Karnataka High Court
Rathanchand Purohith Alias H ... vs Smt N. Kantha on 15 July, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
-1-
NC: 2024:KHC:27436
RSA No. 2192 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.2192 OF 2023 (EJE)
BETWEEN:
RATHANCHAND PUROHITH ALIAS
H RATHANCHAND PUROHITH
S/O LATE HARJIJI PUROHITH
AGED ABOUT 71 YEARS
NO.297/A, CLOTH MERCHANTS
NO.891, UMA TALKIES ROAD
MYSURU-570009
...APPELLANT
(BY SRI CHALAPATHY, ADVOCATE FOR
SRI SRINIVAS S V. ADVOCATE)
AND:
1. SMT N. KANTHA
Digitally signed W/O RAMACHANDRA
by DEVIKA M AGED ABOUT 70 YEARS
Location: HIGH R/A D.NO.302, 'LAVANYA'
COURT OF
KARNATAKA VI MAIN, 7TH CROSS
III STAGE, GOKULAM
MYSURU-560002
2. SMT N DEVIKA ALIAS SUVARNA
W/O PUTTARAJU
AGED ABOUT 60 YEARS
D.NO.286, GAYATHRIPURAM II STAGE
MYSURU-570019
3. SMT. N UMADEVI
W/O A N SELVANANDA
-2-
NC: 2024:KHC:27436
RSA No. 2192 of 2023
AGED ABOUT 58 YEARS
D.NO.6, PUTTARANGANNA LAYOUT
SHESHADRIPURAM
BENGALURU-560020
4. SMT. N MANORAMA
W/O LATE C RAMALINGAM
AGED ABOUT 54 YEARS
D.NO.4793, 16TH MAIN
VIJAYANAGAR
MYSURU-570017
5. SMT. N SHAMALA, W/O N BASAVARAJU
AGED ABOUT 48 YEARS
D.NO.205, 8TH MAIN,
II STAGE HEBBAL
NEAR HAMPI CIRCLE
MYSURU-570016
6. SRI R VINAY KUMAR
S/O RAMACHANDRA MURTHY
AGED ABOUT 46 YEARS
NO.159, G-FLOOR
1ST MAIN, IV CROSS
LOWER PALACE ORCHARDS
BENGALURU-560080
7. SMT N MADHU ALIAS MAHADEVI
W/O RAMACHANDRA MURTHY
AGED ABOUT 66 YEARS
NO.159, G-FLOOR
1ST MAIN, IV CROSS
LOWER PALACE ORCHARDS
BENGALURU-560080
...RESPONDENTS
(BY SRI Y K NARAYANA SHARMA, ADVOCATE
FOR C/R1, R6 & R7)
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 28.08.2023 PASSED IN
R.A.NO.194/2022 ON THE FILE OF III ADDITIONAL SENIOR
CIVIL JUDGE AND CJM, MYSURU AND ETC.
-3-
NC: 2024:KHC:27436
RSA No. 2192 of 2023
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This matter is listed for admission. Heard the learned counsel appearing for the respective parties.
2. The factual matrix of the case of the plaintiffs before the Trial Court that the defendant is a tenant of suit schedule property as per the terms of settlement recorded in the appeal RFA Nos.809/2002 and 910/2002 before the Hon'ble high Court of Karnataka, Bengaluru, wherein it was ordered that the plaintiff is entitled to recover the arrears of rent and draw the rent if any deposited by the defendant in the Court. The defendant had filed HRC No.29/1982 seeking permission to deposit the rent. On 28.09.1982, an order was passed by the Court permitting the defendant to deposit the rent but till date the plaintiff has not received any intimation regarding the deposit of the rent to the Court in O.S.No.276/1983. Even in R.F.A.No.809/2002 on the file of Hon'ble High Court of Karnataka, Bengaluru, the defendant had filed similar application and permission was granted for depositing the rent. -4-
NC: 2024:KHC:27436 RSA No. 2192 of 2023
3. It is also contended that the rate of rent payable is Rs.200/- per month. Originally the lease of schedule premises had been made by father of plaintiff Nagendrappa in favour of defendant through agreement of lease dated 12.06.1977, now the said premises is under the co-ownership of plaintiffs and right of recovering the rent and possession of the premises by plaintiff is being recognised in R.F.A.No.809/2002 by the High Court and plaintiff did not receive any intimation regarding deposit of rent by defendant, thereby the said fact enables the plaintiff to terminate the lease of defendant. The defendant has not paid rent from 10.03.1984 and schedule premises is let out for commercial uses, measuring more than 40 square meters i.e., east to west 17 feet and north to south 11 feet. The plaintiff had issued termination notice to the defendant on 14.07.2010 terminating the tenancy of defendant from 01.07.2010 commencing on the midnight of 31.07.2010 and inspite of receipt of notice by defendant he has neither paid the rent nor vacated the schedule premises.
