Thursday, 4 July 2019

Whether other co-owner of tenanted premises is necessary party in eviction suit filed by one co-owner?

 As regards the relevance of the issue of title of the landlord in an eviction suit under rent laws it is fairly well settled that the impleadment of co-owner/co-sharer to the proceedings is not essential as eviction proceedings can normally be decided on merits in absence of such co-owner/co-sharer. In an eviction suit filed by the landlord, only landlord and tenant are necessary parties and in view thereof title of landlord in an eviction suit is not relevant. If the landlord fails to prove his title but proves relationship of landlord and tenant, and proves existence of any ground pleaded for eviction then his suit would succeed. On the other hand, if the landlord proves his title but fails to prove relationship of landlord and tenant, then his suit would fail.

IN THE HIGH COURT OF ALLAHABAD

Matters Under Article 227 No. 3406 of 2019

Decided On: 09.05.2019

Shahnaj Begum Vs.  Taj Mohammad and Ors.

Hon'ble Judges/Coram:
Dr. Yogendra Kumar Srivastava, J.

Citation:2019 (134) ALR 800.


1. Heard Sri Ashish Kumar Singh, learned counsel for the petitioner and Sri Pankaj Agarwal, learned counsel for the respondent no. 1.

2. The present petition has been filed with a prayer to set aside the order dated 28.08.2018 passed by the Judge, Small Causes Court, Saharanpur in SCC Suit No. 30 of 2009 (Taj Mohammad vs. Masqoor Ali) whereby the trial court rejected the application filed by the petitioner for impleadment under Order 1 Rule 10 C.P.C. The petitioner also seeks to challenge the order dated 14.03.2019 passed by the District Judge, Saharanpur in SCC Revision No. 40 of 2018, whereby the order passed by the trial court has been affirmed.

3. The property in question is a shop bearing Municipal No. 11/7882 situate at Mohalla Pulkambohan, Mohammad Ali Complex, Taj Market, Saharanpur. A suit for arrears of rent and ejectment was filed by Respondent No. 1 Taj Mohammad against Respondent No. 2, Masqoor Ali who happens to be the husband of the petitioner.

4. The contention of the learned counsel for the petitioner is that during the pendency of the SCC Suit, the property in question was purchased by the petitioner vide registered sale deed dated 27.10.2010. It is also submitted that at the time when the property was purchased two other suits being Original Suit No. 812 of 2003 and Original Suit No. 667 of 2010 were also pending; subsequently both the suits were dismissed.

5. Counsel for the petitioner does not dispute the fact that the defendant, who happens to be the husband, has already filed his written statement admitting his status as tenant.

6. The trial court has rejected the application for impleadment on the ground that in a suit for eviction where relationship between landlord and tenant has been admitted by the parties, any application raising a question of title could not be gone into. Taking into consideration the fact that the suit is being contested by the defendant who happens to be the husband of the petitioner herein and that the relationship of landlord-tenant had been admitted by the parties, the revisional court has held that there was no error in the order passed by the trial court rejecting the application for impleadment.

7. Learned counsel appearing for the respondent no. 1 has supported the orders passed by the courts below and has submitted that the impleadment application filed by the petitioner, who is the wife of the defendant-tenant, has rightly been rejected.

8. Reliance has been placed upon a judgment in the case of Kanaklata Das and others Vs. Naba Kumar Das and others, MANU/SC/0041/2018 : (2018) 2 SCC 352 for the proposition that a third person claiming title cannot get his rights adjudicated in eviction proceedings.

9. As regards the relevance of the issue of title of the landlord in an eviction suit under rent laws it is fairly well settled that the impleadment of co-owner/co-sharer to the proceedings is not essential as eviction proceedings can normally be decided on merits in absence of such co-owner/co-sharer. In an eviction suit filed by the landlord, only landlord and tenant are necessary parties and in view thereof title of landlord in an eviction suit is not relevant. If the landlord fails to prove his title but proves relationship of landlord and tenant, and proves existence of any ground pleaded for eviction then his suit would succeed. On the other hand, if the landlord proves his title but fails to prove relationship of landlord and tenant, then his suit would fail.

10. Moreover, the plaintiff in the proceedings, being dominus litis, cannot be compelled to implead any third party to proceedings unless that third party proves that he is necessary party and without his presence the suit cannot be proceeded with or can be decided effectively.

11. In this context an application for impleadment by a third party asserting right of owner-ship in the suit premises, is liable to be rejected for the reason that such person would neither be a necessary nor proper party to eviction proceedings, and in his absence the suit can be decreed or dismissed on merits. The questions of title or owner-ship can neither be decided nor can be made subject matter of determination in eviction proceedings.

12. In the aforementioned case of Kanaklata Das and others (supra), the general principles relating to parties, pleadings and proof in an eviction suit under rent laws, particularly in context of co-owned property, have been summarized. The observations made in the case of Kanaklata Das (supra) in this regard are as follows:-

11. There are some well-settled principles of law on the question involved in this appeal, which need to be taken into consideration while deciding the question which arose in this appeal. These principles are mentioned infra:

11.1. First, 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. In other words, in a tenancy suit, only two persons are necessary parties for the decision of the suit, namely, the landlord and the tenant.

