Punjab-Haryana High Court
Hans Raj vs Prem Chand Bansal & Another on 29 August, 2024
Author: Pankaj Jain
Bench: Pankaj Jain
Neutral Citation No:=2024:PHHC:113243 CR-4088-2018 (O&M) & CR-4094-2018 (O&M) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 119 Reserved on : 29.07.2024 Pronounced on : 29.08.2024 1. CR-4088-2018 (O&M) Hans Raj ...... Petitioner versus Prem Chand Bansal (Since Deceased) and another ...... Respondents 2. CR-4094-2018 (O&M) Mahender Pal ...... Petitioner versus Prem Chand Bansal (Since Deceased) and another ...... Respondents CORAM : HON'BLE MR. JUSTICE PANKAJ JAIN Present: Mr. Sumeet Mahajan, Senior Advocate with Mr. Saksham Mahajan, Advocate Mr. Shrey Sachdeva, Advocate for the petitioner in CR-4088-2018. Mr. Prateek Gupta, Advocate for the petitioner in CR-4094-2018. Mr. Amit Jain, Sr. Advocate with Mr. Aryaman Thakur, Advocate for respondent No.1 in both cases. **** PANKAJ JAIN, J. (Oral)
1. These two revisions are directed against order dated
04.05.2018 passed by Appellate Authority under The Haryana Urban
(Control of Rent and Eviction) Act, 1973 whereby eviction has been
ordered from shop as detailed out in the headnote of the eviction petition
(hereinafter referred to as the demises premises).
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2. Landlord filed eviction petition under Section 13 of the 1973
Act claiming that the demised premises was let out by him and his brother
Jagan Nath to respondent No.1 vide rent note dated 01.12.1997 at a
monthly rent of Rs.7,000/-. As per terms and conditions of the rent note,
respondent No.1 was under obligation to enhance monthly rent by 20% on
expiry of every 03 years. At enhanced rent, the monthly rent payable at
the time of filing of the eviction petition was Rs.12016. Tenant was in
arrears of rent since 01.04.2004. The second ground pleaded seeking
eviction was that respondent No.1 had subletted shop in question to
respondent No.2 without written consent and approval of the petitioner.
Respondent No.2 was in exclusive possession of the shop in question and
was independently running business under the name and style of M/s.
Suhag Churi Bhandar. Respondent No.1 was charging rent of demised
premises from respondent No.2 and has thus parted possession of the
demised premises for consideration.
3. Both the respondents contested the petition and filed separate
written statements. Respondent No.1 averred that he has no concern with
the demised premises. He was never tenant in the said shop. It was
further pleaded that respondent No.1 has taken another shop having
ground floor as well as first floor where he is running his shop by the
name of Super Store since 09.12.2017 at a rent of Rs.7,000/- per month.
The said shop was let out by Jagan Nath Bansal. The shop was initially
taken for two months. After his business could not flourish, respondent
No.1 vacated first floor of the said premises but now has again taken first
floor of the same premise on rent w.e.f. 01.04.2006.
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4. Respondent No.2 i.e. sub-tenant filed separate written
statement claiming that it is Jagan Nath Bansal who is the actual landlord
of the shop in question. Jagan Nath Bansal rented out the shop to Raj
Kumar Bansal with authority to sublet the same. Raj Kumar Bansal
further inducted respondent No.2 as a tenant with consent of Jagan Nath
Bansal-landlord.
5. The landlord appeared as PW-2 alongwith Parmod Kumar
who appeared as PW-1. PW-1 deed writer was examined to prove the
execution of rent note dated 01.12.1997. Respondent No.1 i.e. tenant
appeared as RW-2, sub tenant appeared as RW-1, Raj Kumar Bansal
appeared as RW-3 and Jagan Nath appeared as RW-4.
6. Rent Controller dismissed the ejectment petition holding that
the same is not maintainable for want of consent of co-owner Jagan Nath
who supported the case of tenant while appearing as RW-4. Appellate
Authority accepted the appeal preferred by the landlord holding that there
was no requirement of prior consent of co-owner for maintaining the
eviction petition. Jagan Nath the co-owner though appeared as RW-4, but
never objected to the landlord filing the eviction petition. RW-4 Jagan
Nath admitted in his cross-examination that petitioner Prem Chand was
also co-owner of the shop in question. On analyzing evidence on record,
Appellate Authority came to the conclusion that there being no
documentary evidence to prove that Raj Kumar Bansal was inducted as
tenant by Jagan Nath, story projected by the tenant and the sub-tenant
with respect to Hans Ran sub-tenant having been inducted by Raj Kumar
Bansal with the consent of Jagan Nath has been falsely concocted to
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mislead the Court. Thus, Appellate Authority ordered eviction and
directed respondent No.2 to handover the vacant possession in question to
the petitioner. Civil Revision No.4088-2018 is at the behest of sub-
tenant. Civil Revision No.4094-2018 has been filed by tenant.