4. It is the contention of the plaintiffs that the defendant is liable to pay arrears of rent from 10.03.1984, the plaintiff is confining his claim of right from 18.02.2008, as such -5- NC: 2024:KHC:27436 RSA No. 2192 of 2023 the defendant is liable to pay rent from 10.02.2008 to 31.07.2010. In the agreement of lease, it is specified that in case defendant commits default in payment of rent, he shall pay rent at the rate of Rs.220/- per month, the claim of rent comes to Rs.6,490/-. Apart from that, the defendant is also liable to pay mesne profit at Rs.5,000/- per month from 01.08.2010, as such, on the date of filing of the suit, the defendant is liable to pay mesne profit or damage for the use and occupation in a sum of Rs.30,000/-, thereafter as on the date of suit, the defendant is liable to pay a total claim of Rs.36,490/- apart from vacating the schedule premises. Hence, the suit is filed for the relief of ejectment against the defendant.
5. After service of summons, the defendant appeared through his counsel and filed written statement except admitting that he is tenant in respect of suit schedule property on a monthly rent of Rs.220/- having taken the same from late B Nagendrappa and paid a sum of Rs.5,000/- as advance as per the lease agreement dated 12.06.1977 and denied other averments of the plaint. It is also contended that as per the directions of the competent Courts during the pendency, the -6- NC: 2024:KHC:27436 RSA No. 2192 of 2023 defendant had filed a petition in HRC No.29/1982 on 20.08.1982 and deposited the rent to the tune of Rs.41,420/-. In addition to this, the defendant had also paid property tax which plaintiff was liable to pay in respect of the suit schedule property to the tune of Rs.12,111.70. It is also contented that plaintiffs have issued notice dated 27.11.2007 on the similar grounds and the same was replied through reply notice dated 06.12.2007 narrating the facts mentioned above, hence, the legal notice dated 14.05.2010 was issued with an ulterior motive of vacating the defendant from the shop premises. That Sri N Ramachandra, plaintiffs Smt. N Madhu @ Mahadevi and Smt. N Shamala had agreed to sell the suit schedule property to the defendant and also acknowledged the transaction on 17.01.2008 in pursuance of the same, agreement was executed on 19.01.2008 in favour of the defendant. Further, it was agreed to deduct the loan amount of Rs.1,50,000/- incurred by B Nagendrappa on 15.06.1980 and further loan amount of Rs.15,00,000/- incurred by Smt. Puttamma on 10.01.2006 in all Rs.16,15,000/- and also the rent amount till date of execution of registered sale deed in favour of defendant. -7-
NC: 2024:KHC:27436 RSA No. 2192 of 2023
6. It is also contended that late B Nagendrappa was the original owner of schedule shop premises and his only son by name N Ramachandrappa who is the only brother of plaintiff has now agreed to sell his right over the suit schedule property to an extent of 1/8th share. Defendant has agreed that the agreement of sale deed dated 19.01.2008 and also another document executed by him in person on 17.01.2008 along with other heirs including the plaintiff in favour of defendant. In pursuance of the same, the said N Ramachandra has now received a sum of Rs.1,00,000/- under two different DD bearing No.091664 dated 17.05.2012 and No.091901 dated 01.08.2012 drawn on Indian Overseas Bank, Ashoka road Branch, Mysuru for Rs.50,000/- each as advance for the defendant and agreed to receive the balance sale consideration of Rs.19,675/- at the rate of Rs.8,200/- per square feet at the time of executing the registered sale deed in favour of the defendant. The plaintiff alone has no right either to issue quit notice and also to file suit for ejectment. That the plaintiff has given authority under the compromise before the Hon'ble High Court of Karnataka only to collect the rents from the tenants in R.F.A.Nos.809/2002 and 910/2002.
