Amarnath Gupta vs Smt. Usha Sharma
2023 Latest Caselaw 14142 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

                                                   A.F.R.
 
                                                 Reserved On 22.03.2023
 
Delivered On 05.05.2023   
 

 
Case :- S.C.C. REVISION No. - 23 of 2023
 

 
Revisionist :- Amarnath Gupta
 
Opposite Party :- Smt. Usha Sharma
 
Counsel for Revisionist :- Rohan Gupta
 
Counsel for Opposite Party :- Prakhar Tandon
 

 
Hon'ble Neeraj Tiwari,J.

1. Heard Sri Rohan Gupta, learned counsel for the revisionist and Sri Prakhar Tondon, learned counsel for the opposite party.

Present revision has been filed with the following prayers:

"It is, therefore, Most respectfully prayed that this Hon'ble Court may graciously be pleased to allow the aforesaid revision and set aside the impugned order dated 07.02.2023 and the consequential decree dated 14.02.2023, passed by the Additional District Judge, Court No. 08, Kanpur Nagar in O.S. No. 73 of 2019; failing which the Revisionist shall suffer irreparable loss and injury."

It is also prayed that the Hon'ble Court may kindly be pleased to stay the effect and operation of the impugned order dated 07.02.2023 and the consequential decree dated 14.02.2023, passed by the Additional District Judge, Court No. 08, Kanpur Nagar in O.S. No. 73 of 2019."

2. Since, only legal question is involved in this matter, therefore, with the consent of parties without inviting for affidavits, the matter is being decided at the admission stage itself.

3. Learned counsel for the revisionist submitted that revisionist-defendant was a tenant of Sri Kailash Nath Agarwal and after the death of Sri Kailash Nath Agarwal, his property was inherited by his two sons, viz, Sri Pankaj Agarwal and Sri Rakesh Kumar Agarwal. Thereafter, the revisionist-defendant became tenant of Sri Pankaj Agarwal. Pankaj Agarwal has sold out half of the portion of the building, which was in his share to Smt. Usha Sharma, i.e. plaintiff-opposite party, who is not a family member of Sri Pankaj Agarwal.

4. He next submitted that after execution of sale deed dated 29.01.2019, plaintiff-opposite party has filed S.C.C. Suit for eviction of house in question after giving notice to revisionist-defendant under Section 106 of Transfer of Property Act, 1882(hereinafter, referred to as, 'Act of 1882').

5. He next submitted that after execution of sale deed dated 29.01.2019, partition of property in question has not taken place and without partition, it cannot be ascertained as to which part of the property, opposite party-co-owner is having right to enter upon, in case of being ranked outsider and not a family member. Plaintiff-opposite party is having no right to enter upon into the property in dispute without partition, therefore, for filing the suit for eviction, the first action required on the part of plaintiff-opposite party is to file a partition suit and obtain possession of property in question and then file a suit for eviction.

6. He next submitted that plaintiff- opposite party is a co-owner, but an outsider, therefore, she cannot file suit for eviction without consent of another co-owner, i.e. Rakesh Kumar Agarwal, who is co-owner and also in occupation of half portion of the property. He also submitted that without obtaining possession over the purchased part of the property, she cannot file suit for eviction and in the present case, undisputedly, till date, no partition has taken place in accordance with sale deed executed on 29.01.2019. In the sale deed, consent of co-owner, i.e. Rakesh Kumar Agarwal is not recorded for filing of suit for eviction and nothing is mentioned about the tenancy.

7. In support of his contention, Sri Rohan Gupta, learned counsel for the revisionist-defendant has placed reliance upon judgment of High Court of Bombay in the matter of Abdul Hamid Vs. Bhuwaneshwar Prasad: AIR 1950 Nagpur 18, judgment of High Court of Madhya Padesh in B.P. Pathak, Vs. Dr. Ryazuddin: AIR 1976 Madhya Pradesh 55, followed by the Apex Court in the case of Nalakath Sainuddin Vs. Koorikadan Sulaiman: (2002) 6 SCC 1, judgment of Apex court in the matter of Kochkunju Nair Vs. Koshy Alexander and Others: (1999) 3 SCC 482 and Ramdas Vs. Sitabai And Others: (2009) Supreme Court Cases 444.

