M/s Rohan Motors Limited vs Narendra Mittal And Another

Sudhanshu Dhulia, J

This is tenant's revision under Section 25 of the Provincial Small Causes Courts Act, which has been filed against the decree of eviction, passed by the Judge, Small Cause Court, Dehradun, in SCC Suit No. 22 of 2009.

The premises in question is situated in Dehradun. This property was earlier under the co-ownership of one Sri D.D. Vasudev and Ms. Kumar Rani Kamla Devi, each having 50% share of the property. On 10.05.2006, respondent nos. 1 & 2, who are the "landlord" in the present case, purchased the portion of the property which was under the ownership of Sri D.D. Vasudev and consequently stepped into the shoes of Sri D.D. Vasudev and became a co-owner of the property (shown as ABCD). Ms. Kumar Rani Kamla Devi had the remaining 1/2 share of the property.

It is an admitted fact that before respondent no. 1 purchased the property from D.D. Vasudev, a partition suit between the earlier co-owners was pending before the civil court, being Suit No. 693 of 2002. The suit was decreed ex parte and a preliminary decree was drawn and later a final decree was also passed, though ex parte. Against this an application under Order 9 Rule 13 CPC was moved by the tenant, which was allowed and a revision against the said order was filed by present respondent no. 1, which is still pending before the 8th Additional District Judge, Dehradun.

Meanwhile, respondent no. 1 instituted a suit for rent and eviction against the present revisionist/tenant being SCC Suit No. 22 of 2009, which has been decreed by the learned Judge Small Cause Court vide judgment and decree dated 24.08.2013. Aggrieved, the tenant has filed the present revision.

The main ground for challenge in the present revision is that the suit for eviction was not maintainable at the hands of a co-owner, particularly in view of the fact that the trial court has given a finding that the suit was filed by a person who is not an absolute owner and only a co-owner.

The trial court had framed the following issues for determination:-

"1. Is the Plaintiff's landlord of the suit property and is there a landlord-Tenant relationship amongst the Plaintiff's and Defendant?

Whether the Plaintiff's have terminated the tenancy of Defendant?

Whether the suit property is a joint ownership property and no partition has taken place amongst the co-owners and also whether the suit is bad for non-joining of necessary parties?

Is the Plaintiff entitled to the reliefs as prayer for?"

As far as issue nos. 1 & 2 are concerned, the trial court recorded a finding that the relationship of landlord and tenant between the parties stands proved and the tenancy of defendant stood terminated on 17.07.2009.

While deciding issue no. 3, the learned trial court recorded a finding that the suit property 1/2 under ownership of Narendra Mittal and Udit Mittal, and the other half was of Kumar Rani Kamla Devi, and consequently the suit was decreed in favour of the plaintiff/landlord, for the portion of which he was admittedly the landlord.

Undoubtedly, the entire property which has been given on rent to the present revisionist was always in the joint ownership, initially between D.D. Vasudev and Kumar Rani Kamla and now between Narendra Mittal and Udit Mittal at one hand and Kumar Rani Kamla Devi, on the other.

It is again an admitted case that ever since the premises came under the tenancy of the present revisionist in the year 1991, he has been paying rent separately to D.D. Vasudev and Kumar Rani Kamla Devi, to the extent of 50 % share each. The present respondent has purchased the property in the year 2006 and the revisionist/tenant is continuing to pay the 50% rent to the present respondent.

The question is whether the suit for eviction of the tenant can be maintained by only one of the co-owners of the property?

Learned counsel for the revisionist has heavily relied upon the judgments of Hon'ble Apex Court in the case of -

(1) S.K. Sattar Sk Mohd. Choudhary v. Gundappa Amabadas Bukate reported in (1996) 6 SCC 373

(2) Navin Chander Anand v. Union of India & ors. reported in 2018 SCC Online Del 9902.