-8-
NC: 2024:KHC:27436 RSA No. 2192 of 2023
7. It is also contended that N Ramachandra who is the only brother of the plaintiff has now executed a registered sale deed dated 28.09.2015 for total sale consideration of Rs.1,91,675/- at the rate of Rs.8,200/- per square feet in favour of the defendant in respect of right over the suit schedule property to an extent of 1/8th share in pursuance of agreement of sale dated 19.01.2008 and also in another document executed by him in person on 17.08.2008 along with other heirs including plaintiff No.1. That the first plaintiff has given authority under the compromise before Hon'ble High Court only to collect the rent from the tenant in R.F.A.Nos.809/2002 and 910/2002. The defendant is a tenant of suit schedule property from 12.06.1977 and he was punctual in paying monthly rent.
8. The Trial Court having considered the pleadings of the parties framed the Issues and allowed them to lead their evidence. The Trial Court after considering both oral and documentary evidence placed on record comes to the conclusion that plaintiff proves that defendant has not complied the direction given by this Court in R.F.A.No.809/2002 which is -9- NC: 2024:KHC:27436 RSA No. 2192 of 2023 resulted in termination of the lease of the defendant in respect of the suit schedule property and the plaintiff proves that the defendant has not paid the rent since 10.03.1984 and the plaintiff proves that she has validly terminated the lease of the defendant in respect of the suit schedule property and the plaintiff proves that she is entitled for arrears of rent at Rs.36,490/- and damages and defendant fails to prove that he has purchased 1/8th share of co-owner under registered sale deed dated 28.09.2015 over the suit schedule property and partly decreed the suit of the plaintiffs and directed the defendant to quit and handover the vacant possession of the suit schedule property to the plaintiff within two months and held that the plaintiffs are entitled for recovery of arrears of rent of Rs.36,490/- including damages for the use and occupation of premises and also held that the plaintiffs are also entitled for damages at the rate of Rs.1,000/- per month from the date of suit till the vacate and handover of the vacant possession of the schedule premises.
9. Being aggrieved by the judgment and decree of the Trial Court, an appeal was preferred in R.A.No.194/2022. The First Appellate Court having taken note of the grounds urged in
- 10 -
NC: 2024:KHC:27436 RSA No. 2192 of 2023 the appeal memo, formulated the Points and having reassessed both oral and documentary evidence placed on record answered all the points as negative and dismissed the appeal. Being aggrieved by the concurrent finding of both the Courts, the present second appeal is filed before this Court.
10. The main contention of the counsel for the appellant before this Court that both the Courts have committed an error in coming to the conclusion that the defendant was in arrears of rent without considering material admissions given by PW1 and the documentary evidence produced by the defendant more particularly, Ex.D8 to D20. It is also contend that both the Courts failed to appreciate that the plaintiff had not at all challenged the statement of the defendant that he had deposited a sum of Rs.41,420/- before the concerned Court and that a total sum of Rs.72,293/- was paid by him towards property taxes and the same has to be considered by this Court. It is also contend that both the Courts have not considered the material admission given by PW1 during her cross-examination that it was the defendant who paid the property tax in respect of the suit property and the Courts have not assigned any reason for ignoring this material statement of
- 11 -
NC: 2024:KHC:27436 RSA No. 2192 of 2023 PW1. The counsel further contend that a reading of the cross- examination of PW1 also shows that the first plaintiff intended an adjustment of the property tax paid by the defendant towards arrears of rent. This has escaped the attention of both the Courts. On consideration of material on record, it is clear that the defendant proved payment of Rs.41,420/- from 30.08.1982 to 04.07.2000 as rents and a sum of Rs.72,293/- towards property taxes. The plaintiffs' plea is that the defendant has not paid the rent from 10.03.1984. It is also contend that the First Appellate Court failed to appreciate that notice at Ex.P4 was issued only by the first plaintiff although she was admittedly only a co-owner and other co-owners did not join her while issuing Ex.P4 and in the absence of any material to show that Ex.P4 notice was issued by plaintiff No.1 for herself and also on behalf of other co-owners, Ex.P4 stands vitiated by law. Hence, the counsel contend that Ex.P4 is not a valid notice and there is no valid termination of defendant and both the Courts failed to take note of the fact that the defendant having been conveyed 1/8th right, title and interest in the suit schedule property through Ex.D33 sale deed. The defendant being the owner of 1/8th undivided right, title and
- 12 -
NC: 2024:KHC:27436 RSA No. 2192 of 2023 interest, cannot be dispossessed by other co-owners by instituting a suit on the basis of a quit notice.
