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RAJENDRA PRASAD & OTHERS versus D.J.& OTHERS

High Court of Judicature at Allahabad

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Rajendra Prasad & Others v. D.J.& Others - WRIT - A No. 11498 of 1992 [2006] RD-AH 12806 (2 August 2006)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No. 25

Civil Misc. Writ Petition No. 11498   of 1992

Rajendra Prasad and others

Versus

District Judge and others

Hon.Sanjay Misra.J.

Heard Sri M.K.Nigam learned counsel for the petitioners and Sri H.N.Singh learned counsel appearing on behalf of contesting respondent no.3.

By means of this writ petition, the petitioners seek to challenge the judgment and order dated 4th December 1991  passed by the District Judge Allahabad in Revision No. 145 of 1991. By the aforesaid judgment, the revisional court in exercise of its power under Section 25 of the Provincial Small Causes Courts Act has proceeded to allow the revision of the respondent no.3 and set aside the judgment and decree of the court below and also dismissed the suit of the petitioners with costs.

Learned counsel for the petitioners contends that the sole ground upon which the revision of the respondent no.3 has been allowed is that the suit for ejectment should have been filed by all the landlords co-owners  and since it has been filed by only one co-owner-landlord , therefore, he has no right to file the suit. Learned counsel for the petitioners contends that the aforesaid view expressed by the revisional court while allowing the revision of the respondent no. 3 is patently illegal in view of the decision pronounced in the case of Indian Umbrella Manufacturing Company (M/s) and others Vs. Bhagabandei Agarwala (dead) by Lrs. Smt. Savitri Agarwala and others 2004  (55) ALR Page 98. While relying upon the aforesaid decision, learned counsel for the petitioners has stated that one co-owner can file a suit for eviction against a tenant on his behalf in his own right as agent of other co-owners and consent of the other co-owners is assumed to have been taken unless it is shown that the other co-owners were not agreeable for ejectment of the tenant. Learned counsel for the petitioners submitted that the assumption that there was consent of the co-owners is quite apparent from the record of the case in as much as neither it has been pleaded by the tenant nor it is their case that the consent of the co-owners cannot be assumed to have been taken or that the other co-owners were not agreeable to the eviction of the tenant. Consequently  he has submitted that the view expressed by the revisional court is patently illegal and a co-owner can file a suit for eviction of the tenant.

Learned counsel appearing on behalf  of the respondent no.3, has contended that there was serious dispute with respect to ownership of the property in question inter se the petitioner and his family  in as much as upon the demise of the original owner namely Smt. Chameli ownership of the premises devolved upon her two sons namely Bachchan and Bhola Nath. The petitioner herein are alleged to be sons of Bhola Nath. His contention is that the property  in question was inherited by Bachchan and Bhola Nath and therefore, the petitioners have no right to maintain the suit. It is further stated that the will set up by the petitioners did not entitle them to ownership of the property to the exclusion of the other heirs  including the children of Bachchan. Consequently his contention is that the suit was not maintainable at the instance of the petitioners alone. He has also contended that the petitioners are not landlord/owner of the premises in question by virtue of the will of 1976 set up by them.

From the record it appears that a Suit No. 95 of 1986 was filed by  Smt. Radha Devi wife of Bachchan for partition and separate possession of various properties which the parties alleged to have inherited after the death of Smt. Chameli Devi. A compromise was entered into between the parties and the suit was finally   decided in terms of the compromise on 5.4.1989. The compromise decree has been filed as Annexure-7 to the writ petition. A perusal of the said compromise decree indicates that the  property in question belonged to the sons of Radha Devi as also the sons of Bhola Nath.  It is not disputed between the parties before this Court that the compromise decree was passed in Suit No.95 of 1986 on 5.4.1989. The trial court while entering into the question of ownership of the property took into consideration the aforesaid decree and recorded its finding upon being prima facie satisfied that the  property in question being House No.471 Mutthiganj (New No. 1008 Mutthiganj) Allahabad was in the co-ownership of the petitioners as also the sons of Smt. Radha Devi. Upon recording the aforesaid finding, the trial court had decreed the suit with respect to the arrears  of rent and on the ground of subletting. The trial court has not adjudicated the title of the parties itself.