8. He lastly reiterated that, once it is undisputed that plaintiff-opposite party-co-owner is not a family member, no consent of another co-owner for filing the suit for eviction, no explanation about the tenancy, no partition took place, therefore, no suit for eviction may be filed.

9. Per contra, Sri Prakhar Tondon, learned counsel for the opposite party has opposed the submission made by learned counsel for the revisionist and submitted that there is no dispute on the point that plaintiff-opposite party is a co-owner of the house in question. He also submitted that notice dated 12.07.2019 under Section 106 of the Act of 1988 has been served upon the revisionist-defendant with specific averment of ownership, which was not denied in its reply dated 16.07.2019 by revisionist-defendant.

10. He also submitted that even in the written submission, co-ownership has been very well accepted. Therefore, once the notice is sufficient, landlord-tenant relationship is accepted, suit is very well maintainable on behalf of co-owner.

11. In support of his contention, learned counsel for the opposite party placed reliance upon judgments of this Court in Civil Revision No. 500 of 2012 (Khalil Ahmad Vs. Anis Ahmad), Writ A No. 5091 of 2013(Nizamuddin Vs. Smt. Bushara Khatoon and Others), Civil Revision No. 55 of 2013(Subhash Chandra huf Thru karta And Anr. vs. Ajay Gupta) and S.C.C. Revision No. 544 of 2014 (U.P. State Handloom Corporation Ltd. And Anr. Vs. Smt. Rashmi Arora).

12. He next submitted that, so far as contention of learned counsel for the revisionist-defendant that co-owner, being the outsider cannot file suit for eviction is concerned, is having no substance as not based upon any Rule or law laid down by the Court.

13. He firmly submitted that co-owner has full right to file suit for eviction under the Act of 1882 and even after filing of suit, revisionist-defendant has never taken this objection in written statement and further co-owner, i.e. Sri Rakesh Kumar Agarwal has also never filed any impleadment opposing the suit for eviction filed by the plaintiff-opposite party. Once, revisionist-defendant has not taken this objection in his written statement and also not produced any evidence showing dissent of co-owner (Sri Rakesh Kumar Agarwal) from the plaintiff-respondent, this plea cannot be accepted.

14. In support of his contention, he placed reliance upon the judgment of Apex Court in Tmt. Kasthuri Radhakrishnan & Ors. Vs. M. Chinniyan & Anr.: 2016 0 Supreme(SC) 87 and submitted that in this case, Apex Court is of the firm view that the co-owner is having full right to file suit for eviction. Therefore, there is no illegality in the order impugned and revision is liable to be dismissed.

15. He also pointed out that in the sale deed dated 29.01.2019, it is clearly mentioned that lessor has given full right of mutation to plaintiff-opposite party in present as well as in future, therefore it includes right to file suit for eviction also. In light of that, the contention of learned counsel for the revisionist that in sale deed, nothing has been mentioned about the consent and tenancy, cannot be accepted.

16. I have considered rival submissions made by learned counsel for the parties and perused the record as well as judgments relied upon by the counsel for the parties.

17. Undisputed facts of case is that earlier revisionist-defendant was a tenant of Sri Kailash Nath Agarwal and after his death, his property was inherited by his two sons, viz, Sri Pankaj Agarwal and Sri Rakesh Kumar Agarwal. Pankaj Agarwal has sold out half of the property, which was in his share, to Smt. Usha Sharma, plaintiff-opposite party vide sale deed dated 29.01.2019. Smt. Usha Sharma, plaintiff-opposite party has, thereafter, filed S.C.C. Suit No. 73 of 2019 after giving notice to revisionist-defendant under Section 106 of Act of 1882. Sri Rakesh Kumar Agarwal, another son of Lt. Sri Kailash Nath Agarwal and co-owner of the property in dispute has never raised any objection for filing of suit for eviction by plaintiff-opposite party, who became a co-owner of the property in dispute after purchasing the share of Sri Pankaj Agarwal.

