Whether one of co-owner can file suit for eviction of tenant?

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR

S.B. CIVIL SECOND APPEAL NO.237/2012

Ratan Lal
vs.
Gopal

Date of Judgment

17.01.2014
PRESENT
HON’BLE MR. JUSTICE ARUN BHANSALI
REPORTABLE

This second appeal under Section 100 CPC is directed against judgment and decree dated 25.03.2009 passed by Civil Judge (Senior Division), Nathdwara decreeing the suit filed by the respondent-plaintiff for possession of shop, arrears of rent and mesne profit and appellate judgment and decree dated 27.04.2012 passed by Additional District Judge, Nathdwara, whereby, the appeal preferred by the appellant-defendant was rejected.

The facts in brief may be noticed thus: the plaintiff Gopal son of Fateh Lal Arora filed a suit, inter alia, claiming that the shop in question was on rent with the defendant at Rs.700/- per month; as the said shop was required by him, he had issued notice to the tenant terminating the tenancy w.e.f. 30.04.2004 and asked for possession; in reply to the notice, the defendant denied the ownership of the plaintiff; the plaintiff claimed vacant possession of the shop, outstanding rent of Rs.1,400/- and mesne profit @ Rs.5,000/- per month from 31.05.2004.

A written statement was filed by the defendant-appellant, inter alia, contending that the shop in question was owned by Fateh Lal, who was succeeded by his daughter Manhori Devi, who has also died, who has a son Subhash, Radha Devi and Munna Devi are daughters of Fateh Lal and Gopal is not the sole owner of the shop. As the other legal representatives of Fateh Lal have not been impleaded as party, the suit was not maintainable; the notice issued was illegal and the suit was not maintainable in absence of the other legal representatives. A replication was filed by the plaintiff denying the facts indicated in the written statement.

The trial court framed nine issues and after evidence was led by the parties, it came to the conclusion that it was admitted by the defendant that after death of Sallu Bai, mother of the plaintiff, no one else has been paid the rent and the plaintiff has exhibited Exhibits-A/17 to A/33 for the period 12.05.2002 to 09.03.2004, which proves that he has been receiving the rent of the said premises and, therefore, as the plaintiff was landlord, non-impleadment of any of the other legal representatives of Fateh Lal does not affect the maintainability of the suit.

The notice issued was valid and decreed the suit for possession alongwith mesne profit @ Rs.700/- per month.

On appeal being filed by the appellant-defendant, the first appellate court came to the conclusion that even if definition as indicated in Section 105 of the Transfer of Property Act, 1882 (‘the Act’) is taken into consideration, the plaintiff is a lessor as he has been receiving the month to month rent and, therefore, the other legal representatives are not necessary parties.

The first appellate court also came to the conclusion that the notice under Section 106 of the Act issued by the plaintiff was valid and upheld the judgment and decree passed by the trial court.

It was submitted by learned counsel for the appellant that admittedly the property was owned by Fateh Lal and the suit was filed by Gopal, one of the legal representatives of deceased Fateh Lal only without impleading the other legal representatives as party, who are admittedly co-owners of the tenanted premises and, as such, the suit was not maintainable.

It was further submitted that the notice under Section 106 of the Act was also not valid as statutory time was not allowed and the notice was not properly served.

Reliance was placed on judgment of Gujarat High Court in Nanalal Girdharlal & Anr. v. Gulamnabi Jamalbhai Motorwala & Ors. : AIR 1973 GUJARAT 131 and Sucharita Pradhan & Ors. v. M/s. U.P. Twiga Fibreglass Ltd. & Ors. : AIR 2002 DELHI 1. Per contra, learned counsel for the respondent submitted that the suit by one of the co-owners of the property for ejectment of tenant is maintainable and it is not open for the tenant to raise objection in this regard. It was further submitted that the judgment in the case of Sucharita Pradhan (supra) the Court proceeds on the assumption that the judgment in the case of Nanalal Girdharlal (supra) has not been overruled in any of the decisions of the Hon’ble Supreme Court, wherein, in Narpatchand A. Bhandari v. Shantilal Moolshankar Jani : (1993) 3 SCC 351 the Hon’ble Supreme Court in para 10 of the said judgment opined that the said judgment cannot now be good law in view of the nine Judges Bench decision in V. Dhanpal Chettiar v. Yesodai Ammal : (1979) 4 SCC 214; the notice under Section 106 of the Act is perfectly valid.

I have considered the rival submissions and perused the record of both the courts below.

The suit in the present case has admittedly been filed by Gopal, who is one of the co-owners of the suit premises, which was owned by Fateh Lal Arora and besides him, at the time of filing of the suit, Subhash, Munna Devi and Radha Devi were the co-owners of the said premises. It is also an admitted fact that the appellant-defendant has been paying rent of the suit premises lastly to Gopal – plaintiff only, which was proved by rent receipts (Exhibits-A/17 to A/33 – two sets of exhibits have been similarly marked, the relevant being marked on 20.08.2008). Further, the appellant has also claimed in the written statement that when Gopal refused to accept rent, he has tendered the rent by money order to Gopal, which money order was refused by him, as such, there is no dispute about the relationship of landlord (lessor) and tenant (lessee) between the appellant and the plaintiff.

Further, it is not the case of the appellant that other co-owners are opposed to such eviction. The issue as to whether in absence of other co-owners, the suit filed by a co-owner is maintainable or not has been dealt with by the Hon’ble Supreme Court in the case of Sri Ram Pasricha v. Jagannath & Ors. : (1977) 1 SCR 395, wherein, the Hon’ble Supreme Court came to the conclusion that under the general law, in a suit between the landlord and tenant, the question of title to the leased property is irrelevant and, therefore, it was inconceivable to throw out the suit on account of non-impleading of other co-owners as such, specially in view of the clear acknowledgment and admission of the defendants that plaintiff was their landlord.

