G. Manoharan vs K.A. Lakshmanan

S.S. Subramani, J.—Tenant in R.C.O.P. No. 35 of 1984, on the file of District Munsif''s Court, Mayiladuthurai, is the revision petitioner.

Respondent herein filed a petition for eviction of a residential building, under Sec.10 (3) (a) (i) and (c) of the Tamil Nadu Buildings (Lease and

Rent Control) Act, Le., he wanted the building in question bona fide for his own occupation and also as additional accommodation. It is averred in

the eviction petition that the schedule building belonged to his father Abatharanam Chettiar and that he executed a Will on 1-6-1983 whereby he

bequeathed the schedule property in favour of the landlord. It is further averred that the landlord is now residing in a building which is not sufficient

for his family, since he is residing with other members of the family. He made many demands to the tenant to vacate the premises, but were of no

avail. Hence he filed the eviction petition.

In the counter, tenant contended that the claim of the landlord is not bona fide, and that the landlord has got other buildings of his own. There is

neither a necessity for own occupation nor additional accommodation. There were even prior proceedings between landlord''s father and himself,

and only because landlord''s father could not get possession, respondent herein has initiated this proceeding.

Rent Controller took oral and documentary evidence, and came to the conclusion that the landlord cannot get an order of eviction (sic) on the

ground of additional accommodation or bona fide own occupation. In so far as the ground of additional accommodation is concerned, Rent

Controller found that the landlord is not in possession of any portion of the building and that he is residing away from the schedule building. If that

was so, the petition will not lie for additional accommodation. In so far as the requirement for own occupation is concerned, the finding was that it

lacks bona fides, and the landlord has other buildings of his own, Consequently, the eviction petition was dismissed.

The matter was taken in Appeal before the Appellate Authority as R.C.A. No. 16 of 1990, Sub Court, Mayiladuthurai. The Appellate

Authority also confirmed the finding that the landlord is not entitled to get possession as additional accommodation. It came to the conclusion that

the landlord is entitled to evict the tenant on the ground that the building is required bona fide for his own occupation. The Appellate Authority was

of the further view that even though the landlord has other buildings of his own, the brothers are also entitled to a share over the same, and there is

no division between them. The sum and substance of the finding of the Appellate Authority is that the landlord is not the sole owner of the building,

and there is no disqualification as per the Statute, to get an order of eviction. It is that part of the finding of the Appellate Authority which is

challenged by the tenant in this Revision.

Ex.A-1 is the Will executed by landlord''s father on 1-6-1983. The same is proved by the landlord himself. He has also examined an attestor

under Ex.A-1. Both the Authorities below have found that the Will is genuine. Even though in the Objection, the tenant has questioned the validity

of the Will, before this Court, he did not argue about it. He also conceded that in view of the concurrent finding, and that too in a summary

procedure, it will not be proper on his part to canvass the correctness of that finding..

Learned counsel for the petitioner submitted that even if Ex.A-1 is found to be genuine, that will also disqualify the landlord from getting

possession. His argument is that in the eviction petition, the landlord has averred that he is residing in a house along with the other members of the

family. Learned counsel submitted that under Ex.A-1, the very same building where the landlord resides has been allotted to him exclusively, and if

so, he is the owner of a building, and he is in possession of the same. Sec. 10 (3) (a) (i) of the Rent Control Act in such cases prohibits the

landlord from seeking eviction. The Rent Controller accepted the case of the tenant. But, when the matter was taken before the Appellate

Authority, it was of the view that there is no division between the brothers of the landlord and, therefore, the building where the landlord resides

does not belong to him exclusively. The'' Appellate Authority held that the landlord had only a co-ownership right over the building.

Learned counsel for the respondent relied on the evidence of landlord''s brother who has been examined as P.W.3. In his deposition, he has

unequivocally admitted that subsequent to the death of their father, there had been a partition between the two brothers, and the building where the

landlord resides, exclusively belongs to him. In chief examination of P.W.1, landlord, it is said thus:-

In cross examination he has said thus:-

P.W.3 landlord''s brother has stated in cross examination as follows:-

From the evidence of P.W.3, it is clear that as per Ex. A-1 Will, even though the property was given jointly with others, after the death of their

father, the same was partitioned by metes and bounds. The landlord has also put up a construction in the share allotted to him, and he is residing in

that building. The above admission of P.W.3 was not taken into consideration by the Appellate Authority. The Appellate Authority was of the view

that since there is no document evidencing a partition, it cannot be said that the landlord is the sole owner of the property in which he is residing.

