Whether a tenant can deny the title of the landlord if the landlord has constructed a tenanted structure on leasehold land of government?

1)Tenant has contended that the landlord was not the 'owner' of the subject premises, since it is leasehold property, with the Delhi Development Authority as the owner/lessor; and the landlord was only a 'co-lessee' under the DDA alongwith one Shri Prem Nath Ohri;

2)In view of the decision of the Supreme Court in Shanti Sharma (supra), all that the law requires is that the landlord should hold a premises in a capacity of something more than that of a tenant and proof of title beyond that point is not required. In the present case, as per the tenant's own allegations, the landlord holds the land on which the subject premises is constructed on long lease granted by the DDA. The landlord is therefore owner of leasehold rights in the land comprised in the subject premises. For purposes of section 14(1)(e) of the DRC Act, 'ownership' is not meant only to be freehold and absolute ownership of property but includes rights in the property that are more than that of a tenant, regardless of other imperfections in title. Yet again therefore, no trial is called for on this point.

3) Though it is the tenant's allegation that the landlord was only a co-lessee of the subject premises under the DDA along with one Shri Prem Nath Ohri, the fact that only one co-lessee had filed the eviction petition is no bar to its maintainability. This issue is no longer res integra and it stands settled by several decisions of the Supreme Court that even one of the co-owners can, alone and in his own right, file a proceeding for ejectment of a tenant; and a tenant cannot question the maintainability of the proceedings on this score. (cf. Kasthuri Radhakrishnan & Ors. vs. M. Chinniyan & Anr. MANU/SC/0075/2016 : (2016) 3 SCC 296 para 29).

IN THE HIGH COURT OF DELHI

RC. Rev. 269/2018 and CM Appl. No. 24045/2018

Decided On: 09.07.2020

Gaffar Ahmad  Vs.   Shiv Kumar Ohri

Hon'ble Judges/Coram:

Anup Jairam Bhambhani, J.

Citation: MANU/DE/1361/2020

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Whether third person claiming title can get his rights adjudicated in eviction proceedings?

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 arose in this appeal. These principles are mentioned infra.

12. 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.

13. 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.

14. 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's-tenant's eviction under the Rent Act exists. When these two things are proved, eviction suit succeeds.

15. 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.

16. 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-Dr. Ranbir Singh v. Asharfi Lal, MANU/SC/0829/1995 : 1995(6) SCC 580).

17. 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.

18. 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 and Anr., MANU/SC/0919/2005 : 2005(8) SCC 140)

19. 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. Additional Member Board of Revenue, Bihar and Anr. MANU/SC/0045/1962 : AIR 1963 786)

20. 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 and Ors. v. M. Chinniyan and Anr., MANU/SC/0075/2016 : 2016(3) SCC 296)

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 3018 of 2008

Decided On: 25.01.2018

Kanaklata Das Vs. Naba Kumar Das 

Hon'ble Judges/Coram:

R.K. Agrawal and Abhay Manohar Sapre, JJ.

Citation:  (2018) 2 SCC 352

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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.

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To what extent issue of title is relevant in tenancy court ?

It may be pointed out that it is well settled law that the question of title of the property is not germane for decision of the eviction suit. In a case where a plaintiff institutes a suit for eviction of his tenant based on the relationship of the landlord and tenant, the scope of the suit is very much limited in which a question of title cannot be gone into because the suit of the plaintiff would be dismissed even if he succeeds in proving his title but fails to establish the privity of contract of tenancy. In a suit for eviction based on such relationship the Court has only to decide whether the defendant is the tenant of the plaintiff or not, though the question of title if disputed, may incidentally be gone into, in connection with the primary question for determining the main question about the relationship between the litigating parties. In L.I.C. v. India Automobiles & Co. MANU/SC/0199/1991 : [1990]3SCR545 this Court had an occasion to deal with similar controversy. In the said decision this Court observed that in a suit for eviction between the landlord and tenant, the Court will take only a prima facie decision on the collateral issue as to whether the applicant was landlord. If the Court finds existence of relationship of landlord and tenant between the parties, it will have to pass a decree in accordance with law. It has been further observed that all that the Court has to do is to satisfy itself that the person seeking eviction is a landlord, who has prima facie right to receive the rent of the property in question. In order to decide whether denial of landlord's title by the tenant is bonafide the Court may have to go into tenant's contention on the issue but the Court is not to decide the question of title finally as the Court has to see whether the tenant's denial of title of the landlord is bonafide in the circumstances of the case.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 7151 of 1993

Decided On: 21.09.1995

 Ranbir Singh  Vs. Asharfi Lal

Hon'ble Judges/Coram:

Kuldip Singh and Faizanuddin, JJ.