7. Learned senior counsel appearing for sub-tenant while
assailing the impugned order submits that the Appellate Authority erred in
holding issue with respect to maintainability of the petition in favour of
landlord, despite the fact that co-owner Jagan Nath appeared and
supported the case of sub-tenant. He submits that there is overwhelming
evidence brought on record to prove that Jagan Nath, the co-owner of the
shop inducted Raj Kumar Bansal as a tenant in the demised premises.
Jagan Nath testified before the Rent Controller that the shop was let out
by Raj Kumar Bansal further to Mahender Pal with his approval. Thus,
the question of eviction of petitioner on the ground of subletting does not
arise. He further submits that the whole story put forth by the landlord
crashed to the floor once landlord himself admitted filing of suit for
injunction qua 04 shops adjoining and forming part of the same building.
In the said plaint while describing shop at point D in the headnote, he
himself pleaded that on the eastern side of the same is situated shop of the
landlord on rent with Raj Kumar Bansal. He further refers to the date of
filing of the civil suit i.e. 16.01.2007 and submits that the plaint was
proved on record as Ex.R-1. The same was put to the landlord who
admitted the same. He thus submits that Appellate Authority having erred
on the facts as well as on law, the present revision petition deserves to be
allowed and the eviction order passed against the petitioner in the present
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revision petition deserves to be set aside.
8. Per contra, counsel for respondent-landlord submits that both
co-owners i.e. the original petitioner in the instant lis Prem Chand Bansal
and his brother Jagan Nath Bansal are admittedly co-owners of the
demised premises. They are at lis. Tenant and sub-tenant want to feed on
the dispute between co-owners. He submits that execution of rent note
with respect to the demised premises on 01.12.1997 was fully proved by
Ex.P-1. Signatures thereupon have been admitted by tenant Mahender
Pal. A deliberate attempt has been made by tenant and sub-tenant to
confuse the issue. Appellate Authority has returned correct finding on
facts after appreciating evidence on record. Mahender Pal having admitted
his signatures on the register of petition writer claimed that it was with
respect to rent note executed qua other shop in his possession. However,
the same has been falsified by documents Ex.PW-3/A and Ex.PW-3/B.
The other shop was rented out to Mahender Pal in the year 1990 i.e. much
prior to 01.12.1997 and the said fact was admitted by Mohinder Pal in
reply to the eviction petition filed by him qua that shop.
8A. Learned senior counsel submits that it is evident from record
that co-owner Jagan Nath never objected to filing of the eviction petition
and thus the plea raised by tenants with respect to non-maintainability of
the petition as upheld by the Rent Controller is without any basis. He has
further drawn my attention to the pleadings raised in the present case and
the testimony of landlord PW-2 to submit that so far as issue with respect
to letting out of shop to Prem Chand Bansal and the alleged admission in
the plaint filed in the year 2007 is concerned, the same stands fully
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explained and the same cannot be read against the landlord.
9. I have heard counsel for the parties and have carefully gone
through the records of the case.
10. In order to appreciate the real controversy between the
parties, it will be apt to peruse the pleadings. Landlord pleaded in
eviction petition as under:-
“xx xx xx
3. That the petitioner as well as Shri Jagan Nath are the
landlords-cum-landowners of the shop in question which is
fully mentioned and described in the head note of the plaint and
situated at Tonga Chowk Jind Tehsil and Distt. Jind.
4. That the shop in question was rented out by the petitioner as
well as Shri Jagan Nath to the respondent no.1 on a monthly
rent of Rs.7000/- w.e.f. 1-12-1997. A rent note was also
executed by the respondent no.1 in favour of petitioner as well
as the other co-landlord cum landowner on 9-12-1997. The
original rent note is in possession of the other landlords-cum-
landowner. A entry of the register of deed writer is attached
herewith.
5. That as per terms and conditions of rent note it the was
obligatory on the part of respondent no. 1 that he would
enhance 20% rent of the expiry of every three years and now
the rate of rent is 12016/ uptil 30-11-2009. The said fact 15 also
in respondent no.1 the knowledge of the respondent No.1.
6. That the respondents are liable to be evicted from the shop in
question on the following grounds:
a) That the respondent paid the arrears по. of 1 has
rent not from 1.4.2004 till to date inspite of
many repeated requests and demands made by
the petitioner.
b) That the respondent no. 1 has sub-letted the shop
in question to the respondent no.2 without the
written consent and approval of the petitioner.