11. The counsel also in support of his argument relied upon the judgment reported in AIR 1973 GUJ 131:
MANU/GJ/0082/1972 in the case of NATUINAL GIRDHARLAL vs GULAMNABI JAMALBHAI MOTORWALA wherein it is held that two or more co-owners have granted a tenancy it can be determined only by a notice to quit given by all co-owners and also relied upon paragraphs 9 and 12 of the said judgment. The counsel also relied upon the judgment reported in 2009 (5) KAR L J 454: MANU/KA/0282/2009 in the case of A S KRISHNA MURTHY vs C N REVANNA wherein it is held that where the landlords' right belong jointly to several persons, a suit to eject a tenant can only be brought by all the co-owners suing jointly as plaintiffs and all the joint landlords must join in giving notice to the tenant before determining the tenancy. The counsel also relied upon the judgment reported in AIR 1953 ORI 245:
MANU/OR/0064/1953 in the case of CHHOTI DEI vs GANGADHAR MISRA and brought to notice of this Court
- 13 -
NC: 2024:KHC:27436 RSA No. 2192 of 2023 wherein discussion was made that notice for eviction issued by three brothers without the widow joining even through she had interest in the property is an invalid notice in law.
12. With regard to the right of the co-owners is concerned, the counsel relied upon the judgment reported in AIR 1999 SC 2272: MANU/SC/0203/1999 in the case of KOCHKUNJU NAIR vs KOSHY ALEXANDER wherein it is held that every co-owner has a right to enjoyment and possession equal to that of the other co-owner of co-owners. The counsel also relied upon the judgment with regard to decree against purchaser of a portion not executable in AIR 1999 SC 1694:
MANU/SC/0259/1999 in the case of JAGADISH DUTT vs DHARAM PAL and the counsel brought to notice of this Court paragraph 7 wherein it is held that in case where the interest of coparceners is undefined and cannot be specifically stated to be in respect of any one portion of the property, decree cannot be given effect to before ascertaining the rights of the parties by an appropriate decree in a partition suit.
13. The counsel also relied upon the judgment reported in (1972) 1 SCC 388 in the case of BHAWANJI LAKHAMSHI
- 14 -
NC: 2024:KHC:27436
RSA No. 2192 of 2023
AND OTHERS vs HIMATLAL JAMNADAS DANI AND
OTEHRS wherein the Apex Court discussed Section 116 of the Transfer of Property Act and the counsel brought to notice of this Court paragraph 9 wherein a discussion was made with regard to the act of holding over after the expiration of the term does not create a tenancy of any kind. If a tenant remains in possession after the determination of the lease, the common law rule is that he is a tenant on sufferance. A distinction should be drawn between a tenant continuing in possession after the determination of the term with the consent of the landlord and a tenant doing so without his consent. The former is a tenant at sufferance in English Law and the latter a tenant holding over a tenant at will. In view of the conclusion words of Section 116 of the Transfer of Property Act, a lessee holding over is in a better position than a tenant at will. The assent of the landlord to the continuance of possession after the determination of the tenancy will create a new tenancy. What the section contemplates is that on one side thee should be an offer of taking a new lease evidenced by the lessee or sub-lessee remaining in possession of the property after his term was over and on the other side there must be a definite
- 15 -
NC: 2024:KHC:27436 RSA No. 2192 of 2023 consent to the continuance of possession by the landlord expressed by acceptance of rent or otherwise.