Citation: (1995) 6 SCC 580

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How landlord should prove his title in eviction suit against tenant?

 It is a settled principle of law laid down by this Court that in an eviction suit filed by the landlord against the tenant under the Rent Laws, when the issue of title over the tenanted premises is raised, the landlord is not expected to prove his title like what he is required to prove in a title suit.

46. In other words, the burden of proving the ownership in an eviction suit is not the same like a title suit. (See Sheela and Ors. v. Firm Prahlad Rai Prem Prakash MANU/SC/0150/2002 : 2002 (3) SCC 375, Para 10 at page 383 and also Boorugu Mahadev & Sons and Anr. v. Sirigiri Narasing Rao and Ors. MANU/SC/0044/2016 : 2016 (3) SCC 343, Para 18 at page 349).

47. Similarly, the law relating to derivative title to the landlord and when the tenant challenges it during subsistence of his tenancy in relation to the demised property is also fairly well settled. Though by virtue of Section 116 of the Evidence Act, the tenant is estopped from challenging the title of his landlord, yet the tenant is entitled to challenge the derivative title of an assignee of the original landlord of the demised property in an action brought by the assignee against the tenant for his eviction under the Rent laws. However, this right of a tenant is subject to one caveat that the tenant has not attorned to the assignee. If the tenant pays rent to the assignee or otherwise accepts the assignee's title over the demised property, then it results in creation of the attornment which, in turn, deprives the tenant to challenge the derivative title of the landlord. [See Bismillah De (dead) by Legal Representatives v. Majeed Shah MANU/SC/1557/2016 : 2017 (2) SCC 274 Para 24]

48. It is equally well-settled law with regard to attornment that it does not create any new tenancy but once the factum of attornment is proved then by virtue of such attornment, the old tenancy continues. (See Uppalapati Veera Venkata Satyanarayanaraju and Anr. v. Josyula Hanumayamma and Anr. MANU/SC/0343/1961 : AIR 1967 SC 174).

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 4249 of 2018 (Arising out of S.L.P. (C) No. 27775 of 2017)

Decided On: 20.04.2018

Apollo Zipper India Limited Vs. W. Newman and Co. Ltd.

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Whether attornment of tenancy can be proved by conduct of tenant?

The singular question to be examined in the present case is whether the tenancy was terminated in accordance with the provisions of Section 106 of the Transfer of Property Act. The receipt of notice by the Defendant is admitted in the written statement. The Defendant has not raised any specific objection as to the validity of the notice. An objection as to invalidity or infirmity of notice Under Section 106 of the TP Act should be raised specifically and at the earliest; else it will be deemed to have been waived even if there exists one. It cannot, therefore, be said that the notice in the present case suffered from any infirmity. A copy of the notice was exhibited and proved by the Plaintiff as Ext. P-4.

60. Second, the Respondent by letters dated 13.06.2006, 27.06.2006, 05.07.2006 and 11.07.2006, sent to the Appellant on the question of ownership of the suit premises and payment of rent had expressed their willingness to attorn and continue the tenancy with the Appellant and also offered to pay rent to the Appellant. (See pages 198 & 199 of the SLP Paper Book-order of the Single Judge)

61. Third, the Respondent in their civil suit (No. 1183 of 2012) filed against the Appellant in Paras 15, 17, 18 and relief Clause (e) of the plaint admitted the ownership of the Appellant over the suit premises and went to the extent of seeking the mandatory injunction against the Appellant directing them to accept the monthly rent of the suit premises from the Respondent.