Moreover the respondent no.2 is in exclusive
possession of the shop in question. It is further
submitted respondent here that no.2 is now doing
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the business independently under the name and
style of M/s Suhag Churi Bhandar. The
respondent no.1 has no concern, with the said
business as well the shop in question. as
respondent no.1 has The completely withdrawn
his control from the said business. The
respondent no. also charging the rent demised
shop from the of 1 is the respondent no.2 which
he has got no right under the law.”
11. The tenant Mahender Pal in reply to para 4 ibid averred as
under:-
“4. That in reply to para No. 4 of the petition it is submitted
that the petitioner is not the landlord and the answering
respondent has taken on rent the ground floor as well as the first
floor of (another shop known as Super Store since 09.12.1997-
at the monthly rent of Rs. 7,000/- per month for two months
from Jagan Nath Bansal and as his business could first not
flourish as such he vacated the floor of that premises after two
months and now again he has taken the first floor on rent w.e.f.
01.04.2006 of the said premises. It is is specifically stated that
petitioner is not the landlord. The answering respondent has no
concern with the shop in question as the same was not taken by
him on rent rather he is occupying another shop as a tenant
known as Super Store.”
12. The sub-tenant responded in the same lines and pleaded as
under:-
“xx xx xx
4. That in reply to para No. 4 of the petition it is submitted
that the petitioner is not the landlord and the answering
Respondent has taken on rent the ground floor since 01.04.1998
at the monthly rent of Rs.7,000/- per month from Raj Kumar
Bansal with permission from Jagan Nath Bansal landlord.
Mahinder Pal respondent No. 1 has no concern with the said
shop as the shop in question was never rented out to him at any
point of time.”
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13. Landlord filed rejoinder to the written statements filed by
both tenant responding to para 4 as under:-
“4. That the contents of para No. 4 of written statements on
merits are totally wrong, incorrect and hence denied. However,
the contents of para No. 4 of the petition are true, correct and
are reiterated. It is denied that the respondent No. 1 has taken
the ground floor as well as the first floor of another shop known
as Super Store on rent since trying 09.12.1997. The respondent
No.1 is trying to mislead this Hon’ble Court. Another shop
bearing No.5 in the said building was rented out by the
petitioner as well as other co-landlords to respondent No.1 in
the year Feb., 1990. An eviction petition in respect of the shop
No. 5 is still pending against the respondent No. 1. Moreover a
suit for injunction is also pending against the respondent No. 1
and the injunction application filed by the petitioner against
respondent No. 1 in that suit was accepted and appeal against
the acceptance of the injunction application was also dismissed
by the Court of Ld. District Judge Sahib, Jind. It is denied that
the shop known as Super Store was rented out to the respondent
No. 1 alongwith first floor on 9.12.1997. Rather only the ground
floor bearing Shop No. 5 was rented out by the petitioner to the
respondent No.1 in the year Feb., 1990. The first floor of Shop
No. 5 was never rented out by the petitioner to the respondent
No. 1 alongwith the ground floor. Rather the first floor of Shop
No.5 was rented out by the petitioner to the respondent No.1
before April, 2004. It is denied that the rate of rent of the Shop
of Super Store was 7000/- p.m. It is denied that the first floor of
shop No. 5 was vacated by the respondent No.1 after the expiry
of two months of 9.12.1997. When the ground floor as well as
the first floor was never rented out by the petitioner to the
respondent on 9.12.1997. Therefore the question of vacating of
first floor of shop No.5 does not arise at all. The respondent
No.1 be put to a strict proof in this regard. It is denied that the
first floor of shop No.5 was taken by the respondent No.1 on
rent w.e.f. 1.4.2006. The respondent No. 1 be put to a strict
proof in this regard. After subletting the shop in question by the
respondent No.1 to the respondent No.2, the respondent No.1
has no claim concern or interest with the demised premises.”
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14. On the similar lines, rejoinder was filed to the reply filed by
sub-tenant pleading as under:-
“xx xx xx
4. That the contents of No.4 para of the written statements
on merits are totally wrong, incorrect hence and denied.
However, the contents of para No.4 of the petition are true,
correct and are reiterated. It is denied that the petitioner is not
the landlord of the demised premises. It is submitted here that
the shop in question was rented out by the petitioner to
respondent No. 1 on 1.12.1997 vide written rent note dated
9.12.1997. It is denied that the ground floor of the demised
premises was taken on rent by the respondent No.2 on a
monthly rent of Rs.7000/- p.m. from Raj Kumar Bansal. Raj
Kumar Bansal has no claim concern title or interest after
vacating and delivering the possession of the shop in question to
the petitioner. After subletting the shop in question by the
respondent No. 1 to the respondent No.2, respondent No.1 has
no concern with the shop in question. It is denied that the shop
in question was never rented out to respondent No. 1 at any
point of time.”
