# Amarnath Gupta Revisionist v. Smt. Usha Sharma

- **Citation:** (2023) 5 ILRA 671
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-05
- **Case number:** S.C.C. Revision No. 23 of 2023
- **Bench:** Neeraj Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/amarnath-gupta-revisionist-v-smt-usha-sharma-50267
- **Pages:** 13

## Headnote

A. Civil Law - Code of Civil Procedure,
1908-Section 115 - Transfer of Property
Act, 1882-Section 106- Uttar Pradesh
Urban Buildings (Regulation of Letting,
Rent and Eviction) Act, 1972-Section 21Eviction-Maintainability
of-Co-owner
whether being a family member or not has
full right to file suit for eviction in case
not objected by other co-owners-Partition
of property in dispute is not necessary
requirement for filing a suit for eviction so
far as tenant is concerned-It is only
between co-owners and in the present
672 INDIAN LAW REPORTS ALLAHABAD SERIES
case, co-owners are having no dissent on
point of filing of suit for eviction nor having
any dispute of partition-Only requirement
for filing of suit for eviction is about
relationship of landlord and tenant and
service of notice- in the present case,
undisputedly, till date, no partition has
taken place in accordance with sale deed
executed on 29.01.2019-In the sale deed,
consent of co-owner is not recorded for
filing of suit for eviction and nothing is
mentioned
about
the
tenancy-Suit
for
eviction is maintainable.(Para 1 to 44)

B. Ownership imports three essential
rights, namely, right to possession, right
to enjoy and right to dispose. If an owner
is wrongly deprived of possession of his
property he has a right to be put in
possession
thereof.
All
the
three
essentials are satisfied in the case of coowner of a land. All coowners have equal
rights and co-ordinate interest in the
property, though their shares may be
either fixed or indeterminate. Every coowner has a right to enjoyment and
possession equal to that of the other coowner or co-owners. Each co-owner has,
in theory interest in every infinitesimal
portion of the subject matter and each has
the right, irrespective of the quantity of
his interest, to be in possession of every
part and parcel of the property, jointly
with others. (Para 23)

The revision is dismissed. (E-6)

List of Cases cited:

## Text

_Characters 0–39,713 of 44,009. This is a partial read: ask again with offset=39713 for what follows._

5 All. Amarnath Gupta Vs. Smt. Usha Sharma
671
the basis of reliable material placed before
him (a) that there is real possibility of his
being released on bail and, and (b) that on
being so released he would in all
probability indulge in prejudicial activity;
and (3) if it is felt essential to detain him to
prevent him from so doing. If the authority
passes an order after recording his
satisfaction in his behalf, such an order
cannot be struck down on the ground that
the proper course for the authority was to
oppose the bail and if bail is granted
notwithstanding
such
opposition
to
question the same before a higher Court.

55. Keeping in view the fact that the
petitioner was already in Jail, in a case
under Sections 2/3 of the Uttar Pradesh
Gangsters
and
Anti-Social
Activities
(Prevention) Act, 1986, that he had not
filed an application for bail in the aforesaid
case before the Hon'ble High Court and that
even when he would file an application for
bail, he would not be released on bail
unless (a) the Public Prosecutor is given an
opportunity to oppose the application for
such release, and (b) the Court is satisfied
that there are reasonable grounds for
believing that he is not guilty of such
offence and that he is not likely to commit
any offence while on bail, it cannot be
accepted that there was any material for
recording the satisfaction of the detaining
authority that with a view to preventing the
petitioner from acting in any manner
prejudicial to the maintenance of public
order it was necessary to detain the
petitioner under the NSA, 1980. The
satisfaction that it is necessary to detain the
petitioner for the purpose of preventing him
from acting in a manner prejudicial to the
maintenance of public order is thus, the
basis of the order under section 3 (2) of the
NSA, 1980 and this basis is clearly absent
in the present case. Therefore, the detention
order dated 25.07.2022 is unsustainable in
law on this ground also.

56. In view of the aforesaid
discussion, the present Writ Petition is
allowed.
The
impugned
order
dated
25.07.2022
passed
by
the
District
Magistrate, Azamgarh ordering detention
of the petitioner Rangesh Yadav under
Section 3 (2) of the NSA, 1980 is hereby
quashed. The Respondents are commanded
to release the petitioner from detention
under the aforesaid order dated 25.07.2022
forthwith if not wanted in any other case.
----------
(2023) 5 ILRA 671
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.05.2023

BEFORE

THE HON'BLE NEERAJ TIWARI, J.

S.C.C. Revision No. 23 of 2023

Amarnath Gupta ...Revisionist
Versus
Smt. Usha Sharma ...Opposite Party

Counsel for the Revisionist:
Sri Rohan Gupta

Counsel for the Opposite Party:
Sri Prakhar Tandon

A. Civil Law - Code of Civil Procedure,
1908-Section 115 - Transfer of Property
Act, 1882-Section 106- Uttar Pradesh
Urban Buildings (Regulation of Letting,
Rent and Eviction) Act, 1972-Section 21Eviction-Maintainability
of-Co-owner
whether being a family member or not has
full right to file suit for eviction in case
not objected by other co-owners-Partition
of property in dispute is not necessary
requirement for filing a suit for eviction so
far as tenant is concerned-It is only
between co-owners and in the present
672 INDIAN LAW REPORTS ALLAHABAD SERIES
case, co-owners are having no dissent on
point of filing of suit for eviction nor having
any dispute of partition-Only requirement
for filing of suit for eviction is about
relationship of landlord and tenant and
service of notice- in the present case,
undisputedly, till date, no partition has
taken place in accordance with sale deed
executed on 29.01.2019-In the sale deed,
consent of co-owner is not recorded for
filing of suit for eviction and nothing is
mentioned
about
the
tenancy-Suit
for
eviction is maintainable.(Para 1 to 44)