14. The counsel also relied upon the judgment reported in AIR 1949 FC 124 in the case of KAI KHUSHROO BEZONJEE CAPADIA vs BAI JERBAI HIRJIBHOY WARDEN AND OTHERS and relied upon paragraphs 8 and 29 of the said judgment and in paragraph 8, a discussion was made with regard to Section 116 of the Transfer of Property Act and in paragraph 29 it is held that it will be seen that the section postulates the leasee remaining in possession after the determination of the lease which is conduct indicative, in ordinary circumstances, of his desire to continue as a tenant under the lessor and implies a tacit offer to take a new tenancy from the expiration of the old on the same terms so far as they are applicable to the new situation, and, when the lessor assents to the lessee so continuing in possession, he tacitly accepts the latter's offer and a fresh tenancy results by the implied agreement of the parties, when, further, the lessee in that situation tendrs rent and the lessor accepts it, their conduct raises more readily and clearly the implication of an agreement between the parties to create a fresh tenancy.
- 16 -
NC: 2024:KHC:27436 RSA No. 2192 of 2023
15. Per contra, the learned counsel appearing for the respondents would vehemently contend that lease period was expired is not in dispute in terms of the lease agreement of the year 1977, the period of lease is 11 months. The fact that very executant of a lease deed expired and notice was issued in terms of Ex.P4, and though it is by one of the daughter of the said Nagendrappa, the same is issued on behalf of all. It is also contend that though notice was issued by one of the daughter, suit was filed by all the legal heirs of Nagendrappa. The counsel submits that for having paid the rent also, not furnished the detail with regard to the payment of rent. The counsel also would vehemently contend that they are the co-owners is not disputed.
16. The counsel also in support of his arguments relied upon the judgment of the Apex Court with regard to one co- owner can maintain a suit for eviction reported in AIR 2005 SC 2857 in the case of PRAMOD KUMAR JAISWAL AND OTHERS vs BIBI HUSN BANO AND OTHERS and relied upon paragraphs 35 and 36 wherein discussed with regard to Section 111(d) of the Transfer of Property Act and held that a
- 17 -
NC: 2024:KHC:27436 RSA No. 2192 of 2023 plan and grammatical interpretation of Section 111(d) of the Transfer of Property Act leaves to room for doubt that unless the interests of the lessee and that of the lessor in the whole of the property leased, become vested at the same time in one person in the same right, a determination of the lease cannot take place.
17. The counsel also relied upon the judgment reported in AIR 2016 SC 609 in the case of SMT. KASTHURI RADHAKRISHAN vs M CHINNIYAN wherein it is held that it is not necessary to implead all the co-owners in the eviction petition and also held that in view of the foregoing discussion, we cannot concur with the finding of the High Court and while reversing the finding hold that the eviction petition cannot be dismissed on the ground of non-joinder of Smt. R Kanjana - the daughter of late Radhakrishnan and it held maintainable.
18. The counsel also relied upon the judgment reported in AIR 2018 SC 682 in the case of KANAKLATA DAS vs NABA KUMAR DAS and relied upon paragraphs 11 to 27 wherein the Apex Court held that there are some well-settled principles of law on the question involved in this appeal, which
- 18 -
NC: 2024:KHC:27436 RSA No. 2192 of 2023 need to be taken into consideration while deciding the question arose in this appeal. In an eviction suit filed by the plaintiff (landlord) against the defendant (tenant) under the State Rent Act, the landlord and tenant are the only necessary parties.
19. The counsel also relied upon the judgment reported in AIR ONLINE 2022 SC 1367 in the case of K M MANJUNATH vs ERAPPA G DEAD THROUGH LRS and brought to notice of this Court that on determination of lease by efflux of time no further termination of tenancy by issuing a statutory notice to bring termination of lease already terminated was necessary and brought to notice of this Court paragraphs, 4, 9, 10, 11 and 12 regarding discussion made with regard to no notice for termination of tenancy is required after efflux of time.
20. The counsel also relied upon the judgment reported in AIR 2009 SC 2735 in the case of RAMDAS vs SITABAI AND OTEHRS wherein discussion was made with regard to Section 54 of the Transfer of Property Act, with regard to purchase of undivided share of co-sharer, right of purchase to claim possession. A purchaser cannot have a better title than
- 19 -
NC: 2024:KHC:27436 RSA No. 2192 of 2023 what vender had. An undivided share of co-sharer may be a subject matter of sale, but possession cannot be handed over to the vendee unless the property is partitioned by metes and bounds amicably and through mutual settlement or by a decree of the Court.