The judgment in the case of Sri Ram Pasricha (supra) has been followed by Hon’ble Supreme Court in Dhannalal v. Kalawatibai & Ors. : (2002) 6 SCC 16, wherein, it was inter alia observed by Hon’ble Supreme Court as under:-

“…..that one of the co-owners can alone and in his
own right file a suit for ejectment of tenant and it is
no defence open to tenant of question the
maintainability of the suit on the ground that other
co-owners were not joined as parties to the suit.
When the property forming subject matter of
eviction proceedings is owned by several owners,
every co-owner owns every part and every bit of
the joint property along with others and it cannot
be said that he is only a part owner or a fractional
owner of the property so long as the property has
not been partitioned. He can alone maintain a suit
for eviction of tenant without joining the other co-
owners if such other co-owners do not object.”

The Hon’ble Supreme Court in India

Umbrella Manufacturing Co. & Ors. v. Bhagabandei Agarwalla : (2004) 3 SCC 178 held it to be well settled that one of the co-owners can file a suit for eviction of a tenant in the property generally owned by the co-owners.

The principle was held to be based on doctrine of agency and one co-owner filing a suit for eviction against the tenant was held to be doing so on his own behalf in his own right and as an agent of other co-owners and the consent of other co-owners was assumed as taken unless it was shown that the other co-owners were not agreeable to eject the tenant and the suit was filed inspite of their disagreement. In FGP Ltd. V. Saleh Hooseini Doctor and Anr. : (2009) 10 SCC 223 the Hon’ble Supreme Court held as under:-

“37. It has been urged by the learned counsel for
the appellant that in the suit which has been filed
by the respondents they have not asserted that
they are filing it as co-owners but they have
claimed that they are filing it as
executors/executrix. So they cannot now meet the
challenge of maintainability of the suit on the
ground that it was filed by the respondents as co-
owners. It is not possible to accept the aforesaid
contention in the facts of this case. This Court is of
the opinion that if the status of the respondents as
co-owners of the property transpires clearly from
the admitted facts of the case, they cannot be
denuded of the said status at the instance of some
objections by the tenants. Normally, a tenant’s
right to question the title of a landlord is very
limited in view of the rule of law which is codified in
Section 116 of the Evidence Act.

38. Apart from that it has been held in some
decisions of this Court that a co-owner of a
property is an owner of the property, till the
property is partitioned.

39. In Sri Ram Pasricha v. Jagannath it has been
held that a co-owner is as much an owner of the
entire property as any sole owner. In coming to the
said finding, the learned Judges relied on the
proposition laid down in Salmond on Jurisprudence
(13th Edn.). The relevant principles in Salmond on
Jurisprudence are set out hereinbelow:

“…It is an undivided unity, which is vested
at the same time in more than one
person…. The several ownership of a part
is a different thing from the co- ownership
of the whole. So soon as each of the two
co-owners begins to own a part of the
thing instead of the whole of it, the co-
ownership has been dissolved into sole
ownership by the process known as partition.
Co-ownership involves the undivided integrity of what is owned.”
(emphasis supplied)

40. Relying on the aforesaid jurisprudential principles, this Court in Sri Ram Pasricha held as under: (SCC p.190, para 27)

“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 fractional owner of the
property. The position will change only
when partition takes place.”

41. Since in the instant case, no partition has taken
place, the plaintiffs’ status as co- owners cannot be
disputed by the tenant and it is nobody’s case that
there is a clash of interest between the respondent
and the co-owners.

42. Therefore, the suit is maintainable.

43. Reference in this connection may be made to a
decision of this Court in Mohinder Prasad Jain v.
Manohar Lal Jain. In para 10 of the said Report,
learned Judges referred to a decision of this Court
in India Umbrella Mfg. Co. v. Bhagabandei
Agarwalla which in turn relies on Sri Ram Pasricha.

44. The principles which have been affirmed in
Mohinder Prasad Jain are that one co-owner filing a
suit for eviction against the tenant does so on his
own behalf in his own right and as an agent of the
other co- owners. In this matter, the consent of the
other co-owners is assumed as taken unless it is
shown that the other co-owners were not agreeable
to eject the tenant and the suit was filed in spite of
their disagreement.(See para 10, p. 727 of the
Report). It is nobody’s case here that other co-
owners are objecting to the filing of the suit in
question.”

From the above law laid down by Hon’ble Supreme Court it is well settled that one co-owner can file the suit for eviction. The said principle has been laid down de hors the fact whether the suit was filed under a Rent Legislation or under Transfer of Property Act.

The law laid down by the Gujarat High Court in the case of Nanalal Girdharlal (surpa) has apparently lost its relevance in view of the subsequent judgment of Hon’ble Supreme Court in the case of Sri Ram Pasricha (supra) and V. Dhanpal Chettiar (supra) as noticed by Hon’ble Supreme Court in the case of Narpatchand A. Bhandari (supra).

The submissions about period of notice under Section 106 of the Act and delivery thereof are also without substance in view of provisions of Sub-sections (3) and (4) of Section 106 of the Act as admittedly the suit was filed after two months of service of notice and the same was delivered by registered post at the admitted address.

Consequently, there is no substance in the appeal and the same is, therefore, dismissed.

The stay application is also dismissed. No costs.

(ARUN BHANSALI), J.
A.K. Chouhan/

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