The learned counsel for the respondents has relied upon the following judgments of the Hon'ble Apex Court:

(1) Kanta Goel v. B.P. Pathak and others reported in (1977) 2 SCC 814

(2) Sri Ram Pasricha v. Jagannath and others reported in (1976) 4 SCC 184

(3) Pal Singh v. Sunder Singh (Dead) by LRs and others reported in (1989) 1 SCC 444

To reiterate, the factual position of the property is as follows. The property was under the co-ownership of one Sri D.D. Vasudev and Ms. Kumar Rani Kamla Devi, who were having 50% share each in the property. On 10.05.2006, respondent nos. 1 & 2 purchased the portion of the property which was under the ownership of Sri D.D. Vasudev and stepped into the shoes of Sri D.D. Vasudev. There was already a partition suit pending between Sri D.D. Vasudev and Ms. Kumar Rani Kamla Devi, in the Civil Court, Dehradun, in which the present landlord (respondent nos. 1 & 2), were substituted for Sri D.D. Vasudev. The suit was decreed and a preliminary decree was prepared on 25.07.2011 and the present portion of the property on which the respondent nos. 1 & 2 claim rights as landlord was given in their favour and the remaining portion of the property was given in favour of Ms. Kumar Rani Kamla Devi (now to her legal heirs). On 06.09.2013 a final decree was prepared. Since the order was passed ex parte, an application under Order 9 Rule 13 CPC has been moved which is presently pending.

For all practical purposes therefore in any case the property in question already stands partitioned on which the landlord i.e. present respondent nos. 1 & 2 have raised their claim. But even if it is assumed for the sake of argument that the property has not yet been partitioned in metes and bounds, the question is whether a co-owner of the property can sue the tenant for eviction? That is the only question now before this Court.

The learned counsel for the revisionist has submitted that there is a unity and integrity of tenancy. The tenancy cannot be split and a co-owner cannot sue for eviction unless the property has been partitioned in metes and bounds. This, in short, is the legal submission of the revisionist.

Learned counsel for the revisionist has heavily relied on the decision of Hon'ble Apex Court in the case of Sk. Sattar Mohd. Choudhary v. Gundappa Amabadas Bukate reported in (1996) 6 SCC 373. The case of Sk. Sattar (supra) arises out of peculiar facts and circumstances. The part of the judgment relied upon by the learned counsel for the revisionist, and the observation of the Hon'ble Apex Court therein have been taken out of context as in fact the judgment does not support the contention of the revisionist. The facts of the case of Sk. Sattar (supra) are that it was the landlord who was before the Hon'ble Apex Court, who was the owner of a part of the property. His eviction suit was decided in his favour by the Rent Control Authority and even in the appeal, but the High Court thereafter had given a decision against him on grounds that the Rent Control Authority and the learned District Judge did not actually see the question of maintainability of the suit for eviction petition as eviction suit could not be filed by one of the co-owners. The Hon'ble Apex Court had set aside the order of the High Court. The observations of the Hon'ble Apex Court initially in the judgment are as follows:

"8. The emphasis of the High Court was, throughout the judgment, on the indivisibility of contract of tenancy. The High Court treaded on a path which let it to a blind alley and did not take diversion which would have opened up the road to arrive at a correct decision."

The Hon'ble Apex Court then refers to Section 109 of the Transfer of Property Act, which is a provision which deals with the lease and the rights of the lessor. Section 109 of the Transfer of Property Act, 1882 reads as under:

"109. Rights of lessor's transferee.- If the lessor transfers the property leased or any part thereof, or any part of his interest therein, the transferee, in the absence of a contract to the contrary, shall possess all the rights, and, if the lessee so elects, be subject to all the liabilities of the lessor as to the property or part transferred so long as he is the owner of it; but the lessor shall not, by reason only of such transfer, cease to be subject to any of the liabilities imposed upon him by the lease, unless the lessee elects to treat the transferee as the person liable to him:

Provided that the transferee is not entitled to arrears of rent due before the transfer, and that, if the lessee, not having reasons to believe that such transfer has been made, pays rent to the lessor, the lessee shall not be liable to pay such rent over again to the transferee.

The lessor, the transferee and the lessee may determine what proportion of the premium or rent reserved by the lease is payable in respect of the part so transferred, and, in case they disagree, such determination may be made by any court having jurisdiction to entertain a suit for the possession of the property leased."

In short, the aforesaid provision says that the rights and liabilities attached to the property (arising out of possession and control of that property) pass with the property.