62. In other words, reading of the aforementioned paras in the Respondent's plaint including the relief Clause (e) would go to show that the Respondent was all along willing to accept and indeed actually accepted the ownership of the Appellant over the suit premises and, therefore, sought mandatory injunction against the Appellant to accept them as tenant. The conduct of the Respondent, therefore, disentitles them to now raise a new plea questioning the title of the Appellant over the suit premises and a plea of attornment. Both, in our opinion, are wholly misconceived pleas and, therefore, deserve to be rejected.

63. As mentioned above, the title of the landlord over the tenanted premises in a suit for eviction cannot be examined like a title suit. Similarly, the attornment can be proved by several circumstances including taking into consideration the conduct of the tenant qua landlord.

64. The aforesaid three circumstances, in our opinion, are, therefore, more than sufficient to record a finding that the Appellant was prima facie able to prove their title over the suit premises so also was able to prove the factum of "attornment" made by the Respondent in relation to the suit premises in Appellant's favour thereby entitling the Appellant to determine the contractual tenancy which was devolved upon them by operation of law.

65. In the light of the foregoing discussion, we are unable to agree with the view taken by the Division Bench that there was some dispute or confusion as to who is the owner of the suit premises. In our view, there was neither any dispute and nor confusion and nor any ambiguity over the question of title over the suit premises which needed any elaborate inquiry.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 4249 of 2018 (Arising out of S.L.P. (C) No. 27775 of 2017)

Decided On: 20.04.2018

Apollo Zipper India Limited Vs. W. Newman and Co. Ltd.

Hon'ble Judges/Coram:

R.K. Agrawal and Abhay Manohar Sapre, JJ.

Citation:(2018) 6 SCC 744

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Whether suit is tenable before rent court if there is disclaimer of title by tenant prior to filing of suit?

It is thus every clear, upon the observations of the Supreme Court, that in a situation where a landlord seeks recovery of possession of any premises, the relationship of landlord and tenant is a sine qua non for the attractability of the provisions of Section 28 of the Act. If such a condition is not fulfilled, Section 28 is out of the way and it is open to the owner of the property to recover possession of the premises de hors the provisions of the Bombay Rent Act.

39. On the facts of this case, it will have to be inferred that as a result of the disclaimer, which disclaimer as found by us was much prior to the suit, the tenancy, if any, of defendants 3 and 4 came to an end. At' the time of the suit or even prior thereto there did not exist any relationship of landlord and tenant between the plaintiff and defendants 3 and 4, Defendants 3 and 4 in their written statement categorically took up the position that there never existed any relationship of landlord and tenant between them and the plaintiff. Defendants 3 and 4, on the contrary, claimed the tenancy from defendants 1 and 2, who, having regard to the findings made by us, have been proved to be trespassers on the suit premises. In these circumstances, it will have to be held that the defendants were not entitled to invoke the provisions of the Bombay Rent Act and that the bar of the jurisdiction of the Civil Court postulated by Section 28 of the Bombay Rent Act did not and does not apply to the facts of the case.

IN THE HIGH COURT OF BOMBAY

A.F.O.D. Nos. 267 and 270 of 1969

Decided On: 04.04.1977

 Ratanlal Manikchand Shah Vs. Chanbasappa Sanganbasappa Chincholi and Ors.

Hon'ble Judges/Coram:

D.B. Deshpande and P.R. Mridul, JJ.

Citation:AIR 1978 Bom216,1978 BomCR 483

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Whether tenant can deny title of landlord during continuance of tenancy?

 Further, the original Defendant having accepted Smt. Chameli Devi as his landlady and thereafter continued to pay rent to her son Bhola Nath, the father of the Appellants, in terms of the definition of "landlord" in Section 3(j) of the Act, he during his life time and after his demise, the Respondents are estopped Under Section 116 of the Indian Evidence Act, 1872 to dispute the status of the Appellants as their landlord in a suit for his eviction from the tenanted premises.