15. In the present case, exclusive possession of respondent No.2
over the demised premises is admitted. His status as a sub-tenant is also
not in dispute. Prem Chand and Jagan Nath are admittedly co-owners of
property in question. The issue is whether petitioner and Jagan Nath both
inducted respondent No.1 as tenant in shop who further sub-letted the
same to respondent No.2 or respondent No.2 was inducted by Raj Kumar
Bansal who is a tenant under Jagan Nath and claims permission to sub-let
the demised premises? Apart from the aforesaid factual issue, the legal
issue that arises for consideration is:
(i) whether landlord could have maintained the petition
without impleading Jagan Nath and without consent of
Jagan Nath?
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16. Landlord in order to prove his stand claims that Jagan Nath
his brother and co-owner is in possession of the rent note dated
01.12.1997 and has tried to prove execution of the rent note on the
strength of testimony of PW-1 Parmod Kumar vasika navis. Copy of his
register Ex.P-1. The entries at serial No.1025 to 1027 in the register reads
as under:-
Date Sr. No. Name of Nature of Executant document 09.12.1997 1025 Mahender Pal son Rent Note Shop Tanga Chowk Sd/- Mahender Pal. of Gobind Dass, Jind @ Rs.7000/- per r/o Jind month for two months w.e.f. 01.12.1997 09.12.1997 1026 Jagan Nath and Mutual 01.12.1997 That I shall pay Prem Chand, both Agreement enhanced rent of 20% Shop situated at Tanga sons of sh. Bal after every 03 years. Chowk, Jind Mukand, r/o Jind 09.12.1997 1027 Mahender Pal son Pro-note For Rs.1,80,000/- Sd/- Mahender Pal for of Gobind Dass, interest 2% per month Raj Kumar Bansal r/o Jind
17. Rent note was not produced. Prem Chand-the landlord
claimed that the same was in possession of Jagan Nath who was
collecting rent from Mahender Pal acting as his attorney while he was out
of town being in service. Mahender Pal while appearing as RW-2
admitted his signatures on Ex.P-1. He however claimed that the same
was executed with respect to other shop in his possession where he is
running his business under the name and style of Super Store regarding
both the floors. He however feigned ignorance on being asked whether
both floors have been mentioned in Ex.P-1. He further admitted to the
terms as mentioned in the register. Landlord produced eviction petition
Ex.PW-3/A filed by him against Mahender Pal with respect to the other
shop where he is running Super Store and reply filed by Mahender Pal
therein as Ex.PW-3/A. It is evident that in Ex.PW-3/A, Mahender Pal has
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been mentioned as Sheru and there is no dispute to the effect that
Mahender Pal is known as Sheru as well. In the said petition, pleadings
of para No.1 read as under:-
“1. That the petitioner and his brother Jagan Nath
respondent no. 2 are the owners and landlords of the double
storied shop in question ground floor of which was taken on
rent by the respondent no. 1 in February, 1990 @ Rs. 2600/- per
month with a further condition to increase the rent @20% after
every three years. At present the rent of the shop on ground
floor in question is Rs. 7714/- per month. The portion of first
floor was given on rent to the respondent no.1 few years ago
and the present rate of rent of first floor is Rs. 4956/- per month
which is also liable to be increased after every three years @
20%. An opening from inside was made by removing a portion
of roof of ground floor and the respondent no. 1 by temporary
stair case uses the first floor. There are stair cases from out side
also i.e. from the main road side. The total rent of the shop is
12670/- per month w.e.f 01.12.2005 and previous to it the rate
of rent was Rs. 10558/- per month. The rent note was also
executed by the respondent no.1 when the shop was originally
let out in February, 1990 which is in possession of respondent
no. 2 and copy of the same is also in possession of respondent
no.1.”
18. The same was responded by Mahender Pal in the following
terms:-
“That para No. 1 of the petition is replied that shop in question
was taken on rent from Shri Jagan Nath Bansal/landlord and at
present the rate of rent of ground floor is Rs. 7714/- per month
and the first floor was taken on rent w.e.f. 1.4.2006 @Rs.
4956/- per month i.e. total amounting to Rs. 12670/- per month
w.e.f. 1.4.2006 and Sh. Jagan Nath Bansal has been receiving
the rent from the answering respondent against proper receipts
and no amount of rent is due towards the answering
respondent/tenant.”