21. The counsel for the respondents referring these judgments would vehemently contend that even if any sale deed are executed by one of the son of Nagendrappa that will not create any right unless the possession is taken in accordance with law.
22. Having heard the learned counsel appearing for the respective parties and also the principles laid down in the judgments this Court has to analyse the material available on record. Having considered the main arguments of the appellant counsel is that there is voluminous documents for having paid the rent. It is important to note that in the written statement itself the tenant has taken the contention that rents are paid and details of rents are given in the written statement itself and the same is also extracted by the Trial Court in paragraph 6 for having deposited the rent in term of the order passed in HRC
- 20 -
NC: 2024:KHC:27436 RSA No. 2192 of 2023 No.29/1982 and also the tax paid by the defendant in respect of the suit schedule property. It is not in dispute that sale agreement was also executed in the year 2008 and consequently sale deed also executed by one of the heir of Nagendrappa that is during the pendency of the suit of the year 2015 relying upon the earlier agreement of 2008.
23. It is also important to note that tenant also not disputes the fact that there was an order and direction given by the High Court of Karnataka in R.F.A.No.809/2002 and also categorically contend that a direction was given to collect the rent and the same has not been disputed. Having taken note of the said fact into consideration, it is not in dispute that there was an agreement between the Nagendrappa and the tenant in terms Ex.P3 and the same is also for a period of 11 months. It is the contention that tenant that rents are paid. It is not in dispute that notice was given in the year 2010 before filing the suit and same is also given by the Plaintiff No.1 and same is also served on the tenant. The main contention of the counsel that there is no proper termination. It is also important to note that having perused the document of Ex.P4 it discloses that the notice issued by the daughter- Kantha wherein specifically
- 21 -
NC: 2024:KHC:27436 RSA No. 2192 of 2023 stated that the defendant is a tenant and also settlement was recorded in R.F.A.Nos.809/2002 and 910/2002 before the High Court of Karnataka and also mentioned with regard to the HRC field by the defendant and permitting the defendant to deposit the rent. But very contention that with regard to the depositing of rent is concerned, no intimation was given. Also specifically stated that even such any rent has been deposited, same has to be communicated to the plaintiff and bounden duty of the defendant to give notice with regard to deposit to the plaintiff. But the fact that notice was issued is not in dispute before filing the suit and the same is by the one of the co-owner is also not in dispute.
24. It is also important to note that on perusal of suit filed by the plaintiffs, all the daughters of said Nagendrappa joined in filing the suit except the said Ramachandra and he was not a party to the suit. No doubt, in the very notice itself stated that permission was given to deposit the rent but the defendant has not placed any material before the Court to show that he has deposited the rent with the notice to the plaintiffs though he has specifically contended in the written statement that he has deposited the rent. The main contention of the
- 22 -
NC: 2024:KHC:27436 RSA No. 2192 of 2023 appellant that one co-owner cannot maintain a suit for eviction and in support of his contention, relied upon several judgments of different High Courts and also the Apex Court.
25. This Court would like to refer the judgment of Apex Court reported in (1976) 4 SCC 184 in the case of SRI RAM PASRICHA vs JAGANNATH AND OTHER wherein the Apex Court held that co-owner is as much an owner under Section 13(1)(f) of W.B. Premises Tenancy Act, 1956 and can succeed without impleading all the other co-owners, not necessary to be an absolute owner. This Court also relied upon the judgment in CIVIL REVISION PETITION No.183/2014 dated 08.07.2014 relying upon the very same judgment held that so far as extension of time where the building is fetching Rs.1,000/- hitherto from the last thirty years it is opined at least during the extended period, as the landlord even as a co- owner is entitled for an order of eviction.