34. That a tenant during the continuance of the tenancy is debarred on the doctrine of estoppel from denying the title of his landlord through whom he claims tenancy, as is enshrined in Section 116 of the Indian Evidence Act, 1872, is so well-settled a legal postulation that no decision need be cited to further consolidate the same. This enunciation, amongst others is reiterated by this Court in S. Thangappan v. P. Padmavathy MANU/SC/0531/1999 : (1999) 7 SCC 474 and Bhogadi Kannababu and Ors. v. Vuggina Pydamma and Ors. MANU/SC/2687/2006 : (2006) 5 SCC 532. In any view of the matter, the Appellants, being the son of Bhola Nath, who at all relevant time, was the landlord vis-a-vis the original Defendant and the Respondents in terms of Section 3(j) of the Act, their status as landlords for the purpose of eviction under the Act, could not have been questioned so as to non suit them for want of locus.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 4309 of 2017 (Arising out of SLP (C) No. 17414 of 2015) and Civil Appeal No. 4310 of 2017 (Arising out of SLP (C) No. 20758 of 2015)

Decided On: 21.03.2017

 Om Prakash and Ors.

Vs.

 Mishri Lal (dead) represented by his LR. Savitri Devi and Ors.

Hon'ble Judges/Coram:

Arun Mishra and Amitava Roy, JJ.

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When tenant is not liable to be evicted even if he has denied title of landlord?

Tenancy - Eviction - Denial of landlord's title or disclaimer of tenancy affect adversely and substantially the interest of landlord - To amount to such denial or disclaimer, as would entail forfeiture of tenancy rights and incur the liability to be evicted the tenant should have renounced his character as tenant and in clear and unequivocal terms set up the title of the landlord in himself or in a third party - Tenant bonafide calling upon the landlord to prove his ownership or to putting the landlord to proof of his title so as to protect himself (i.e. the tenant) or to earn a protection made available to him by rent control laws but without disowning his character of possession over the tenancy premises as tenant cannot be said to have denied the title of landlord or disclaimed the tenancy - Such an act of tenant does not attract applicability of Section 12(1)(c) of the M.P. Accommodation Control Act, 1961- Intention of the tenant as culled out from the nature of the plea raised by him, is determinative of its vulnerability.

Tenancy - Eviction - Bonafide requirement - Landlord is required to allege and prove not only that he is a landlord 'but also the owner' of the premises under Section 12(1)(f) of the M.P. Accommodation Control Act, 1961- Burden of proving ownership in a suit between landlord and tenant where the landlord-tenant relationship is either admitted or proved is not so heavy as in a title suit and lesser quantum of proof may suffice than what would be needed in a suit based on title against a person setting up a contending title while disputing the title of plaintiff - Nevertheless pleading and proving ownership in the sense as it carries in rent control laws, is one of the ingredients of the grounds under Section 12(1)(f) of the Act.

IN THE SUPREME COURT OF INDIA

Appeal (civil) 3965 of 1999

Decided On: 04.03.2002

Sheela and Ors. Vs. Firm Prahlad Rai Prem Prakash

Hon'ble Judges/Coram:

R.C. Lahoti and Ruma Pal, JJ.

Citation:(2002) 3 SCC 375

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Whether landlord can initiate eviction proceeding even if he is not entitled to inherit tenanted property?

In the impugned order, the High Court held that it was Pydamma, respondent No. 1, who had inducted the appellants in the properties in question and it was also the finding of the High Court and also the trial court that the appellants continued to pay rent in respect of the properties in question for some period and thereafter stopped payment. On such findings, the High Court held that it was not open to the appellants to deny the title of properties in question of Pydamma in view of Section 116 of the Evidence Act. In the case of Bilas Kunwar v. Desraj Ranjit Singh MANU/PR/0010/1915, the Privy Council observed as follows:

A tenant who has been let into possession cannot deny his landlords title, however, defective it may be, so long as he has not openly restored possession by surrender to his landlord.