Then the Hon'ble Apex Court in the said judgment further said as under:-

"Para 37. In view of the above discussion, it is obvious that the law with regard to the splitting of tenancy is not what the High Court has set out in the impugned judgment. As pointed out earlier, a co-sharer cannot initiate action for eviction of the tenant from the portion of the tenanted accommodation nor can he sue for his part of the rent. The tenancy cannot be split up either in estate or in rent or any other obligation by unilateral act of one of the co-owners. If, however, all the co-owners or the co-lessors agree among themselves and split by partition the demised property by metes and bounds and come to have definite, positive and identifiable shares in that property, they become separate individual owners of each severed portion and can deal with that portion as also the tenant thereof as individual owner/lessor. The right of joint lessors contemplated by Section 109 comes to be possessed by each of them separately and independently. There is no right in the tenant to prevent the joint owners or co-lessors from partitioning the tenanted accommodation among themselves. Whether the premises, which is in occupation of a tenant, shall be retained jointly by all the lessors or they would partition it among themselves, is the exclusive right of the lessors to which no objection can be taken by the tenant, particularly where the tenant knew from the very beginning that the property was jointly owned by several persons and that, even if he was being dealt with by only one of them on behalf of the whole body of the lessors, he cannot object to the transfer of any portion of the property in favour of a third person by one of the owners or to the partition of the property. It will, however, be open to the tenant to show that the partition was not bona fide and was a sham transaction to overcome the rigours of Rent Control laws which protected eviction of the tenants except on specified grounds set out in the relevant statute."

In the case of Sri Ram Pasricha v. Jagannath and others reported in (1976) 4 SCC 184, it was a defendant's appeal before the Hon'ble Apex Court against the order of his eviction as upheld by the Calcutta High Court. The landlord was admittedly the landlord of a portion of the tenanted property whose suit for eviction was ultimately allowed by the Calcutta High Court. The objection therein in that case by the tenant was that the co-owner cannot sue for his eviction. In the said case, the Hon'ble Apex Court has held as under:-

"27. Jurisprudentially it is not correct to say that a co-owner of a property is not its owner. He owns every party 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...."

This judgment of Hon'ble Supreme Court in the case of Sri Ram Pasricha (supra) was later applied by the Hon'ble Apex Court in the case of Kanta Goel v. B.P. Pathak and others reported in (1977) 2 SCC 814.

In the case of Mohar Singh (Dead) by LRs v. Devi Charan and others reported in (1988) 3 SCC 63, the Hon'ble Apex Court stated as under:-

"7.It is a trite proposition that a landlord cannot split the unity and integrity of the tenancy and recover possession of a part of the demised premises from the tenant. But Section 109 of the Transfer of Property Act provides a statutory exception to this rule and enables an assignee of a part of the reversion to exercise all the rights of the landlord in respect of the portion respecting which the reversion is so assigned subject, of course, to the other covenant running with the land. This is the true effect of the words 'shall possess all the rights...of the lessor as to the property or part transferred...' occurring in Section 109 of the T.P. Act. There is no need for a consensual attornment. The attornment is brought about by operation of law. The limitation on the right of the landlord against splitting up of the integrity of the tenancy, inhering in the inhibitions of his own contract, does not visit the assignee of the part of the reversion. There is no need for the consent of the tenant for the severance of the reversion and the assignment of the part so severed. This proposition is too well settled to require any further elucidation or reiteration."

In short, therefore the position of law is not what is being made out at the hands of the learned counsel for the revisionist. In any case, in the present case, the learned counsel for the revisionist has quite unnecessarily taken this Court to the aspect of unity and integrity of tenancy on the principle of one co-owner being incapable of sueing for eviction till a formal partition is made of the property in metes and bounds.

This is so because presently we are only concern with the question of tenancy and the question of landlord-tenant relationship therein. It has always been an admitted fact that the revisionist has throughout accepted the present respondent nos. 1 & 2 to be their landlord on ½ of the property. The ½ of the property is also well defined portion of the property. They cannot raise any objection or even be a party in the partition suit between the co-owners. Here in fact it is question of two different tenancies, one between the Ms. Kumar Rani Kamal Devi and her legal heirs and the revisionist and another between the present respondent nos. 1 & 2 and the present revisionist. This tenancy has come to an end.

