred which was heard by the learned Assistant Judge. We find it difficult to appreciate the approach of the learned Assistant Judge while exercising revisional jurisdiction in interfering with an eminently just order. And the High Court disposed of the matter observing that the grounds urged by the appellants for seeking condonation of delay were obviously no grounds at all. Again this approach left us unconvinced. If the trial Court had the jurisdiction to condone delay, we find no material for holding that there was any impropriety in exercising this jurisdiction. Therefore, we are of the opinion that both the learned Assistant Judge and the High Court were not justified in interfering with the order of the trial Court, in exercise of the revisional jurisdiction on the only ground that a different view on facts elicited was possible. This approach hardly permits interference in exercise of revisional jurisdiction."
18. In view of the above, this Court is of the considered opinion that this revision petition is devoid of merits and accordingly, it is dismissed and disposed of. There shall be no order as to costs. Return the LCRs along with a copy of this judgment and order to the learned court below forthwith.