11.2. Second, the landlord (plaintiff) in such suit is required to plead and prove only two things to enable him to claim a decree for eviction against his tenant from the tenanted suit premises. First, there exists a relationship of the landlord and tenant between the plaintiff and the defendant and second, the ground(s) on which the plaintiff landlord has sought defendant tenant's eviction under the Rent Act exists. When these two things are proved, the eviction suit succeeds.

11.3. Third, the question of title to the suit premises is not germane for the decision of the eviction suit. The reason being, if the landlord fails to prove his title to the suit premises but proves the existence of relationship of the landlord and tenant in relation to the suit premises and further proves existence of any ground on which the eviction is sought under the Tenancy Act, the eviction suit succeeds. Conversely, if the landlord proves his title to the suit premises but fails to prove the existence of relationship of the landlord and tenant in relation to the suit premises, the eviction suit fails. (See Ranbir Singh v. Asharfi Lal [Ranbir Singh v. Asharfi Lal, MANU/SC/0829/1995 : (1995) 6 SCC 580].)

11.4. Fourth, the plaintiff being a dominus litis cannot be compelled to make any third person a party to the suit, be that a plaintiff or the defendant, against his wish unless such person is able to prove that he is a necessary party to the suit and without his presence, the suit cannot proceed and nor can be decided effectively. In other words, no person can compel the plaintiff to allow such person to become the co-plaintiff or defendant in the suit. It is more so when such person is unable to show as to how he is a necessary or proper party to the suit and how without his presence, the suit can neither proceed and nor it can be decided or how his presence is necessary for the effective decision of the suit.(See Ruma Chakraborty v. Sudha Rani Banerjee [Ruma Chakraborty v. Sudha Rani Banerjee, MANU/SC/0919/2005 : (2005) 8 SCC 140].)

11.5. Fifth, a necessary party is one without whom, no order can be made effectively, a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding. (See Udit Narain Singh Malpaharia v. Board of Revenue[Udit Narain Singh Malpaharia v. Board of Revenue, MANU/SC/0045/1962 : AIR 1963 SC 786].)

11.6. Sixth, if there are co-owners or co-landlords of the suit premises then any co-owner or co-landlord can file a suit for eviction against the tenant. In other words, it is not necessary that all the owners/landlords should join in filing the eviction suit against the tenant. (See Kasthuri Radhakrishnan v. M. Chinniyan [Kasthuri Radhakrishnan v. M. Chinniyan, MANU/SC/0075/2016 : (2016) 3 SCC 296: (2016) 2 SCC (Civ) 331].)

12. Keeping in mind the aforementioned well-settled principles of law and on examining the legality of the impugned order, we find that the impugned order is not legally sustainable and hence deserves to be set aside.

13. In our considered opinion, Respondent 1, who claims to be the co-sharer or/and co-owner with the plaintiff-appellants herein of the suit property is neither a necessary and nor a proper party in the eviction suit of the appellants against Respondents 2 to 5. In other words, such eviction suit can be decreed or dismissed on merits even without the impleadment of Respondent 1.

14. In the eviction suit, the question of title or the extent of the shares held by the appellants and Respondent 1 against each other in the suit premises cannot be decided and nor can be made the subject-matter for its determination.

15. The reason being that this is not a suit between the appellant-plaintiffs and Respondent 1 where their inter se rights relating to the suit premises can be gone into but rather is an ejectment suit filed by the appellants against Respondents 2 to 5 for their eviction from the suit premises.

16. Therefore, the lis in the suit is between the appellants on the one hand and Respondents 2 to 5 on the other hand and the decision in the suit would depend upon the question as to whether there exists any relationship of landlord and tenant between the appellants and Respondents 2 to 5 in relation to the suit premises and, if so, whether the grounds pleaded in the plaint for claiming eviction of Respondents 2 to 5 are established or not. For deciding these two main questions, the presence of Respondent 1 is not necessary.

17. For these reasons, we are of the considered opinion that Respondent 1 is neither a necessary and nor a proper party in the suit.

13. In the facts of the present case the application seeking impleadment having been filed asserting rights of owner-ship and title, the courts below have rightly rejected the same following the well settled proposition of law that questions of title and owner-ship cannot be gone into while deciding an eviction suit.

14. This Court may also take notice of the fact that the power of superintendence conferred under Article 227, is to be exercised most sparingly and within the parameters which have been summarized in the case of Shalini Shyam Shetty and another Vs. Rajendra Shankar Patil MANU/SC/0508/2010: (2010) 8 SCC 329, and also in the case of Radhey Shyam and another Vs. Chhabi Nath and others MANU/SC/0200/2015 : 2015 (5) SCC 423.

15. No material error or irregularity has been pointed out in the order passed by the courts below so as to warrant interference in exercising of under Article 227 of the Constitution of India.

16. Petition lacks merit and is accordingly dismissed.


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