18. The main issue before the Court is to decide as to whether in case the plaintiff-opposite party is not a family member, she can file a suit for eviction without consent of another co-owner or not.

19. The first judgment relied upon by the learned counsel for the revisionist is Abdul Hamid(Supra), which says that in case of joint hindu family, a notice is sufficient by the Manager, but here the argument of learned counsel for the revisionist is that plaintiff-opposite party is not a family member, therefore she has no right to file a suit for eviction. Relevant paragraph of the said judgment is quoted hereinbelow:

"5. In a recent decision in - 'Vagha v. Manilal', AIR 1935 Bom. 262, Broomfiled J. held that where the landlord's rights belong jointly to several persons, a suit to eject a tenant can only be brought by all the co-owners suing jointly as plaintiffs. In - 'Krishna Bhima v. Laxmibai', AIR 1938 Bom. 316 the question which arose for decision was whether a notice given by a manager of a joint Hindu family was sufficient to terminate the tenancy and there, while the decision in - 'Blaji Bhikaji v. Gopal', 3 Bom. 23 was relied on, it was said that such a notice was sufficient to terminate the tenancy. This case is different from the present because here it has not been alleged and shown that the notice given by the plaintiff was on behalf of himself and the heirs of Ghulam hussain. In the circumstances, I hold that the suit was rightly dismissed."

20. This judgment is not applicable in the case of the revisionist-defendant for the very simple reason that the issue before the Court was different in this case. The issue was as to whether a manager of joint hindu family can send a notice to terminate tenancy or not and here the case is as to whether a co-owner not being a family member can file a suit for eviction or not. Therefore, this judgment is of no use in the present controversy.

21. The Second judgment relied upon by the learned counsel for the revisionist is B.P. Pathak(Supra), a judgment of High Court of Madhya Pradesh, which has also been affirmed by the Apex court in the matter of Nalakath Sainuddin(Supra). Relevant paragraphs of the said judgment are quoted hereinbelow:

"23. In B.P. Pathak Vs. Dr. Riyazuddin & Ors., AIR 1976 MP 55, a Division Bench of the High Court of Madhya Pradesh consisting of Chief Justice P.K. Tare and Justice Shiv Dayal (later, Chief Justice), took the view on an illuminating survey of judicial opinion that a transferee of a part of leased property acquires "all the rights" of the lessor in respect of that part as if it alone had comprised the lease and a new relationship is created between the transferee and the lessee. The section creates a statutory attornment substituting, but retaining the same effect of, the contractual attornment. Title of the assignee is complete on execution of the deed of assignment and is not postponed till the notice of the assignment. The Division Bench repelled the submission that since the lessor could not have terminated the tenancy of a part of the demised premises by a notice to quit, he cannot transfer the premises in part and confer such a right on the transferee. The Division Bench held that the right of ejectment is inherent in ownership. Therefore, by virtue of Section 109 of T.P. Act such transferee is entitled to evict the tenant from the part transferred to him not only when the lease had been determined before the transfer but also if it is determined after the transfer in any of the circumstances mentioned in Section 111. Thus he can terminate by a quit notice the lease in respect of the property transferred to him.

24. The Division Bench decision came up for consideration by a Full Bench of the same High Court in Sardarilal Vs. Narayanlal, AIR 1980 MP 8. Chief Justice G.P. Singh, speaking for the Full Bench, approved the statement of law in B.P. Pathak's case and held that Section 109 of T.P. Act confers a right on the owner to effect a severance of a lease by his unilateral act and tenancy over a part of the property leased can be determined by the transferee."

22. From the perusal of the abovesaid judgment, it is apparently clear that at no point of time, right of co-owner has been questioned, so far as filing of suit for eviction is concerned rather the Court has held that right of ejectment is inherent in the ownership. Therefore, this judgment does not come in the rescue of revisionist-defendant, but favours the opposite party-plaintiff.