In a rent control law all what has to be seen by the court is that there is a premises which has been let out and there is a landlord which collects the rent of the premises and there is a tenant who pays the rent of the property to that landlord.

In the case of Pal Singh v. Sunder Singh (Dead) by LRs and others reported in (1989) 1 SCC 444, the question before the Hon'ble Apex Court again in a rent control matter was that whether a co-owner can sue for eviction of the tenant in the absence of other co-owner and whether the petition for eviction is maintainable. Answering to that question, the Hon'ble Apex Court referring to the earlier decisions of the Hon'ble Apex Court has said that there was no substance in the argument of the appellant that the absence of the other co-owners the landlord or part co-owner was disentitled to sue for eviction, particularly in the light of the fact that other co-owners did not object to the claim of eviction.

The same are the facts of the present case. Although the eviction proceedings in the present case before the Judge, Small Causes Court have been raised by respondent nos. 1 & 2, who may technically be only co-owners, yet there has never been any objection on the part of other co-owner of the property for eviction of the present revisionist.

The settled position of law is that a suit for eviction is maintainable at the hands of even one co-owner of the property, provided the other co-owners do not have any objection. The other co-owner of the property in the present case, who always had the full knowledge of the pendency of the eviction suit never raised any objection or moved an application to be a party to that small cause suit, either before the Small Cause Court or before this Court. The fact that the other co-owner had the knowledge of the eviction suit is, inter alia, evident from the fact that the co-owner had filed an application under Order 9 Rule 13, through the same counsel who was appearing on behalf of the tenant in eviction suit before the Judge, Small Causes Court, and even before this Court. Hence it is clear that the co-owner, inspite of his knowledge of the eviction suit against the tenant, did not raise any objection, before the trial court.

In the present case, although the property may still be technically undivided, yet the tenancy on the property was split. The present revisionist who is a tenant of the said property has always been treating the present respondent nos. 1 & 2 as a separate landlord. In the first place there was no objection raised by the tenant, when the present respondent (landlord) stepped into the shoes of the earlier owner and landlord of the property. Rather the tenant continued to pay rent of a definite portion of property to the respondent/landlord as he was paying to the earlier owner/landlord. There is hence a clear cut acceptance of tenancy here and recognition of the respondent as the landlord. In other words, there is an attornment. Admittedly he pays 1/2 rent of the property to one landlord and the other half to the other. Therefore the tenancy of the property was always split and divided. Even if it is assumed for the sake of argument that there has been no partition of property in metes and bounds, as is being emphasised by the revisionist, it has no consequences to the present nature of the dispute, as the present revisionist has always admitted respondent nos. 1 & 2 to be their landlord for a definite portion of the property marked as ABCD. This again is evident from the fact that on 01.05.2009, a separate lease deed was executed between the other co-owners and the present revisionist, where it has been clearly stated that the lease is of the demarcated portion which is the remaining portion of the property i.e. other than 1/2 portion on which the present respondent nos. 1 & 2 have set up their claim. Although subsequent to the filing of the eviction suit at the hands of the present respondents, this lease deed was rectified stating that instead of definite portion, it is for one-half of the portion, without actually identifying the property. This is, however, an afterthought and the rectification made is an abuse of the process of law, done with a purpose to defeat the legitimate claim of the landlord. It is therefore an admitted case of the present revisionist that he was always a tenant on a particular and defined portion of the property as far as his landlord i.e. respondent nos. 1 & 2 are concerned. Therefore the argument of the revisionist that unless the property is partitioned in metes and bounds, the landlord cannot file a suit for eviction is an untenable proposition in law. Consequently, even if it is assumed that legally speaking there is still no final decree of partition as yet, but the is different and divided both by the conduct and the admission of none other than the present revisionist/tenant.

In view thereof, civil revision fails and is hereby dismissed. The judgment and decree passed by the Judge, Small Cause Court, Dehradun dated 24.08.2013 passed in SCC Suit No. 22 of 2009 is hereby affirmed.

However, purely in the interest of justice, as this Court has been informed by the learned counsel for the revisionist that he may pursue his remedy before the Hon'ble Apex Court, this order shall be kept in abeyance for a period of three months, from the date of preparation of the a certified copy of this order.