(Emphasis Supplied)

This view was also recognized by this Court in Atyam Veerraju and Ors. v. Pechetti Venkanna and Ors. MANU/SC/0349/1965 : [1966]1SCR831 . Similar view has also been expressed in a later decision of this Court in the case of Tej Bhan Madan v. II Additional District Judge and Ors. MANU/SC/0536/1988 : AIR1988SC1413 in which it was held that a tenant was precluded from denying the title of the landlady on the general principles of estoppel between landlord and tenant. It was held that the principle, in its basic foundations, means no more than that under certain circumstances law considers it unjust to allow a person to approbate and reprobate. In our view, Section 116 of the Evidence Act is clearly applicable in the present case, as held by the High Court in the impugned order. The finding of fact of the High Court and the trial court that the appellants were let into possession by Pydamma and that possession was not restored to her by surrender, was based on consideration of material evidence on record, which cannot be disturbed by us. Therefore, in our view, even if respondent No. 1, Pydamma, was not entitled to inherit the properties in question of late Suryanarayana then also she could maintain the application for eviction and obtain a decree/order of eviction on the ground of default and sub-letting under the A.P. Tenancy Act. We keep it on record that the learned Counsel appearing for the appellants did not raise any objection on the findings of the High Court regarding default and sub-letting, before us.

14. In this connection, we may also point out that in an eviction petition filed on the ground of sub-letting and default, the court needs to decide whether relationship of landlord and tenant exists and not the question of title to the properties in question, which may be incidentally gone into, but cannot be decided finally in the eviction proceeding. In this view of the matter and in view of the discussions made herein above, we are of the view that the eviction petition filed by respondent No. 1 was maintainable in law and respondent No. 1 was also entitled to obtain a decree/order of eviction.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 149 of 2004

Decided On: 12.05.2006

Bhogadi Kannababu and Ors.

Vs.

Vuggina Pydamma and Ors.

Hon'ble Judges/Coram:

Dr. Arijit Pasayat and Tarun Chatterjee, JJ.

Citation:(2006) 5 SCC 532

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When landlord can sue on the basis of title?

After considering the various judgments the proposition of

law laid down in paragraph 18 is not of any person dispossessed but

relates only to a landlord dispossessed in respect of the property let

out to the tenant of which the tenant has been dispossessed forcibly

by the third party. Consequently the forcible dispossession is the

essential requirement. Dispossession contemplates the actual

possession either of the landlord himself or of his tenant through

whom he claims or sues.

Mr. Jagtiani would rely upon the following specific part of

paragraph 18 of the judgment which runs thus :

A person is said to have been dispossessed when he has been

deprived of his possession; such deprivation may be of actual

possession or legal possession. Possession in law follows

right to possession. The right to possession, though distinct

from possession, is treated as equivalent to possession itself

for certain purposes.

He would argue that any person dispossessed may be in actual

possession or legal possession and that the Plaintiff is certainly in

legal possession since he has the right to possess. However, the right

to possess must be followed by possession since it is held that the

possession in law follows the right to possession. It may be treated as

equivalent to possession but there must be possession for a Plaintiff to

be dispossessed.

The explanation of the distinction between physical and legal

possession in Halsbury Laws of England set out in paragraph 19 of the

Judgment further shows that the legal possession may exist without

de facto possession. A person may be deemed to be in legal

possession though not having de facto possession. Such is

constructive possession. Consequently it is held in paragraph 21 of

the judgment that dispossession of the tenant is dispossession of the

landlord. If the tenant was forcibly thrown out by a trespasser, the

landlord has the implied right of entry to recover possession. As the

landlord would continue in legal possession through his tenant who is

in actual possession but not contrary to his tenant who was in

possession. Hence if the tenant is in physical possession the landlord

retains possession through him.

Consequently one of them must be in actual physical possession

and must be forcibly dispossessed.

If a landlord is in such constructive possession and claims

through the tenant, he can certainly sue U/s.6 because his tenant is in

possession and has been wrongfully, illegally and forcibly

dispossessed without his consent. If not, the landlord himself must be

in possession and must be wrongfully, illegally and forcibly

dispossessed without his consent.

53. In this case the landlord's right is certainly impinged by the

claim of the Defendants. Such a claim may be wholly false, frivolous,

misconceived, malicious and even vexatious. The Plaintiff as the

landlord would certainly have right to recover the possession but only

by following due legal process. He cannot claim to be in possession

merely because his last statutory tenant has expired without any act

on his part in taking possession of the suit flat after her death and

putting up a lock thereon. This the landlord can do by suing on title.

That would be the action on trespass such as this case is. That would

be for recovery of possession from the Defendants as trespassers.

