- (1.) SANJAY Misra, J. Heard Sri M. K. Nigam learned Counsel for the petitioners and Sri H. N. Singh learned Counsel appearing on behalf of contesting respondent No. 3.
(2.) BY means of this writ petition, the petitioners seek to challenge the judgment and order dated 4th December, 1991 passed by the District Judge Allahabad in Revision No. 145 of 1991. BY the aforesaid judgment, the revisional Court in exercise of its power under Section 25 of the Provincial Small Causes Courts Act has proceeded to allow the revision of the respondent No. 3 and set aside the judgment and decree of the Court below and also dismissed the suit of the petitioners with costs. Learned Counsel for the petitioners contends that the sole ground upon which the revision of the respondent No. 3 has been allowed is that the suit for ejectment should have been filed by all the landlords co-owners and since it has been filed by only one co-owner-landlord, therefore, he has no right to file the suit. Learned Counsel for the petitioners contends that the aforesaid view expressed by the revisional Court while allowing the revision of the respondent No. 3 is patently illegal in view of the decision pronounced in the case of Indian Umbrella Manufacturing Company (M/s) & Ors. v. Bhagabandei Agarwala (dead) by Lrs. Smt. Savitri Aganvala & Ors. , 2004 (1) JCLR 392 (SC) : 2004 (55) ALR 98. While relying upon the aforesaid decision, learned Counsel for the petitioners has stated that one co-owner can file a suit for eviction against a tenant on his behalf in his own right as agent of other co- owners and consent of the other co-owners is assumed to have been taken unless it is shown that the other co-owners were not agreeable for ejectment of the tenant. Learned Counsel for the petitioners submitted that the assumption that there was consent of the co-owners is quite apparent from the record of the case in as much as neither it has been pleaded by the tenant nor it is their case that the consent of the co-owners cannot be assumed to have been taken or that the other co-owners were not agreeable to the eviction of the tenant. Consequently he has submitted that the view expressed by the revisional Court is patently illegal and a co-owner can file a suit for eviction of the tenant. Learned Counsel appearing on behalf of the respondent No. 3, has contended that there was serious dispute with respect to ownership of the property in question inter se the petitioner and his family in as much as upon the demise of the original owner namely Smt. Chameli ownership of the premises devolved upon her two sons namely Bachchan and Bhola Nath. The petitioner herein are alleged to be sons of Bhola Nath. His contention is that the property in question was inherited by Bachchan and Bhola Nath and therefore, the petitioners have no right to maintain the suit. It is further stated that the will set up by the petitioners did not entitle them to ownership of the property to the exclusion of the other heirs including the children of Bachchan. Consequently his contention is that the suit was not maintainable at the instance of the petitioners alone. He has also contended that the petitioners are not landlord/owner of the premises in question by virtue of the will of 1976 set up by them.
(3.) FROM the record it appears that a Suit No. 95 of 1986 was filed by Smt. Radha Devi wife of Bachchan for partition and separate possession of various properties which the parties alleged to have inherited after the death of Smt. Chameli Devi. A compromise was entered into between the parties and the suit was finally decided in terms of the compromise on 5-4-1989. The compromise decree has been filed as Annexure-7 to the writ petition. A perusal of the said compromise decree indicates that the property in question belonged to the sons of Radha Devi as also the sons of Bhola Nath. It is not disputed between the parties before this Court that the compromise decree was passed in Suit No. 95 of 1986 on 5-4-1989. The trial Court while entering into the question of ownership of the property took into consideration the aforesaid decree and recorded its finding upon being prima facie satisfied that the property in question being House No. 471 Mutthiganj (New No. 1008 Mutthiganj) Allahabad was in the co-ownership of the petitioners as also the sons of Smt. Radha Devi. Upon recording the aforesaid finding, the trial Court had decreed the suit with respect to the arrears of rent and on the ground of subletting. The trial Court has not adjudicated the title of the parties itself. The revision of the tenant has been allowed by the impugned judgment solely on the ground that one co-owner could not bring a suit against the tenant and therefore, it was not maintainable. This Court is of the view that the reason for which the revisional Court has allowed the revision is clearly against the settled position of law. A suit for eviction of tenant can be brought by one of the co-owner. A co-owner is as much an owner of the property as any sole owner of a property is. The Hon'ble Supreme Court has held in the case of Sri Ram Pasricha v. Jagannath & Ors. , reported in (1976) 4 SCC 184, as quoted hereunder: "para 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 alongwith others and it cannot be 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 (I) (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 as the acknowledged landlord of the defendants. ";