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19. Thus, it is evident that Mahender Pal never denied that in
double storied shop No.5 where he is running Super Store, he was
continuing as a tenant since February, 1990 and was not inducted on
01.12.1997. Thus, the testimony of Mahender Pal to the effect that
Ex.P-1 relates to double storied shop No.5 wherein he is running super
store stands falsified. Raj Kumar Bansal who appeared as RW-3 and is
one of the vital links in the story projected by sub-tenant also testified
falsely. He claims that Jagan Nath executed agreement in his favour in
the Court but is not in a position to produce copy thereof. Likewise,
Jagan Nath who appeared as RW-4 was also proved to be untruthful with
respect to story projected by sub-tenant. He claims that he executed
agreement in favour of Raj Kumar, but again pleads inability to produce
the same. Both though admitted execution of rent agreement refused to
produce the same. Thus, adverse inference has to be drawn.
20. It is evident that though landlord failed to produce rent note
but he was able to prove that rent note was executed on 09.12.1997 which
has been admitted by tenant Mahender Pal in his testimony. The story put
forth by Mahender Pal regarding the rent note pertaining to shop No.5
stands falsified by documentary evidence on record in form of Ex. PW-
3/A and Ex.PW-3/B. So far as the story put forth by the tenant and sub-
tenant with respect to the land being in possession of Raj Kumar Bansal
as tenant under Jagan Nath and further having been let out to Hans Raj,
the same is not supported by any cogent evidence. Both RW-3 and RW-4
i.e. Raj Kumar Bansal and Jagan Nath though claimed that there is an
agreement with respect to property executed by Jagan Nath in favour of
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Raj Kumar Bansal, but again opted not to produce the same. Thus,
adverse inference has to be drawn qua the same. Moreover from the
testimony of Jagan Nath, it has been proved that the demised premises in
question is a part of double storied building having 05 shops. The whole
building is owned by both brothers. Landlord in the present case. i.e.
Prem Chand Bansal being in service was earlier acting through his
attorney i.e. his brother, Jagan Nath, who was also collecting rent on his
behalf. Reference can be made to the testimony of Jagan Nath himself,
who appeared as RW-4. Now, after power of attorney executed by Prem
Chand in favour of Jagan Nath has been cancelled, co-owner Jagan Nath
is siding with the tenants, though has not objected to filing of the petition.
So far as mentioning of boundary in Ex.R-1 is concerned, the same has
been fully explained by the landlord in the rejoinder filed controverting
the pleadings raised by tenant and sub-tenant. He corroborated the same
in his testimony while appearing as PW-2.
21. The issue with respect to maintainability of the petition has to
be answered in favour of landlord. Trite it is that a co-owner can maintain
eviction petition even in the absence of consent of the co-owner. The
only situation is where there is a cogent objection raised by the co-owner.
In the present case though Jagan Nath appeared as RW-4 to support the
story put forth by tenant and sub-tenant, yet he nowhere objected to the
maintainability of the present petition.
22. Having concluded that Prem Chand Bansal-the original
petitioner in the eviction petition is the landlord who inducted Mahender
Pal-the tenant and Mahender Pal further subletted the demised premises to
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Hans Raj. The next issue that arises is:-
(i) Whether Prem Chand Bansal could have maintained
the eviction petition in the absence of co-owner Jagan
Nath?
23. Section 2(c) of Haryana Urban (Control of Rent and
Eviction) Act, 1973 defines landlord as under:-
“2(c) “landlord” means any person for the time being entitled
to receive rent in respect of any building or rented land
whether on his own account or on behalf, or for the
benefit, of any other person, or as a trustee, guardian,
receiver, executor or administrator for any other
person, and includes a tenant who sublets any building
or rented land in the manner hereinafter provided, and
every person from time to time deriving title under a
landlord;”
24. Thus under the Haryana Rent Act, it is not necessary for the
landlord to be owner of the tenanted premises. The issue regarding
maintainability of eviction petition at the behest of one of the
co-owners/co-landlords came up for consideration before Supreme Court
in the case of Sri Ram Pasricha vs. Jagannath reported as (1976) 4 SCC
178. Dealing with argument against the maintainability of the petition,
Apex Court observed as under:-
“xx xx xx
13. It is strenuously submitted by Mr. Tarkunde that
unless the landlord is also the absolute owner of the
premises, he cannot evict the tenant under section
13(1)(f). Landlord means landlords under the
appropriate General Clauses Act and, therefore, since
there are other co-sharers the plaintiff alone could not
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file the suit for eviction.
14. There are two reasons for our not being able to
accept the above submission. Firstly, the plea pertains
to the domain of the frame of the suit as if the suit is
bad for non-joinder of other plaintiffs. Such a plea
should have been raised, for what it is worth, at the
earliest opportunity. It was not done. Secondly, the
relation be- tween 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 it estopped from questioning the title of the
landlord under section 116 of the Evidence Act. The
tenant cannot deny that the landlord had title to the
premises at the commencement of the tenancy. Under
the general law, in a suit between landlord and tenant
the question of title to the leased property is irrelevant.