However, that is not an action U/s.6 of the Specific Relief Act; it is an

action for recovery of immovable property on title U/s.5 of the Act as

the person “entitled” to possession of the suit property.

Pvt. Ltd. & Ors., AIR 2013.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

SUIT NO.2955 OF 2010

Shaikh Jaber Abdulah J AI Sabah 

Vs.

Ravindra Mukund Chafe & Anr. 

CORAM : MRS. ROSHAN DALVI, J.

DATE OF PRONOUNCING THE JUDGMENT : 19th December, 2013

Citation;2014(3) ALLMR293 Bom

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Whether one co-owner can file eviction suit against tenant without impleading other co-owners?

The principal question, therefore, is whether the plain- tiff being a co-owner landlord can be said to reasonably require the premises for his own occupation within the expression "if he is the owner" in section 13 ( 1 ) (f). Mr. V.S. Desai reads to us from Salmond on Juris- prudence (13th edition) and relies on the following passage in Chapter 8 (Ownership), paragraph 46 at page 254: "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"

Supreme Court of India

Sriram Pasricha vs Jagannath & Ors on 24 August, 1976

Equivalent citations: 1976 AIR 2335, 1977 SCR (1) 395

A.C. Gupta, P.K. Goswami and Y.V. Chandrachud, JJ.

Indian Evidence Act 1872 Sec. 116--Whether tenant can deny the landlord's title.

West Bengal Premises Tenancy Act 1956--Sec. 13(1)(f)--Whether one of the co-owners can file a suit for eviction without impleading other co-owners--Whether a co- owner, an owner for the purpose of an eviction suit--Stage for raising objection about frame of suit.

HEADNOTE:

The plaintiff respondent is one of the co-owners of the premises which were let out to the appellant tenant. The plaintiff filed a suit for eviction under s. 13(1)(f) of the West Bengal Premises Tenancy Act 1956. The grounds for eviction were the non-payment of the rent and the reasonable requirement of the premises for the landlord. The trial court held that the plaintiff being only a co-sharer cannot be said to be the owner within the meaning of s. 13(1)(f). The trial court, however, held that the plaintiff succeeded in proving the reasonableness of the requirement of the members of the family for whose benefit the premises were held by him and, therefore, granted a decree for eviction. An appeal filed by the appellants failed. In the second appeal filed by the appellants it was contended that al- though reasonable requirement of the premises were estab- lished, the respondent was not entitled to a decree for eviction since he was only a co-sharer and, therefore, not the owner of the premises. The single Judge of the High Court held that it will not be sufficient if the reasonable requirement is of all the members of the family of the co- owners but such owners must again be the landlords who only are entitled to a decree for recovery of the possession under s. 13(1)(f). A Division Bench set aside the decision of the Single Judge on the ground that a co-owner is as much as absolute owner as a sole owner. In appeal by special leave, the appellant contended:

A landlord to be able to evict a tenant under Section 13(1)(f) must be an absolute owner of the premises from which eviction is sought.

Dismissing the appeal,

HELD: The contention of the appellant that the co-sharer plaintiff must be the absolute owner and a co-owner cannot without impleading all the owners of the premises ask for eviction cannot be accepted because the plea pertaining to the domain of the frame of the suit should have been raised at the earliest opportunity and it was not done. Secondly, the relation between the parties being that of landlord and tenant only the landlord could terminate the tenancy and institute the suit for eviction. The tenant in such a suit is estopped from questioning the title of the landlord under s. 116 of the Evidence Act. Under the general law, in a suit between the landlord and tenant, the question of title to the lease property is irrelevant. The plaintiff is one of the co-owners of the premises. The other co-sharers being his mother and married brother who reside in the same prem- ises along with him. Jurisprudentially, it is not correct to say that a co-owner of a property is not an owner. He owns every part 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 when partition takes place. It is, therefore, not possible to accept the submission that the plaintiff who is admitted- ly the landlord and co-owner of the premises is not the owner of the premises within the meaning of s. 13(1)(f). [399 A--C. 401 B & 402 A-B]

 The Judgment of the Court was delivered by GOSWAMI, J.

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