JUDGMENT
Usha Mehra, J.
1. Respondent/tenant is seeking review of the order of this Court dated 13th February, 1997 primarily on the ground that while disposing the appeal this Court did not consider the effect of the partition of the property in question. In the suit for partition filed by the respondent and other legal heirs the Civil Court granted a preliminary decree of partition. In view of the preliminary decree this respondent alone could not terminate the tenancy nor could file the petition for ejectment. She being the co-owner and the rights having been determined in the preliminary decree other owner had to be joined in the petition. Having failed to do so eviction petition was not maintainable.
2. I have heard Mr. C.K. Mahajan for the applicant/respondent and Mr. R.K. Saini and Mr. Prag Chawla for respondent/appellant.
3. In order to appreciate the contentions now raised, I would like to recapitulate the relevant facts of this case. Applicant/ respondent was inducted as tenant by the late husband of the appellant. Since the applicant did not pay the rent regularly and committed default in payment of rent the appellant Smt. Bimla Wati Seth terminated his tenancy and thereaf-ter filed ejectment proceedings under Section 14(1)(a) of the Delhi Rent Control Act (in short ‘the Act’). The learned Additional Rent Controller (in short the ARC), Delhi, on the basis of evidence available on record
held that Smt. Bimla Wati was the landlady of the premises in question. That the rent had always been paid to her. The Managing Director of the applicant/tenant appearing in the witness box admitted that rent used to be paid to Smt. Bimla Wati landlady of the premises in question. That the cheques used to be drawn in the name of Smt. Bimla Wati. On the basis of this admission coupled with the fact that rent by cheques used to be paid to Smt. Bimla Wati concluded that since after the death of her husband she was receiving the rent from the tenant hence under Clause (e) of Section 2 of the Act she was the landlady of the premises. Moreover for an ejectment petition under Section 14(1)(a) of the Act the petitioner need not be an owner of the premises. Such a petition could be filed by landlady alone. Hence petition filed by Smt. Bimla Wati was maintainable. The ARC accordingly allowed her petition. That being first default the order was treated to be passed under Section 15(A) of the Act. However, on appeal the RentControl Tribunal (in short the Tribunal) reversed the finding of the ARC on the ground that though the rent was paid by way of cheques drawn in the name of Smt. Bimla Wati even then petition filed by her alone was not maintainable because some of the receipts and correspondence were issued by
her son Shiv Kumar. The Tribunal accordingly drew inference that Shiv Kumar being legal heir and had been issuing rent receipts hence he was co-land-lord and co-owner with Smt. Bimla Wati. Moreover, Smt. Bimla Wati being General Power of Attorney of Shiv Kumar was acting as landlady on his behalf also, therefore, she alone was not the landlady of the premises in question. The Tribunal after drawing the presumption held that Smt. Bimla Wati being the widow inherited the property alongwith her son Shiv Kumar. Since her son was minor she being guardian was receiving the rent on his behalf as well. Hence Shiv Kumar and Bimla Wati were co-landlord and coowner of the property in question. Being co-landlady she alone could not file eviction petition. Accordingly the Tribunal reversed the finding of the learned ARC. It is in this backdrop that Smt. Bimla Wati filed this Second Appeal.
4. At the outset it must be mentioned that for an ejectment petition on the ground of non-payment of rent under Section 14(1)(a) of the Act, the petitioner need not be the owner of the premises. Such a petition can be filed by a landlord alone. Who is a landlord has been defined under Section 2(e) of the Act, to mean a person who, for the time being is receiving the rent of any premises. The rent as admitted by the Managing Director of the applicant had always been paid by cheques drawn in the name of Smt. Bimla Wati respondent/appellant. The tenant through its Managing Director further admitted that after the death of Smt. Bimla Wati’s husband, Smt. Bimla Wati had been receiving the rent.
5. The point raised in this review petition is whether after the grant of preliminary decree in the suit for partition filed by the legal heir of Devi Chand Seth i.e husband of Smt. Bimla Wati could she alone terminate
the tenancy and file eviction petition.