It is, therefore, inconceivable to throw out the suit on
account of non-pleading of other co-owners as such.
25. 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).
26. Mr. V.S. Desai reads to us from Salmond on
Jurisprudence (13th Edn.) and relies on the following
passage in Chapter 8 (Ownership), para 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
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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 separate 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”.
27. 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 partition 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. Mr.
Tarkunde also submitted that since the Calcutta High
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Court has held in Yogamaya Pakhira v. Santi Subha
Bose [ILR (1968) 2 Cal70] that a permanent lessee is
not an owner within the meaning of section 13(1)(f) a
co-owner would not be in a better position. We are of
opinion that a co-owner is as much an owner of the
entire property as any sole owner of a property is. We,
however, express no opinion about the case of a
permanent lessee as this point does not arise in this
appeal.”
25. The same principle was reiterated by Supreme Court in the
case of Pal Singh vs. Sunder Singh reported as (1989) 1 SCC 444
observing as under:-
“xx xx xx
10. In Kanta Goel case [(1977) 2 SCC 814] this
Court followed the decision in Shri Ram Pasricha v.
Jagannath [(1976) 4 SCC 184]. This Court left open
the question as to what would happen if some of the
co-owners wanted the tenant to continue contrary to
the relief claimed by the claimant co-owner. Relying
on the two aforesaid decisions in the facts of this case,
in so far as the ratio of the two decisions was
concerned, Mr. Rajinder Sachhar contended that as yet
there is no principle established by this Court that any
one of the co-owners could maintain an action for
eviction. In the instant case, it was contended that it
was on record that a suit had been filed by Smt. Sham
Kaur against the respondent for specific performance
of an agreement to sell a portion of the property and
for direction to him to execute the sale-deed with
respect to a portion of the premises bearing Nos. 2216
to 2222. That suit was decreed by Shri Jaspal Singh,
Additional District Judge, Delhi and Sunder Singh was
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ordered to execute the sale-deed in favour of the co-
owner Smt. Sham Kaur. The High Court however
recorded that the case of the parties was that there was
an appeal against the judgment and decree and the
same was pending and the portion with respect to
which the direction has been given was not the portion
which is in occupation of the tenant and which is the
subject- matter of this eviction petition. It appears that
even according to the decree this portion, i.e., 3 rooms
and the courtyard in question which is the subject-
matter of dispute in the instant case, falls in the share
of Sunder Singh who had filed the eviction petition.
Furthermore, there is no evidence that other co-tenant
the widow, Smt. Sham Kaur or her representatives
wanted the appellant to continue. This in our opinion
falls within the ratio of Kanta Goel v. B.P. Pathak
[(1977) 2 SCC 814] where this Court clearly held that
when the other co-owner did not object to the eviction
one co-owner could maintain an action for eviction
even in the absence of other co-owner. Here also Smt.
Sham Kaur and her heirs did not object to the claim for
eviction made by the respondents herein. In that view
of the matter and in the circumstances of this case, we
are of the opinion that the ratio of the said case will
apply and this suit will be maintainable even in the
absence of all the owners to the eviction proceedings.”
26. Dealing with the same issue, Apex Court in the case of
Dhannalal vs. Kalawatibai reported as (2002) 6 SCC 16 observed as
under:-
“xx xx xx
16. It is well settled by at least three decisions of this
Court, namely, Sri Ram Pasricha vs. Jagannath
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[(1976) 4 SCC 184], Kanta Goel v. B.P. Pathak
[(1977) 2 SCC 814] and Pal Singh v. Sunder Singh
[(1989) 1 SCC 444] that one of the co-owners can
alone and in his own right file a suit for ejectment of
tenant and it is no defence open to tenant to question
the maintainability of the suit on the ground that other
co-owners were not joined as parties to the suit. When
the property forming subject matter of eviction
proceedings is owned by several owners, every co-
owner owns every part and every bit of the joint
property along with others and it cannot be said that he
is only a part owner or a fractional owner of the
property so long as the property has not been
partitioned. He can alone maintain a suit for eviction
of tenant without joining the other co-owners if such
other co-owners do not object. In Sri Ram Pasricha vs.