23. The third judgment relied upon by the learned counsel for revisionist-defendant is Kochkunju Nair(Supra). Relevant paragraph of the said judgment is quoted hereinbelow:

"9. Ownership imports three essential rights, namely, right to possession, right to enjoy and right to dispose. If an owner is wrongly deprived of possession of his property he has a right to be put in possession thereof. All the three essentials are satisfied in the case of co-owner of a land. All coowners have equal rights and co-ordinate interest in the property, though their shares may be either fixed or indeterminate. Every co-owner has a right to enjoyment and possession equal to that of the other co-owner or co-owners. Each co-owner has, in theory interest in every infinitesimal portion of the subject matter and each has the right, irrespective of the quantity of his interest, to be in possession of every part and parcel of the property, jointly with others. (vide Mitras Co-ownership and Partition, Seventh Edn.)"

24. From the perusal of above said paragraph of the judgment, it is clear that the above case deals with the essential rights of ownership and it has been held that other co-owner has a right to enjoyment of possession equal to that of other co-owner/co-owners. Here, the dispute is not between two co-owners, but between an undisputed co-owner and a tenant. Argument of learned counsel for the revisionist-defendant, that co-owner being an outsider cannot file a suit for eviction, is not getting any support from the above judgment rather it is helping the plaintiff-opposite party by holding that each co-owner has equal right to enjoyment of possession.

25. The fourth judgment relied upon by the learned counsel for the revisionist-defendant is Ramdas(Supra), which is of no use in the present case as it may occupy the filed in case there is dispute between two co-owners, but here is a dispute is between an undisputed co-owner and a tenant.

26. Learned counsel for the opposite party-plaintiff has placed reliance on the judgment of U.P. State Handloom Corporation Ltd(Supra). Relevant paragraph of the said judgment is quoted hereinbelow:

"In the case of Modh Haneef vs. Sunil Tuli AIR 2009 ALL (NOC) 2180, it has been held that where the relationship of landlord and tenant stand proved and the tenancy is determined under section 106 of the Transfer of Property Act, nothing more is required for decreeing the suit for eviction in respect of building which is not covered by the provisions of U.P. Act No. 13 of 1972 when the notice of determination of tenancy is valid and is duly served."

27. From the perusal of the above said judgment, it clearly transpires that that once landlord-tenant relationship stands proved and tenancy is determined under Section 106 of the Act of 1882, nothing more is required. In the present case, landlord-tenant relationship is not disputed neither service of notice is insufficient.

28. The same ratio of law was followed by this Court in Nizamuddin(Supra), Khalil Ahmad(Supra) and Subhash Chandra(Supra).

29. The another issue, which was argued by the learned counsel for the revisionist-defendant is that a co-owner being an outsider has no right to file a suit for eviction without the consent of other co-owner.

30. This matter was also for consideration before the Apex Court in Civil Appeal No. 1263 of 2006: Mohinder Prasad Jain Vs. Manohar Lal Jain. Relevant paragraph of the said judgment is quoted hereinbelow:

"7. 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 [(1976) 4 SCC 184] and Dhannalal v. Kalawatibai [(2002) 6 SCC 16], SCC para 25.) This principle is based on the doctrine of agency. 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. 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 the 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-owner. The suit once filed, the rights of the parties stand crystallised on the date of the suit and the entitlement of the coowners 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 event 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"

"8. A suit filed by a co-owner, thus, is maintainable in law. It is not necessary for the coowner to show before initiating the eviction proceeding before the Rent Controller that he had taken option or consent of the other co-owners. However, in the event, a co-owner objects thereto, the same may be a relevant fact. In the instant case, nothing has been brought on record to show that the co-owners of the respondent had objected to eviction proceedings initiated by the respondent herein. The submission of the learned counsel for the appellant to the effect that before initiating the proceedings, the appellant was required to show that he had experience in running the business in Ayurvedic medicine, has to be stated to be rejected. There is no law which provides for such a pre-condition. It may be so where a licence is required for running a business, a statute may prescribe certain qualifications or pre-conditions without fulfilment whereof the landlord may not be able to start a business, but for running a wholesale business in Ayurvedic medicine, no qualification is prescribed. Experience in the business is not a pre-condition under any statute. Even no experience therefor may be necessary. If the respondent has proved his bona fide requirement to evict the appellant herein for his own purpose, this Court may not, unless an appropriate case is made out, disturb the finding of fact arrived at by the Appellate Authority and affirmed by the High Court."

