Ramavtar Kachwaha vs Anil Kumar Agrawal

Heard on admission.

This second appeal by the defendant/appellant is directed against the judgment and decree dated 31.10.2019 passed in Regular Civil Appeal No.1700014/2014 by Fifth Additional District Judge, Katni (M.P.), arising out of judgment and decree dated 30.07.2014 passed in C.S. No.86-A/2014 by Third Additional Civil Judge Class II to the Court of First Civil Judge Class II, Katni (M.P.), whereby the suit filed by the plaintiff/respondent was decreed.

It is an admitted fact that the disputed premises earlier belonged to Viswanath Prasad Agrawal, late father of plaintiff, who has given one room with 'parchhi' on rent to Ramadhin, grandfather of defendant. After the death of plaintiff, the house came in the possession of plaintiff, his brother Arvind Kumar and mother Rampati Devi. Rampati Devi has also died, therefore, plaintiff and his brother are the co-brothers of the house. It is also undisputed that after the death of Ramadhin his son Bhikamlal and thereafter the present defendant became the tenant.

Plaintiff filed a suit for eviction under Section 12(1)(d) of the M.P. Accommodation Control Act, 1961 alleging that earlier oral partition has been taken place between him and his brother Arvind Kumar. Three room including the rented premises came to his share. He is having a large family and the two rooms are not sufficient for his residence, therefore, he bonafidely required the room in the occupation of defendant for his residence. It is further alleged that no other alternative suitable accommodation is available to him and the defendant does not live in the rented premises for the last 5 to 6 years and has put a lock there.

The defendant filed the written statement. He did not deny being a tenant of the suit premises, however stated that the suit has been filed on false grounds, there is no partition between the brothers and he is still residing in the rented premises. It was further stated that previously a suit was filed by the plaintiff alongwith his mother, which was dismissed.

On the basis of pleadings of the parties, the trial Court framed necessary issues and recorded the evidence. After evaluation of the pleadings as well as the evidence adduced by the parties, the trial Court decreed the suit and recorded a finding that plaintiff and his brother are co-owners of the suit premises and defendant is in possession as tenant since the time of his forefathers. The Court also found that the defendant has put a lock on the rented premises. The bonafide need of the plaintiff and that no other suitable alternative accommodation for his residence was also found proved.

Aggrieved by the aforesaid, defendant/appellant filed a first appeal. The appellate Court after detailed appreciation of the entire evidence, dismissed the appeal and confirmed the judgment and decree passed by the trial Court.

The contention of learned counsel for the defendant/appellant is that the Courts below have erred in not considering the fact that the suit premises is jointly owned by plaintiff and his brother and in absence of any written deed of partition, plaintiff has no right to sue alone. She further urged that earlier also a suit was filed by the plaintiff, which was dismissed.

No other ground has been raised by the appellant.

Having heard the learned counsel for appellant at length and on perusal of the record, I am of the view that this appeal deserves to be dismissed.

It is settled position of law that suit filed by a co-owner is maintainable in law. In the case of (2006) 2 SCC 724 Mohindar Prasad Jain Vs. Manohar Lal Jain the Supreme Court has observed thus :-

"11. A suit filed by a co-owner, thus, is maintainable in law. It is not necessary for the co- owner 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....."

In the case of Sri Ram Pasricha Vs. Jagannath and others (1976) 4 SCC 184, the Supreme Court while referring to a passage in Chapter 8 from Salmond on Jurisprudence (13th edition), has observed :-

"As a general rule a thing is owned by one person only at a time, but duplicate ownership is perfectly possible. Two or more persons may at the same time have ownership of the same thing vested in them. This may happen in several distinct ways, but the simplest and most obvious case is that of co-ownership. Partners, for example, are co-owners of the chattels which constitute their stock-in trade of the lease of the premises on which their business is conducted, and of the debts owing to them by their customers. It is not correct to say that property owned by co-owners is divided between them, each of them owning a sepa- rate part. 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 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".

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 he said that he is only a part-owner or a fractional owner of the property. The position will, change only when parti- tion 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 the acknowledged landlord of the defendants."

In the present case, there is nothing on record to show that co-owner Arvind Kumar has objected to the eviction proceedings, rather he himself appeared as witness (P.W.-2) and deposed in favour of the plaintiff. Further, in view of the admitted relationship between the parties being landlord and tenant, the tenant is estopped from questioning the title of the landlord under Section 116 of the Evidence Act. Hence, the submission of learned counsel for the appellant cannot be accepted. As regards the contention that earlier the plaintiff has filed a suit for eviction and the same was dismissed, it is reflected from para 11 of the deposition of the plaintiff that the said suit was for arrears of rent and as the defendant deposited the entire rent amount at that time, hence the suit was dismissed.

In view of the aforestated, both the Courts below have not not committed any illegality or perversity in decreeing the suit and dismissing the appeal of the appellant. I do not find any illegality or perversity in the judgment and decree passed by the Courts below which may warrant interference by this Court under the appellate jurisdiction. No substantial question of law arises for consideration in this appeal.

Resultantly, this second appeal is dismissed.

Looking to the situation due to Covid-19 pandemic, six months' time from today is granted to the defendant/appellant to vacate the premises, subject to filing the usual undertaking within a period of 30 days on the affidavit of the appellant to deliver vacant and peaceful possession over the premises to the plaintiff/respondent at the end of the extended time and in between regularly paying the rent. In case the undertaking or the rent is not deposited regularly, the plaintiff would be at liberty to execute the decree even before the period of six months is over.