Saturday, 13 July 2019

Whether eviction suit filed by one Co-owner against tenant is maintainable if other co-owner objects for institution of said suit?

 What would
be the position if a co-owner objects, as in a
present case, is the question that calls for an
answer in the present petitions.
The closest decision on the point is in the
case of India Umbrella Manufacturing Co. And Others
Vs. Bhagabandei Agarwalla (Dead) by LRs. Savitri
Agarwalla(Smt) And Others (2004) 3 SCC 178
, which, however, does not
answer the question fully as the objection of the
co-owner in India Umbrella (supra) was in the course
of the trial of the suit and in a situation where the
suit property had changed hands.
The concept of co-ownership of immoveable
property need to hardly detain the Court. Every
co-owner has ownership of the entire property which
in absence of any partition must be understood to
extend to every inch of the property.
The very concept of co-ownership, in the
absence of any partition, would militate against the
maintainability of the suit for eviction against a
tenant, where the tenant is admittedly in possession

of the property which is owned by the co-owner who
objects to the eviction.
The decision of Patna High Court in Sharfuddin
and Others vs. Bibi Khatija and Another  AIR 1988 Patna 58
 has been
cited by Shri C.A. Sundaram, learned senior counsel,
to persuade the Court that the view expressed therein
may serve as a foundation for laying down the law
upholding the maintainability of a suit filed in a
situation where a co-owner does not consent and, in
fact, objects to the decree of eviction sought by the
other co-owner. It is contended that such a view
would be a reasonable and logical extension of the
law laid down by this Court with regard to
maintainability of suit filed by a co-owner, where no
objection is raised by another co-owner.
Having read and considered the judgment of the
full Bench of the Patna High Court in Sharfuddin
(supra), we are unable to agree with the views
expressed therein. The Patna High Court seems to
have taken into account the power of veto which would
be vested in a co-owner if a suit for eviction to
which he objects is held to be not maintainable. The
issue with regard to partition which is an option
open to the co-owners who seek eviction was sought to

be answered by the High Court by holding the
aforesaid remedy to be cumbersome. When the law
provides a remedy which the aggrieved party can avail
of, the same cannot, in our considered view, be
ignored only on the ground that asking the parties to
avail of the said remedy would be relegating them to
another round of litigation.
For the aforesaid reasons, we are inclined to
take the view that the decision rendered by the High
Court in first appeal is correct. We, therefore,
affirm the said decision and dismiss these petitions
for special leave to appeal against the order of the
High Court.

S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (C) No(s). 9616-9617/2015

MANGAL BUILDERS & ENTERPRISES LIMITED  Vs
WILLIAMSON MAGOR & COMPANY LTD. & ANR 

Date : 06/04/2017 
CORAM :
HON'BLE MR. JUSTICE RANJAN GOGOI
HON'BLE MR. JUSTICE NAVIN SINHA


UPON hearing the counsel the Court made the following
O R D E R
In view of the elaborate arguments that have
been advanced at the Bar we deem it proper to support

our conclusions, which is adverse to the petitioners,
with our reasons therefor,
The petitioners are two out of three co-owners
who had instituted a suit for eviction of the
respondent No.1-tenant. The third co-owner
(Respondent No.2 hererin), who is the defendant No.2
in the suit, in his written statement, objected to
the eviction and explicitly stated that the suit is
without its consent. The trial Court while
considering the application under Order VII Rule 11
of the Code of Civil Procedure filed by the defendant
No.2 thought it proper to hold that the objection
raised with regard to maintainability should be
decided in the course of the trial of the suit.
In appeal, the High Court took a different
view holding the suit to be not maintainable. Hence,
these petitions for special leave to appeal to
challenge the said order.
We have heard the learned counsels for the
parties.
The issue of maintainability of a suit in the
facts noticed above apparently has not fallen for
consideration before this Court. What has been
decided and it will not be necessary to refer to the

long line of cases on the point is with regard to the
maintainability of a suit filed by a co-owner in the
absence of any objection of another co-owner(s). Such
a suit has been held to be maintainable. What would
be the position if a co-owner objects, as in a
present case, is the question that calls for an
answer in the present petitions.
The closest decision on the point is in the
case of India Umbrella Manufacturing Co. And Others
Vs. Bhagabandei Agarwalla (Dead) by LRs. Savitri
Agarwalla(Smt) And Others (2004) 3 SCC 178
, which, however, does not
answer the question fully as the objection of the
co-owner in India Umbrella (supra) was in the course
of the trial of the suit and in a situation where the
suit property had changed hands.
The concept of co-ownership of immoveable
property need to hardly detain the Court. Every
co-owner has ownership of the entire property which
in absence of any partition must be understood to
extend to every inch of the property.
The very concept of co-ownership, in the
absence of any partition, would militate against the
maintainability of the suit for eviction against a
tenant, where the tenant is admittedly in possession

of the property which is owned by the co-owner who
objects to the eviction.
The decision of Patna High Court in Sharfuddin
and Others vs. Bibi Khatija and Another  AIR 1988 Patna 58
 has been
cited by Shri C.A. Sundaram, learned senior counsel,
to persuade the Court that the view expressed therein
may serve as a foundation for laying down the law
upholding the maintainability of a suit filed in a
situation where a co-owner does not consent and, in
fact, objects to the decree of eviction sought by the
other co-owner. It is contended that such a view
would be a reasonable and logical extension of the
law laid down by this Court with regard to
maintainability of suit filed by a co-owner, where no
objection is raised by another co-owner.
Having read and considered the judgment of the
full Bench of the Patna High Court in Sharfuddin
(supra), we are unable to agree with the views
expressed therein. The Patna High Court seems to
have taken into account the power of veto which would
be vested in a co-owner if a suit for eviction to
which he objects is held to be not maintainable. The
issue with regard to partition which is an option
open to the co-owners who seek eviction was sought to

be answered by the High Court by holding the
aforesaid remedy to be cumbersome. When the law
provides a remedy which the aggrieved party can avail
of, the same cannot, in our considered view, be
ignored only on the ground that asking the parties to
avail of the said remedy would be relegating them to
another round of litigation.
For the aforesaid reasons, we are inclined to
take the view that the decision rendered by the High
Court in first appeal is correct. We, therefore,
affirm the said decision and dismiss these petitions
for special leave to appeal against the order of the
High Court.
(Neetu Khajuria)
Court Master
(Asha Soni)
Court Master
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