31. From the perusal of the said judgment, it is apparently clear that in this matter, the Court has taken a firm view that a co-owner has full right to file suit for eviction in case not objected by other co-owner.

32. This Court has again considered the same issue in the matter of Rajendra Prasad and others Vs. District Judge, Allahabad and others: 64 ALR 879 (ALL). Relevant paragraphs of the said judgment are quoted hereinbelow:

"6. 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."

7. 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."

8. 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.

9. 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."

10. 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.""

33. Considering various judgments, this Court is of the same view that a co-owner has full right to file suit for eviction, in case objection has not raised by other co-owner.

34. This issue was again before the Apex Court in the matter of FGP Limited Vs. Saleh Hooseini Doctor and Another: 2009 SCC Online SC 1643. Relevant paragraphs of the said judgment are quoted hereinbelow:

"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 coowners 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 coowners. 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 rule of law which is codified in Section 116 of the Indian Evidence Act.

44. The principles which have been affirmed in Mohinder Prasad Jain (supra) 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 coowners. In this matter, 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 the suit was filed in spite of their disagreement.(See para 10 page 727 of the report). It is nobody's case here that other co-owners are objecting to the filing of the suit in question."

35. In this case, the Apex Court is of the same view that a co-owner has full right for filing a suit for eviction unless objected for doing so by the other co-owner.

36. The same issue was also subject matter before this Court in Sheel Chand Jain Vs. Arun Kumar Tadiya and Others: (2014) 103 ALR 303. Relevant paragraphs of the said judgment are quoted herein below:

"9. However, one aspect left open for consideration, was a situation where some of the co-owners want to continue the tenant contrary to relief claimed by one co-owner, instituting proceeding.

10. Both the above decisions have been considered and followed in Pal Singh Vs. Sunder Singh and others, AIR 1989 SC 758. The Court, however, explained the situation and said other co-owner when did not object to eviction, one co-owner can maintain an action for eviction, even in absence of other co-owners. This is evident from para 10 of the judgment where the Court said:

"This in our opinion falls within the ratio of Kama Goel v. B.P. Pathak (supra) where this Court clearly held that when the other co-owner did not object to the eviction one co-owner could maintain an action for eviction even in the absence of other co-owner. Here also Smt. Sham Kaur and her heirs did not object to the claim for eviction made by the respondents herein. In that view of the matter and in the circumstances of this case, we are of the opinion that the ratio of the said case will apply and this suit will be maintainable even in the absence of all the owners to the eviction proceedings."

11. The dictum in Sri Ram Pasricha (supra) was followed in Subhendu Prosad Roy Choudhury and others Vs. Kamala Bala Roy Choudhury and others, AIR 1978 SC 835 in the context of quit notice given by one co-owner (landlord) to tenant and the Court said:

"Even assuming that notice was not given on behalf of one of the co-owner landlords, the decision of this Court is Sri Ram Pasricha v. Jagannath and Ors. Would show that yet the notice was good and valid."

12. A Division Bench of this Court followed the above dictum in Rang Nath Vs. State of U.P., 1984 ARC 642 and the correctness of aforesaid decision was considered by Full Bench in Gopal Das and another Vs. Ist Additional District Judge, Varanasi and others, AIR 1987 All 261. The Full Bench approved dictum laid down in Rang Nath (supra) by observing in para 11 as under:

"11. In view of these decisions, there can, therefore, be little doubt as to the maintainability of the action for eviction brought by one co-owner without impleading the other co-owners. The view taken in Devi Charan's case 1980 UPLT NOC 143 cannot be said to have laid down the correct law and it is overruled. The view taken in Ranga Nath's case (1984 All LJ 455 is correct and we reiterate the same."

13. It is also worthy to notice that Rule 15(2) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972 (hereinafter referred to as the "Rules, 1972") provids, if there are more than one landlord, the application shall be signed by all the landlords. Construing the aforesaid provision in the context of co-owners, the Full Bench in para 16 of the judgment said, if this Rule is to be pressed in the case of co-owners, it shall be invalid since even one co-owner is competent to sign application and filed it. The relevant part of para 16 reads as under:

11. "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 of eviction of the tenant of the entire premises, since he can be considered as a landlord within the meaning of Section 3(i) of the Act. One co-owner alone would be competent to sign such an application."