6. Contention of Mr. C.K. Mahajan Counsel for respondent/applicant is that preliminary decree has to be treated as a final decision which determeined the shares and rights of legal heirs in the property in question. Hence Smt. Bimla Wati without impleading other co-owners/co-landlords could not by herself file the eviction petition. To support his arguments that preliminary decree of partition is a final decision, Mr. Mahajan placed reliance on the decision of Supreme Court in the case of Venkata Reddy and Others Vs. Pethi Reddy, AIR 1963 Supreme Court 1992. There cannot be any
quarrel with the proposition of law laid down by the Apex Court in this case. But I am afraid the ratio of Supreme Court decision is of no help to Mr. Mahajan. The facts of that case are quite distinguishable from the facts of this case. In Pethi Reddy’s case (supra) the Apex Court was concerned with the meaning to be given to the expression “final decision” occurring in the first proviso to Section 28-A of the Provincial Insolvency Act, 1920. In that case Venkata Reddy & Others filed suit for the partition of the joint family property claiming 2/3rd share in the property purchased by Pethi Reddy and sold by Official Receiver. Preliminary decree for partition was passed by the Trial Court. The same was affirmed in appeal by the District Judge and eventually by the High Court in Second Appeal. Even
final decree was granted ex-parte. Ex-parte decree was, however, set aside. In was in context of the proviso one to Section 28-A, the Apex Court was considering whether preliminary decree which was upheld upto the High Court should be treated as a final decision. But that is not the case in hand. Even in Pethi Reddy’s case (Supra) the Apex Court in para 6 observed that “No doubt in suits which contemplate the making of two decrees a prelimi-nary decree and a final decree, the decree which would be executable would be the final decree. The legislature in its wisdom thought that suits of certain types should be decided in stages and though the suit in such cases can be regarded as fully and completely decided only after a final decree is made the decision of the Court arrived at the earlier stage also has a finality attached to it”. This observation of the Apex Court are in the
context if the preliminary decree determines the right. In that case finality has to be attached.
7. In the case in hand, the suit for partition was filed by the daughter of late Shri Devi Chand Seth i.e. the late husband of Smt. Bimla Wati Seth. Plaintiff claimed 1/7th share in the estate of late Shri Devi Chand Seth. His estate consisted of various immovable properties including the property in question. The Sub-Judge First Class, Delhi, in Suit No. 368/71 passed a preliminary decree holding that the plaintiff was 1/7th share holder of the properties of the deceased as mentioned in the plaint. Thus according to Mr. R.K. Saini the preliminary decree only determined the shares of the
legal heirs of the deceased in his total estate and not in the property in question only. The plaintiff in the partition suit was held to have 1/7th share in the undivided property of the deceased. What that 1/7th share would be has yet not been identified nor the estate of the deceased has been divided by metes and bounds. What would be the 1/7th share and in which property has not yet crystalised nor identified, therefore, till that is done all legal heirs of deceased Shri Devi Chand Seth are co-owners in the properties left by him. Smt. Bimla Wati being co-owner did not automatically became co-landlady. As per Section 2(e) of the Act landlord is the one who receives the rent. Smt. Bimla Wati had been receiving the rent and this fact had been admitted by both the Courts below as well as by the tenant through its Managing Director. Therefore, Smt. Bimla Wati alone was competent to file eviction petition under Section 14(1)(a) of the Act. To this argument of the respondent/appellant Mr. Mahajan had no answer. Mr. Mahajan could not contradict the fact that the rent was paid to Smt. Bimla Wati Seth and it was she who had been receiving the same. In view of this admission on the part of the tenant that the rent was received by Smt. Bimla Wati Seth, the learned ARC rightly declared her to be the landlady of the premises in question. The Tribunal fell in error in comparing the definition of “landlord” with co-owner. Since she alone was receiving the rent hence landlord simply because some receipts were issued by her son would not make her co-landlady. Being the landlady of the premises she was within her right to file eviction petition under Section 14(1)(a) of the Act. Moreover, as already pointed out above the shares have only been indicated by the preliminary decree, those shares have yet to be identified, hence the preliminary decree in the present form is not executable. Final decree will determine as to who would get his share in which proper-ty. On the facts of this case it cannot be said that legal heirs of Devi Chand Seth have acquired any specified interest in any particular property of the deceased. They have 1/7th share in the undivided property. They are still co-owners. It was in this background that the judgment of this Court in the case of Holkar Mal Vs. Munshi Lal, 1976 RCR 540, relied by the present applicant/tenant was distinguished. Decisions of the Apex Court in the cases of Smt. Kanta Goel Vs. B.P. Pathak & Ors., 1977 SC 1599], Shri Ram Pasricha Vs. Jagannath & Ors., 1976 SC 2335, and S.K. Puri Vs. Sarla Chawla, 1995 (1) Apex Decisions (Delhi) 485, squarely apply to the facts of this case.
8. For the reasons stated above I find no merit in the review petition. the same is accordingly dismissed.