The revision of the tenant has been allowed by  the impugned judgment solely on the ground that one co-owner could not bring a suit against the tenant and therefore, it was not maintainable. This Court is of the view that the reason for  which the revisional court has allowed the revision is clearly against the settled position of law. A suit for eviction of  tenant can be brought by  one of the co-owner. A co-owner is as much an owner of the property  as any sole owner of a property is. The Hon'ble Supreme Court has held in the case of Sri Ram Pasricha Vs. Jagannath and others reported in (1976) 4, S.C.C. 184 as quoted hereunder :-

"Para 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. 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 as the acknowledged landlord of the defendants."

The aforesaid case related to the provisions of the West Bengal  Premises Tenancy Act  1956 wherein section 13 (1) (f) contained the words '' if he is the owner' with  respect to requirement of the premises by the landlord for his own occupation. In the case of M/s India Umbrella Manufacturing Co. (Supra) the Hon'ble Supreme Court while considering the situation where both the co-owners filed the suit and midway one of the co-owners withdrew his consent, it was held that one of the co-owners can file a suit for eviction of a tenant in the property generally owned by the co-owners. Pragraph no.6 of the judgment is quoted hereunder :

"Having heard the learned counsel for the parties we are satisfied that the appeals are liable to be dismissed. It is 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. (See Sri Ram Pasricha V. Jagannath and others, Dhannalal vs. Kalawatibai and others). This principal is based on the doctrine of agency. One co-owners 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 . The consent of other co-owners is assumed as taken unless it is shown that the other co-owners were not agreeable to eject the tenant and suit was filed in spite  of their disagreement. In the present case, the suit was filed by both the co-owners. One of the co-owners cannot withdraw his consent midway the suit so as to prejudice the other co-owners. The suit once filed, the rights of the parties stand crystallized on the date of the suit and the entitlement of the co-owners to seek ejectment must be adjudged by reference to the date of institution of the suit; the only exception being when by virtue of a subsequent even the entitlement of the body of co-owners to eject the tenant comes to an end by act of parties or by operation of law."

From the above it is clear that a co-owner can bring a suit for eviction  of the tenant unless it was shown that the other co-owners were not agreeable to the ejectment of the tenant.

U.P. Act No. 13 of 1972 has not given the definition  of owner but landlord has been defined in Section 3 (j) as quoted here under :-

"landlord' in relation to a building means a person to whom its rent is or if the building , were let would be , payable, and includes , except in clause (g) ,the agent or attorney , of such person.

Rule 15 of the U.P.Urban Building (Regulation o f Letting, Rent and Eviction ) Rules 1972 requires that an application for release of the premises should be signed by all the landlords. This question has since been settled by a decision of a Full Bench of this Court in the case of Gopal Dass and another Vs. Ist A.D.J. reported in (198) (1) ARC 281 wherein this Court held in paragraph 17 as quoted hereunder :-

"So far as the applicability of this Rule to the present case is concerned, there is no problem. Murlidhar Shah who has brought the action for eviction of the premises in question is undoubtedly the landlord. He has signed the application. He alone is competent to sign the application. However, we may point out that the requirement of Rule 15 (2)  that an application for release of premises owned by co-owners should be signed by all co-owners would be invalid. One co-owner is competent to maintain an action for eviction of the tenant of the entire premises, since he can be considered as a landlord within the meaning of Section 3 (j) of the Act. One Co-owner alone would be competent to sign such an application.

For the reasons as aforesaid, the impugned judgment and order of the revisional court is set aside. The matter is remanded back to the court below to decide the revision in accordance with law. Since the matter is pertaining to the year 1989, the revisional court will decide it in accordance with law after giving opportunity to the both parties within six months from the  date a certified copy of this order is presented before it.                                                                                                                                                      

It has been contended by the learned counsel for the parties that there has been subsequent development with respect to purchase of share of the property  in question in favour of Smt. Geeta Devi w/o Moti Chand. Without expressing any opinion  on the merits of the contention the plea may  be raised by the parties and the revisional court may address the same in accordance with law.

With the directions aforesaid, this writ petition is finally disposed of. No order is passed as to costs.

Dt. 2.8.2006

Naim


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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