Sudhir Agarwal, J. - (1.) Heard Sri V.C.Tripathi, Advocate holding brief of Sri Neeraj Tripathi, learned counsel for the appellant and Sri Hari Pratap Gupta, Advocate for the respondents.
(2.) The only substantial question of law involved in this appeal is: (i) Whether in view of findings recorded by lower Appellate Court that parties are joint owners of shop building in question could decree be passed against defendant directing him to hand over possession to the plaintiff.
(3.) In the present case it is not in dispute that status of defendant as joint owner came into existence before filing of the original suit no.1043 of 1976. This Court in Civil Misc. Writ Petition No.29301 of 2004 (Munshi Lal (deceased) represented by LRs. v. Gopal Sao & Ors.) decided on 01.2.2013 (reported in (2013) 92 ARC 494 considering two authorities of Apex Court in Abdul Alim v. Sheikh Jamaluddin Ansari & Ors., 1998 (2) ARC 614 : JT 1998(7) SC 192 and M/s. Indian Umbrella Manufacturing Co. & Ors. v. Bhagabandei Agarwalla (Dead) by Lrs. Smt. Savitri Agarwalla & ors., JT 2004 (1) SC 200 : 2004 SCFBRC 77 , in paras 16, 17, 18, 19, 24, 25 and 26 said: "16. In Abdul Alim (supra), there was a shop owned by Sheikh Jamal Uddin Ansari and his brother-Sheikh Burhan Uddin. It was in tenancy of Abdul Alim. Sheikh Burhan Uddin executed a registered sale deed on 12.4.1988 and sold his share in the shop to Abdul Alim. The other brother Sheikh Jamal Uddin Ansari filed an application for release of shop under Section 21(1)(a) of Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as "Act, 1972") but Prescribed Authority rejected application on the ground that tenant being co-owner of half of the share in shop, cannot be ousted therefrom and application is not maintainable. Same view was expressed by Appellant Court after dismissing the appeal of Sheikh Jamal Uddin Ansari but High Court held that sale deed would not result in converting status of tenant to that of owner, therefore, release application of Sheikh Jamal Uddin Ansari was maintainable. The Apex Court reversed decision of High Court and held that release application under Section 21(1)(a) of Act, 1972 was not maintainable because the tenant, acquired co-ownership rights in the demised shop even before filing of release application and it cannot thus be said that landlord co-owner has consent of other co-owner for seeking release of tenanted accommodation. The change of status of tenant to that of being an equal co-owner of unpartitioned property, would, therefore, lead to an irresistible conclusion that release application was not maintainable particularly when admittedly there was no partition of suit properties till the date of judgment of Apex Court. This is a decision rendered by Apex Court on 27.11.1997 by a Bench consisting of two Hon'ble Judges. 17. In M/s Indian Umbrella Manufacturing Co. (supra), the facts are slightly but remarkably different. The suit property consisted of a house and outhouses. The entire property including the land and building owned by one late Ladi Aggrawalini. It was in possession of two tenants. On 24.8.1957, late Ladi Aggrawalini made a gift of the suit property in favour of her two daughters namely Bhagabandei and Buchi Devi. The tenants were informed about such gift and they also attorned in favour of the donee sisters. On 1.6.1967, fresh deeds of lease were executed between the two co-landlords jointly and the two tenants individually. The two tenants were M/s. India Umbrella Manufacturing Company and M/s Bharat Stores & Agencies through its proprietor Tulsiram Swami. In the two lease deeds both the tenants agreed to pay monthly rent, though half thereof, to each of the two co-owners, separately. In other words, though the property itself was undivided and jointly owned by the two sisters, the rent agreed upon by the two tenants with the consent of the two co-owners to be apportioned in equal shares between the two co-owner. In 1971-72, both the coowners initiated proceedings for partition of only land and not that of structure standing thereupon. According to the local laws, orders were passed in partition case dividing land by metes and bounds but no such partition took place in respect to the structure of house standing over the land. The reason assigned by the two co-owners therefore was that both have decided to demolish the superstructure and then to construct their separate houses on their respective pieces of land, which had fallen to their respective shares pursuant to the land partition proceedings. The two co-owner and colandlady sisters joined together in filing suits for ejectment against the two tenants from the building in dispute. They pleaded that having no other house for their own residence, they proposed to demolish the house occupied by two tenants and thereafter would raise their own independent construction, besides alleging certain default in payment of rent against the tenants. The Trial Court dismissed the suit. Thereafter, Buchi Devi, one of the co-owner, executed a registered sale deed dated 12.6.1981 in respect to her share in the suit house to the partners of M/s. India Umbrella Manufacturing Company carrying on business in the suit premises. Subsequent to the aforesaid sale, another sister Bhagabandei alone filed appeals challenging dismissal of the suits by the Trial Court. Buchi Devi was impleaded as a proforma respondent. The purchasers of share of Buchi Devi were also impleaded as parties in the appeal. During pendency of appeal, the purchasor of the share of Buchi Devi filed an application stating that they were not interested in ejectment of tenants so far as their share in the property is concerned and thus prayed for dismissal of the suit. Another application was filed by tenant submitting that