26. This Court also relied upon the judgment of Allahabad High Court reported in S.C.C. Revision No.23/2023 between AMARNATH GUPTA vs SMT. USHA SHARMA dated 05.05.2023 and also relied upon the
- 23 -
NC: 2024:KHC:27436 RSA No. 2192 of 2023 judgment of Delhi High Court reported in 2023 SCC ONLINE DEL 110 in the case of DHARAM VEER GOEL vs RENU JAIN AND ANOTHER wherein the judgment in the case of In India Umbrella Manufacturing Co. vs Bhagabandel Agarwalla (Dead) by L.R.s reported in (2004) 3 SCC 178 : AIR 2004 SC 1321 was referred wherein the Supreme Court observed that one of the co-owners can file a suit for eviction of a tenant in the property generally owned by the co-owners and this principle was based on 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. In the said judgment, Ram Pasricha's case and Dhannalal's case were referred wherein it is held that a co- owner filing a suit for eviction does so on his own behalf and in his own right and as an agent of other co-owners. The consent of other co-owners is assumed to be taken unless, it is shown that other co-owners were not agreeable to eject the tenant and the suit was filed in disagreement. In the case of KANTA GOEL vs B P PATHAK AND OTHERS reported in (1977) 2
- 24 -
NC: 2024:KHC:27436 RSA No. 2192 of 2023 SCC 814, the Apex Court held that co-owners need not join in eviction proceedings initiated by one of them. In the case of OM PRAKASH AND ANOTHER vs MISHRI LAL (DEAD) REP. BY HIS LEGAL REPRESENTATIVE SAVITRI DEVI reported in (2017) 5 SCC 451, the Apex Court discussed with regard to maintaining of eviction petition by joint owners. In this judgment also referred the cases of Raam Pasricha and Dhannalal and held that when the property forming the subject-matter of eviction proceedings is owned by several co- owners, every co-owner owns every part and every bit of the joint property along with others and thus, it cannot be said that he is only a part owner or a fractional owner of the property and that he can alone maintain a suit for eviction of the tenant without joining the other co-owners.
27. Having considered the principles laid down in the judgments referred supra and also the principles laid down in the judgments referred by the respective counsel, it is very clear that from 1976 onwards the Apex Court held that any single co-owner can maintain a suit for eviction even under general law also. When such being the principles laid down by the several Courts as well as the Apex Court throughout up to
- 25 -
NC: 2024:KHC:27436 RSA No. 2192 of 2023 2023, the very contention of the appellant counsel that a single co-owner cannot maintain a suit for eviction cannot be accepted. No doubt, one of the co-owner has executed the sale deed in favour of the tenant and the same was during pendency of the suit i.e., the sale deed of the year 2015 and eviction petition was filed in the year 2011. It is not in dispute that one of the co-owner has issued notice and the same has been accepted and marked as Ex.P4. The very contention of the defendant that rents have been deposited. But in the quit notice itself by one of the co-owner stated that permission was given to deposit the rent in HRC proceedings and bring to the notice to the landlord and same has not done. Hence, both the Courts have not accepted the contention of the defendant. When all these materials available on record before the Court, I do not find any error committed by both the Courts in appreciating both oral and documentary evidence placed on record. No doubt, the very contention of the appellant counsel that invoking of Section 116 in respect of the act of holding over after the expiration of the term does not create a tenancy of any kind and no dispute with regard to the Section 116 of the Transfer of Property Act is concerned. But, the Court has to
- 26 -
NC: 2024:KHC:27436 RSA No. 2192 of 2023 take note of the material available on record i.e., the lease agreement was executed in the year 1977 for a period of only 11 months and thereafter, rent has not been paid and subsequently in the year 2010, by issuing the notice, tenancy was terminated and when such notice has been issued and tenancy was terminated, cannot contend that one of the co- owner cannot issue such notice when the principle relied upon above held that one co-owner can maintain a suit for eviction. Having considered all these materials available on record, I do find any force in the contention of the appellant that both the Courts committed an error in passing such an order. Hence, I do not find any merit to admit the second appeal and frame the substantial questions of law invoking Section 100 of CPC.
28. The counsel for the appellant seeks eight weeks time to vacate the suit schedule premises. Having taken note of the fact that the suit was filed in the year 2011 and almost 13 years has been elapsed and apart from that the tenant is squatting on the property from the year 1977 with the lease which was only for 11 months and the dispute between the properties is from the year 1982 in HRC 29/1982 regarding payment of rent. Hence, I do not find any grounds to grant the
- 27 -
NC: 2024:KHC:27436 RSA No. 2192 of 2023 time as prayed by the counsel for the appellant and accordingly, the said prayer is also rejected.
29. In view of the discussions made above, I pass the following:
ORDER The regular second appeal is dismissed. In view of dismissal of the main appeal, I.A. if any, does not survive for consideration and the same stands disposed of.
Sd/-
JUDGE SN