14. In other words when one comes to seek some relief, the law in presenti, is where the building has several co-owners, in absence of partition, even one co-owner can maintain proceedings for eviction of tenant(s) unless such eviction proceedings are objected to by other co-owners individually or collectively, as the case may be, expressing their intention to keep tenancy continue.

37. The Court after considering different judgments has clearly held that a co-owner has full right to maintain a suit for eviction unless other co-owner raise any objection for the same.

38. The another judgment relied upon by the learned counsel for the plaintiff-opposite party is Tmt. Kasthuri Radhakrishnan(Supra). Relevant paragraph of the said judgment is quoted hereinbelow:

"It is well settled by at least three decisions of this Court, namely, Sri Ram Pasricha v. Jagannath (1976) 4 SCC 184Kanta Goel v. B.P. Pathak, (1977) 2 SCC 814 and Pal Singh v. Sunder Singh, (1989) 1 SCC 444 that one of the co-owners can alone and in his own right file a suit for ejectment of the tenant and it is no defence open to the tenant to question the maintainability of the suit on the ground that the other co-owners were not joined as parties to the suit. When the property forming the 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 the tenant without joining the other co-owners if such other co-owners do not object. In Sri Ram Pasricha case reliance was placed by the tenant on the English rule 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 must be of all the landlords. The Court noted that the English rule was not followed by the High Courts of Calcutta and Gujarat which High Courts have respectfully dissented from the rule of English law. This Court held that a decree could be passed in favour of the plaintiff though he was not the absolute and full owner of the premises because he required the premises for his own use and also satisfied the requirement of being "if he is the owner", the expression as employed by Section 13(1)(f) of the W.B. Premises Tenancy Act, 1956.""

39. From the perusal of the above paragraph, it transpires that in this judgment, the Apex Court while considering many judgments, has clearly held that a co-owner has full right for filing a suit for eviction in case other co-owner/s do not object.

40. In the present case, co-owner Sri Rakesh Kumar Agarwal has never raised any objection for filing of suit for eviction by plaintiff-opposite party, Smt. Usha Sharma. Even after filing of suit, co-owner has never taken any objection and has never filed any impleadment application opposing the suit for eviction. Therefore, in light of law laid down by the Apex Court, though co-owner being an outsider, has full right for filing suit for eviction.

41. So far as argument of learned counsel for the revisionist-defendant about the co-owner not being a family member of other co-owner is concerned, in the eyes of law, though co-owners not being the family members, it does not make any difference and each co-owner has full right to file suit for eviction. There is no such Rule or law laid down by the Courts, which provides that in case of co-owners being family members have different better right than that of co-owners not being family members.

42. In light of discussion made herein above, this Court is of the firm view that once by the virtue of valid document, co-ownership is obtained, any co-owner can maintain suit for eviction equally as to whether he is a family member or not unless not objected by the other co-owner.

43. Another argument by learned counsel for the petitioner-defendant about the partition of property for filing suit for eviction is concerned, that is also having no force. Petitioner-defendant being a tenant has no concern with the partition of property in dispute and it is between the co-owners. Tenant has no business to raise such objection and it is only open for co-owners. Again this Court is of the firm view that tenant has no right to raise issue of partition in eviction suit.

44. Therefore, in light of facts and judgments discussed herein above, this Court is of the firm view that co-owner whether being a family member or not has full right to file suit for eviction in case not objected by other co-owners. Partition of property in dispute is not necessary requirement for filing a suit for eviction so far as tenant is concerned. It is only between the co-owners and in the present case, co-owners are having no dissent on the point of filing of suit for eviction nor having any dispute of partition. The only requirement for filing suit for eviction is about the relationship of landlord and tenant and service of notice, which is not disputed in the present case. Therefore this Court finds no good reason to interfere with the impugned order dated 07.02.2023.

45. Therefore, revision lacks merit and is accordingly dismissed.

46. No order as to costs.

Order date: 05.05.2023

ADY