right to evict vests in the co-landlords and as one of them had transferred away her rights and the transferees were not interested in pursuing eviction, the appeal was incompetent and liable to be dismissed. The District Judge allowed the two appeals and in respect to the two applications filed by purchasers of share of Buchi Devi, and the tenant, he opined that they were of no consequence but added in the judgment, a rider, that, since some of the partners have purchased rights of one of the co-owners in the house property, unless and until house property is partitioned between the two co-owners by metes and bound, such purchasers cannot be evicted from the suit property and they would continue to pay rent to the extent of same proportion as it was being paid earlier. In substance, learned District Judge found the interest of landlords in the suit house to the extent of one half, i.e. owned by Buchi Devi, having vested in the partners of one of the tenants firm M/s. India Umbrella Manufacturing Company and therefore tenancy extinguished to the extent of one half by merger, but continuing to the extent of one half equivalent to the share owned by Bhagabandei. The other tenant was directed to be ejected. 18. The Apex Court looked into the matter and found that suit was filed by both the co-owners, meaning thereby both had common intention and objective that the two tenants should be evicted from property in dispute. In law, it is also well settled that even one of the co-owners can file a suit for eviction of a tenant in the property generally owned by the co-owners. The Court refers to its earlier decisions in Sri Ram Pasricha v. Jagannath & Ors., (1976) 4 SCC 184 ; Dhannalal v. Kalawatibai and Ors., (2002) 6 SCC 16 : 2002 SCFBRC 572 . The principle is based on the doctrine of agency. One coowner filing a suit for ejectment against a tenant does so on his own behalf in his own rights and as an agent of the other co-owners. The consent of other co-owners is assumed as taken unless it is shown as a matter of fact that other coowners were not agreeable to eject the tenant and the suit was filed in spite of their disagreement. The facts and circumstances, as available on the date of institution of suit, have to be seen so as to find out whether on that date it was validly filed or not. Admittedly, the suit was filed by both the co-owners with the clear intention of ejectment of two tenants from property in dispute. Having said so, the Apex Court further said: "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." (emphasis added) 19. The Apex Court considered another aspect of the matter in M/s India Umbrella Manufacturing Company (supra). The suit was filed willingly with common objective and intention by both the sisters. During continuation of litigation one of the sisters parted with her share in the property. The tenancy was in the name of the partnership firm. It was not clear whether all the partners or few of them constituted buyers to purchase share of one of the sisters. The fact remains that they had purchased only a share in the property and not the entire property. The applicability of doctrine of merger within the meaning of Clause (d) of Section 111 of the Transfer of Property Act, 1882 thus was not attracted. In order to bring tenancy to an end, the merger should be complete, i.e. interest of landlord in its entirety must come to vest and merge into the interest of tenant in its entirely. When part of interest of the landlord or interest of one of many co-landlords-cum-owners, comes to vest in the tenant, there is no merger and tenancy is not extinguished. 24. It is also not the case of petitioner that in respect to shop in question, he had pleaded since initial stage that it was a joint property of other sons of Raja Sao or that on the date of filing release application assuming that there were some other co-owners, they had any intention of not evicting petitioner from shop in question. The sale deed dated 4.11.1993 in respect to one-forth share in house no.CK37/16 came to be executed after filing of release application as also written statement by petitioner-tenant. A perusal of sale deed dated 4.11.1993 also refers to an agreement between the petitioner and heirs of Sri Bharat Sav regarding sale of oneforth share in the house property CK37/16, Vishwanath Gali, Varanasi and in reference thereto an earlier agreement dated 6th July, 1993 but it did not mention at any stage that the vendors therein had not consented or had expressed any otherwise view in respect to ejectment of petitioner-tenant from shop in question though release application dated 8.9.1992 of respondents 1 to 7 was pending at that time. It is in these facts and circumstances, in my view, what has been stated by Apex Court in M/s. India Umbrella Manufacturing Company (supra) in paras 6 and 7 of the judgment would squarely apply in the present case, inasmuch as, one of the co-owners cannot withdraw his consent midway the suit so as to prejudice the other coowner. The suit once filed, the rights of parties stand crystallised on the date of suit and the entitlement co-owners to seek ejectment must be adjudged by reference to the date of institution of the suit. 25. In Abdul Alim (supra), facts situation was different, inasmuch as, there half of the share was sold by one of the brothers to the tenant before filing of release application and that is why only one of the brothers could file application and not the another one. 26. He cannot presume to have consent of tenant acquiring co-ownership for his own ouster. The Appellate Court, therefore, has rightly followed decision of Apex Court in M/s. India Umbrella Manufacturing Company (supra) and in my view, it warrants no interference so far as this aspect is concerned.";