This, according to me, is a result of misreading of the evidence of P.W.3 and goes against the admission of the landlord himself. The Rent

Controller elaborately appreciated the evidence of the landlord and came to the conclusion that the landlord is the owner of the building where he

resides. He further came to the conclusion that the allegation of the petitioner (landlord) that other members were also residing with his family is

false. P.W.3''s evidence supports the said inference.

Even if the landlord is only a co-owner as found by the Appellate Authority and not an exclusive owner, he will not be entitled to get possession.

Whatever may be the law earlier, in view of the decision reported in Sales Tax Officer, Kanpur and Others Vs. Union of India (UOI) and Others, ,

the landlord is disqualified from filing the eviction petition. The question that came for consideration in that case was, regarding non residential

building. The same principle applies even in the case of a residential building in view of the provisions under the Statute. In that case, the Supreme

Court held that a co-owner is a full owner for all purposes, and, if he is in possession as a co-owner, he will not be entitled to seek eviction of a

tenant. That case is also one which arose under the Tamil Nadu Buildings (Lease and Rent Control) Act. Their Lordships said that a co-owner is a

full owner for all purposes. In the decision cited above, their Lordships held thus:-

If a landlord is a co-owner of a non residential building in the city, town or village concerned, which he is occupying for purposes of carrying on

his business, he will be not be occupying there for a non residential building of his own envisaged in the the above Section 10(3)(a)(iii), as would

disentitle him to the ground of eviction available thereunder being the real question needing our answer in the light of the aforesaid plea of learned

counsel for respondents urged in questioning the sustainability of the contention raised on behalf of the appellant-tenant, we have to find the answer

therefore .

The answer to the said question, in our view, cannot be anything other than that a non residential building in occupation of landlord which is ""his

own"" envisaged in Section 10(3)(a)(iii) above, is not only that of which he is an absolute owner, but also that of which he is a co-owner, for, a co-

owner of a building who is its landlord is regarded under Rent Control Laws of our country as its owner entitled to obtain possession of such a

building from a tenant for his bona fide requirement.

In Sri Ram Pasricha v. Jagannath a three Judge Bench of this Court had to consider the question whether a co-owner landlord can be said to

require the premises for his own occupation within the meaning of the expression ""if he is the owner"" in Section 13 (1) (f) of the West Bengal

Tenancy Act, 1956 which read thus:- (SCC p. 189, para 20)

Protection of tenant against eviction - (1) Notwithstanding anything to the contrary in any other law, no order or decree for the recovery of

possession of any premises shall be made by any Court in favour of the landlord against a tenant except on one or more of the following grounds,

namely:

X X X X

(f) Where the premises are reasonably required by. the landlord either for purpose of building or rebuilding or for making thereto substantial

additions or ''alteration or for his own occupation if he is the owner 6r for the occupation of any person for whose benefit the premises are held.

The Bench which considered the aforesaid question with reference to the said provision of Rent Control Law, expressed its view thereon, thus:

(SCC p. 190, paras 27-28)

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 premised 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 the acknowledged landlord of the

defendants...We are of opinion that a co-owner is as much an owner of the entire property as any sole owner of a property is.

The owner in the expression ""if he is the owner"" in Section 13 (1) (f) of the West Bengal Tenancy Act, 1956 when as opined by this Court ought

to be regarded as ""the co-owner"" inasmuch as ""the owner"", like any sole owner of property, there would be no justification for us to hold that ""the

non-residential building which is his own"" in Section 10 (3) (a) (iii) of the Act, can only be that of its absolute ''owner'' and not of its ''co-owner''.

Therefore, we have no hesitation in reaching the conclusion that the respondents, who are carrying on the business of M/s. Fakruddin and

Company in non-residential building No. 151, Linghi Chetty Street, Madras, of which they are co-owner can be regarded as landlords, who are

occupying their own non-residential building envisaged under clause (iii) of Section 10 (3) (a)of the Act, as would disentitle them to retain the

benefit of the eviction order made by the Rent Controller against the tenant in respect of the petition non-residential building at the instance of the

deceased respondent 1, for carrying on his business on the ground that he did not occupy his own non-residential building for the purpose.

Consequently, the eviction order of the Rent Controller as affirmed by the appellate authority and the High Court, which is under challenge in this

appeal, calls to be set aside taking into consideration the developments which have taken place during its pendency in this Court. Paras 8 to 13

In view of my conclusion that the landlord is in possession of another building of his own, and also in view of the decision of the Supreme Court

cited supra, I hold that the landlord is not entitled to get eviction in this proceeding. The order of the Appellate Authority in R.C.A. No. 16 of 1990

is set aside by allowing this Revision. The order of the Rent Controller is restored. There will be no order as to costs.