Jagannath [(1976) 4 SCC 184] reliance was placed by
the tenant on the English rule that if two or more
landlords institute a suit for possession on the ground
that a dwelling house is required for occupation of one
of them as a residence the suit would fail; the
requirement must be of all the landlords. The Court
noted that the English rule was not followed by the
High Courts of Calcutta and Gujarat which High
Courts have respectfully dissented from the rule of
English law. This Court held that a decree could be
passed in favour of the plaintiff though he was not the
absolute and full owner of the premises because he
required the premises for his own use and also
satisfied the requirement of being “if he is the owner”,
the expression as employed by Section 13(1)(f) of
W.B. Premises Tenancy Act, 1956.
17. It follows that a widow, who is a co-owner and
landlady of the premises can in her own right initiate
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proceedings for eviction under Section 24-A(b), as
analysed hereinbefore, without joining other co-
owners/co-landlords as party to the proceedings if they
do not object to the initiation of proceedings by such
landlady, because she is the owner of the property and
requires the tenanted accommodation for the purpose
of continuing or starting the business of any of her
major sons. The major sons though co-owners/co-
landlords may not have been joined as party to the
proceedings but it would not adversely affect the
maintainability of the proceedings. It would also not
make any difference if they are also joined as party to
the proceedings. Their presence in the proceedings is
suggestive of their concurrence with the widow
landlady maintaining the proceedings in her own right.
The presence of such co-landlords, as co-plaintiffs or
co- applicants, as are not classified landlords as
defined in Section 23-J of the Act does not alter the
nature of claim preferred by the widow landlady and
therefore does not take the proceedings out of the
scope of Section 23-A(b). Conversely, the major sons
or any of them suing alone without joining a widow
co-landlord as party to the proceedings may institute a
suit before a Civil Court under Section 12 of the Act
pleading that the non-residential premises were
required bona fide by them or any of them for the
purpose of continuing or starting their own or his own
business as they would be owners thereof and the
requirement will be theirs. It would not make any
material difference if the widow co-landlord was
joined as party to the proceedings either as plaintiff or
as co-applicant because the case pleaded in the plaint
would squarely fall within the ambit of clause (f) sub-
Section (1) of Section 12 of the Act.”
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27. In the case of India Umbrella Mft. Co. vs. Bhagabandei
Agarwalla reported as (2004) 3 SCC 178, Apex Court was dealing with
another offshoot of the same proposition. One of the co-owners withdrew
her consent in the midst. Supreme Court observed as under:-
“xx xx xx
6. Having heard the learned counsel for the parties
we are satisfied that the appeals are liable to be
dismissed. It is well settled that one of the co- owners
can file a suit for eviction of a tenant in the property
generally owned by the co-owners. (See: Sri Ram
Pasricha vs. Jagannath [(1976) 4 SCC 184] and
Dhannalal v. Kalawatibai & Ors. [(2002) 6 SCC 16],
SCC para 25). This principle is based on the 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 and the suit was filed in spite of
their disagreement. In the present case, the suit was
filed by both the co-owners. One of the co-owners
cannot withdraw his consent midway the suit so as to
prejudice the other co-owner. The suit once filed, the
rights of the parties stand crystallised on the date of the
suit and the entitlement of the co-owners to seek
ejectment must be adjudged by reference to the date of
institution of the suit; the only exception being when
by virtue of a subsequent event the entitlement of the
body of co-owners to eject the tenant comes to an end
by act of parties or by operation of law.”
28. The principle reiterated in Dhannalal’s case (supra) was
further relied upon by Supreme Court in the case of Kasthuri
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Radhakrishnan vs. M. Chinniyan reported as (2016) 3 SCC 296 wherein
the Supreme Court observed as under:-
"xx xx xx 35) Likewise, so far as issue pertaining to joinder of
all co-owners in eviction petition filed against the
tenant under the Rent Laws is concerned, the same
also remains no more res Integra and stands settled by
several decisions of this Court. In Dhannalal v.
Kalawathibai Ors., (Supra), this Court took note of all
case laws on the subject and explained the legal
position governing the issue. Justice R.C.Lahoti (as
His Lordship then was) speaking for the Bench held in
paragraph 16 as under
“16. It is well settled by at least three decisions
of this Court, namely, Sri Ram Pasricha vs.
Jagannath, 1976 RCR (Rent) 832 : (1976) 4
SCC 184 Kanta Goel v. B.P. Pathak, 1979(1)
RCR (Rent) 485 : (1977) 2 SCC 814 and Pal
Singh v. Sunder Singh, 1989(2) RCR (Rent)
331 : (1989) 1 SCC 444 that one of the co-
owners can alone and in his own right file a suit
for ejectment of the tenant and it is no defence
open to the tenant to question the
maintainability of the suit on the ground that the
other co-owners were not joined as parties to the
suit. When the property forming the subject-
matter of eviction proceedings is owned by
several owners, every co-owner owns every part
and every bit of the joint property along with
others and it cannot be said that he is only a
part-owner or a fractional owner of the property
so long as the property has not been partitioned.
