N.A. Abdul Subhan vs G. Alima Bivi and Others

Bellie, J.—The appellant in this second appeal N.A Abdul Subhan, is a tenant in the suit property. As against him a suit O.S. No. 815 of

1971 was filed for eviction by two plaintiffs viz., G. Abdul Razaak and G. Mustapa Kamal as landlords of the same. The appellant herein who was

the defendant in that suit filed a petition u/s 9 of the Tamil Nadu City Tenants Protection Act, 1921 (hereinafter referred to as the Act). That is

O.P. No. 76 of 1971. The said O.P. was allowed and the property was ordered to be sold to the tenant, and the suit was dismissed. Against this

the defendants 1 and 2 in the present suit who were the plaintiffs in O.S. No. 815 of 1971 filed an appeal and the appeal was dismissed. They also

took the matter to the High Court and there also they were not successful. While so the present suit has been filed by Alima Bivi alleging that she is

also one of the owners of the property and in the suit O.S. No. 815 of 1971 she was not a party and therefore the order in O.P. No. 76 of 1971

is not binding on her. She has sought for a relief of declaration that she is also an owner of the property and consequently injunction restraining the

third defendant-tenant in the suit from taking possession of the property in execution of the order passed in O.P. No. 76 of 1971. In the present

suit the said G. Abdul Razaak and G. Musthapa Kamal, plaintiffs in O.S. No. 815 of 1971, have been impleaded as defendants 1 and 2 and the

tenant Abdul Subhan as defendant No. 3 and the mother of the plaintiff has been impleaded as defendant No. 4.

It is common case that the suit property originally belonged to one Ghouse Mohamed, father of the plaintiff Alima Bivi and defendants 1 and 2

and husband of defendant No. 4. On his death in April, 1965, the plaintiff and defendants 1, 2 and 4 become entitled to it. The appellant-tenant

(third defendant) has been a tenant even from the time of Ghouse Mohamed Sahib.

Now, the plaintiff''s case is that she was not aware of the suit O.S. No. 815 of 1971 filed by her two brothers wherein O.P. filed by the tenant

has been allowed permitting him to purchase the suit property, and therefore the said order in the O.P. is not binding on her and hence it cannot be

executed. The two brothers (defendants 1 and 2) remained ex-parte. The fourth defendant filed a written statement supporting the case of the

plaintiff.

The appellant-tenant (third defendant) contested the suit contending that after the death of Ghouse Mohamed his sons viz., defendants 1 and 2

only were collecting rents from him and they were the landlords for all the purposes under the Tamil Nadu City Tenants Protection Act. The

plaintiff knew about the suit and the subsequent proceedings and now she has been set up by defendants 1 and 2 to prevent him from executing the

decree, by filing a frivolous suit.

The Trial Court held that since the plaintiff is also an owner of the property along with defendants 1 and 2, and 4, and since the plaintiff and

fourth defendant were not parties to the said suit O.S. No. 815 of 1971 and O.P. No. 76 of 1971, the order passed in the O.P. cannot be

executed against them. The trial court while rejecting the prayer for injunction held that the decree passed in O.P. No. 76 of 1971 will not affect

the right of the plaintiff in the property. On appeal by the third defendant-tenant the first appellate Court concurred with the findings of the trial

Court and therefore dismissed the appeal. Hence the second appeal by the third defendant-tenant.

Mr. A. Ramanathan, learned Counsel for the appellant-tenant contends that the defendants 1 and 2 were admittedly collecting rent from the

property after the death of Ghouse Mohammed Sahib on behalf of themselves and other co-sharers of the property and therefore Under the

provisions of the Tamil Nadu City Tenants Protection Act they must be held to be landlords in respect of the suit land and the suit filed by them is

quite proper and the plaintiff and the fourth defendant are bound by the decree passed in the O.P. In this connection the learned Counsel reads out

the definition of ''Landlord'' given in Section 2(3) of the Act which reads as follows:

Landlord means any person owning any land and includes every person entitled to collect the rent of the whole or any portion of the land whether

on his own account or on behalf of or for the benefit of any other person, or by virtue of any transfer from the owner or predecessor in title or of

any order of a competent Court or of any provision of law.

This definition does not show or indicate that because one or two owners of the land collect rent on behalf of themselves and others they become

the landlords entitled to file an ejectment suit against the tenant on behalf of themselves as well as others.

Now, u/s 9, when an ejectment suit is filed against a tenant by the landlord he may apply to the Court for a direction to sell the land to him. In this

case defendants 1 and 2 have filed the suit as landlords of the land and the tenant has filed the O.P. u/s 9. The question is whether the sale of the

entire land can be ordered even though only two of the four co-owners of the land have filed the suit.

As said above, it cannot be said from the definition of ''Landlord'' given in Section 2(3) that one or two landlords can file a suit against the tenant

on behalf of themselves as well as the other co-owners. As far as the tenant is concerned he cannot file a petition u/s 9 impleading other co-owners

also, the suit having been filed by only two of the co-owners. Section 9 of course says that the land shall be directed to be sold. So we have to see

what is meant by ''Land'' in Section 9. An Explanation is appended to Section 9 and as per that,

''Land'' means the interests of the landlord in the land and all other interests which he can convey under any power and includes also the full interest

which a trustee can convey under the power possessed by him to convey trust property when necessity exists for the same or the alienation of the

property is for the benefit of the estate or trust.

From this we have to take it that when the defendants 1 and 2 filed the suit for ejectment they did so in respect of their interest only in the land and

not the interest of other co-owners. When the tenant has filed an O.P. u/s 9 that petition would be only in respect of the interest in the land of the

plaintiffs in that suit i.e., defendants 1 and 2 in the present suit. Therefore when the Court has ordered sale of land it has ordered sale of only the

interest in the land of the defendants 1 and 2. Hence the plaintiff''s claim that the third defendant cannot purchase the entire property including her

share is quite legitimate and sustainable. In this view of the matter I find the judgments of the Courts below are correct and there is nothing to

interfere with them. Accordingly the appeal is dismissed. Considering the circumstances there will be no order as to costs.