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He can alone maintain a suit for eviction of the
tenant without joining the other co-owners if
such other co-owners do not object. In Sri Ram
Pasricha case reliance was placed by the tenant
on the English rule that if two or more landlords
institute a suit for possession on the ground that
a dwelling house is required for occupation of
one of them as a residence the suit would fail;
the requirement must be of all the landlords. The
Court noted that the English rule was not
followed by the High Courts of Calcutta and
Gujarat which High Courts have respectfully
dissented from the rule of English law. This
Court held that a decree could be passed in
favour of the plaintiff though he was not the
absolute and full owner of the premises because
he required the premises for his own use and
also satisfied the requirement of being “if he is
the owner”, the expression as employed by
Section 13(1)(f) of the W.B. Premises Tenancy
Act, 1956.”
36) The issues involved in this case need to be
decided keeping in view the law laid down in the
aforesaid three cases and the one cited infra.
37) Coming to the first question, in our considered
opinion, the High Court erred in holding that the
daughter of late A. Radhakrishnan, i.e., Tmt. R.
Kanjana was a necessary party to the eviction petition
filed by the appellants and hence failure to implead her
rendered the eviction petition as not maintainable. This
finding of the High Court, in our view, is against the
law laid down by this Court in the case of Dhannalal
(supra), wherein it is laid down that it is not necessary
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to implead all the co- owners in the eviction petition.
38) In the light of law laid down in the case of
Dhannalal (supra), in our view, it was not necessary
for the appellants to implead the Tmt. R. Kanjana – the
daughter of late A. Radhakrishnan in the eviction
petition. Even otherwise, as rightly argued by learned
counsel for the appellants, the High Court should not
have allowed respondent No.1 to raise such objection
for the first time in the revision because it was not
raised in the courts below. Be that as it may, the
daughter having been later impleaded in the
proceedings, this objection was not even available to
respondent No.1.
39) In view of foregoing discussion, we can not concur
with the finding of the High Court and while reversing
the finding hold that the eviction petition can not be
dismissed on the ground of non-joinder of Tmt. R.
Kanjana – the daughter of late A. Radhakrishnan and
is held maintainable.”
29. Recently, while dealing with the application filed under
Order 1, Rule 10 Supreme Court in Kanaklalta Das v. Naba Kumar Das
reported as (2018) 2 SCC 352 culled out various principles related to
eviction petitions and the necessary parties thereto observing as under:-
“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
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 only24 of 28
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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’s-
tenant’s eviction under the Rent Act exists. When these
two things are proved, 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, (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
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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, 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, AIR 1963 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 vs. M. Chinniyan
[Kasthuri Radhakrishnan vs. M. Chinniyan, 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.”
30. Applying the aforesaid principles of law to the present case,
this Court finds that even though Jagan Nath appeared as RW-4, but in
whole of his testimony, he nowhere objected to filing of the eviction
petition by Prem Chand Bansal. Thus, in the absence of there being any
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objection by the co-owner against filing of the present eviction petition,
this Court finds that the objection raised with respect to the
maintainability of the present petition for non-joining co-owner Jagan
Nath cannot be sustained.
31. The other ground for eviction is non-payment of rent.
Admittedly, both the tenant as well as sub-tenant denied the relationship.
Thus, they cannot claim opportunity to make non-payment of rent good.
Admittedly, they did not pay rent to the original petitioner Prem Chand
Bansal, they are ordered to be evicted on the ground of non-payment of
rent as well.
32. Counsel for the petitioner in CR-4094-2018 on being asked
as to how he has filed the present revision petition once specific stand was
taken by him before the Rent Controller that he has no concern with the
demised premises, submits that the present revision petition has been filed
only to meet technical objection, if any, raised by the landlord.
33. As a sequel of the aforesaid discussion, this Court finds that
respondent-tenant and sub-tenant have made a deliberate attempt to
mislead the Court by creating confusion. In knitting this cobweb, they
were aided by Raj Kumar Bansal who has monetary transactions with
respondent Mahender Pal and Jagan Nath (brother and co-owner of the
landlord-petitioner). The falsity of all the 04 witnesses is evident on the
record. Landlord having proved his case and the sub-tenant being in
exclusive possession for consideration not in dispute, the present revision
petitions are dismissed.
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34. A photocopy of this order be placed on the file of other
connected case.
35. Since the main case has been decided, pending miscellaneous
application, if any, shall also stands disposed off.
(PANKAJ JAIN)
JUDGE
29.08.2024
Dinesh
Whether speaking/reasoned : Yes
Whether Reportable : Yes
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