B. Ownership imports three essential
rights, namely, right to possession, right
to enjoy and right to dispose. If an owner
is wrongly deprived of possession of his
property he has a right to be put in
possession
thereof.
All
the
three
essentials are satisfied in the case of coowner of a land. All coowners have equal
rights and co-ordinate interest in the
property, though their shares may be
either fixed or indeterminate. Every coowner has a right to enjoyment and
possession equal to that of the other coowner or co-owners. Each co-owner has,
in theory interest in every infinitesimal
portion of the subject matter and each has
the right, irrespective of the quantity of
his interest, to be in possession of every
part and parcel of the property, jointly
with others. (Para 23)

The revision is dismissed. (E-6)

List of Cases cited:

1. Abdul Hamid Vs Bhuwaneshwar Prasad
(1950) AIR Nagpur 18

2. B.P. Pathak, Vs Dr.Ryazuddin (1976) AIR M.P.
55

3. NalakathSainuddin Vs Koorikadan Sulaiman
(2002) 6 SCC 1

4. Kochkunju Nair Vs Koshy Alexander & ors.
(1999) 3 SCC 482

5. Ramdas Vs Sitabai & ors. (2009) SCC 444
6. Khalil Ahmad Vs Anis Ahmad Civil Revision
No. 500 of 2012

7. Nizamuddin Vs Smt. Bushara Khatoon & ors.
Writ A No. 5091 of 2013

8. Subhash Chandra @ Thru karta & anr.. Vs
Ajay Gupta Civil Revision No. 55 of 2013

9. U.P. St. Handloom Corp. Ltd. & anr.. Vs Smt.
Rashmi Arora S.C.C. Revision No. 544 of 2014

10. Smt. Kasthuri Radhakrishnan & ors. Vs M.
Chinniyan &Anr.(2016) 0 SCC 87

11. Vagha Vs Manilal (1935) AIR Bom. 262

12. B.P. Pathak Vs Dr. Riyazuddin & ors. (1976)
AIR MP 55

13. Mohinder Prasad Jain Vs Manohar Lal Jain
Civil Appeal No. 1263 of 2006

14. Rajendra Prasad & ors. Vs DJ, Alld. & ors.
64 ALR 879 (ALL)

15. FGP Ltd Vs Saleh Hooseini Doctor & anr..
(2009) SCC Online SC 1643

16. Sheel Chand Jain Vs Arun Kumar Tadiya &
ors. (2014) 103 ALR 303

(Delivered by Hon'ble Neeraj Tiwari, J.)

1. Heard Sri Rohan Gupta, learned
counsel for the revisionist and Sri Prakhar
Tondon, learned counsel for the opposite
party.

Present revision has been filed
with the following prayers:

"It is, therefore, Most respectfully
prayed that this Hon'ble Court may
graciously be pleased to allow the
aforesaid revision and set aside the
impugned order dated 07.02.2023 and the
consequential decree dated 14.02.2023,
passed by the Additional District Judge,
5 All. Amarnath Gupta Vs. Smt. Usha Sharma
673
Court No. 08, Kanpur Nagar in O.S. No. 73
of 2019; failing which the Revisionist shall
suffer irreparable loss and injury."

It is also prayed that the Hon'ble
Court may kindly be pleased to stay the
effect and operation of the impugned order
dated 07.02.2023 and the consequential
decree dated 14.02.2023, passed by the
Additional District Judge, Court No. 08,
Kanpur Nagar in O.S. No. 73 of 2019."

2. Since, only legal question is
involved in this matter, therefore, with the
consent of parties without inviting for
affidavits, the matter is being decided at the
admission stage itself.

3. Learned counsel for the revisionist
submitted that revisionist-defendant was a
tenant of Sri Kailash Nath Agarwal and
after the death of Sri Kailash Nath
Agarwal, his property was inherited by his
two sons, viz, Sri Pankaj Agarwal and Sri
Rakesh Kumar Agarwal. Thereafter, the
revisionist-defendant became tenant of Sri
Pankaj Agarwal. Pankaj Agarwal has sold
out half of the portion of the building,
which was in his share to Smt. Usha
Sharma, i.e. plaintiff-opposite party, who is
not a family member of Sri Pankaj
Agarwal.

4. He next submitted that after
execution of sale deed dated 29.01.2019,
plaintiff-opposite party has filed S.C.C.
Suit for eviction of house in question after
giving notice to revisionist-defendant under
Section 106 of Transfer of Property Act,
1882(hereinafter, referred to as, 'Act of
1882').

5. He next submitted that after
execution of sale deed dated 29.01.2019,
partition of property in question has not
taken place and without partition, it cannot
be ascertained as to which part of the
property, opposite party-co-owner is having
right to enter upon, in case of being ranked
outsider and not a family member.
Plaintiff-opposite party is having no right
to enter upon into the property in dispute
without partition, therefore, for filing the
suit for eviction, the first action required on
the part of plaintiff-opposite party is to file
a partition suit and obtain possession of
property in question and then file a suit for
eviction.

6. He next submitted that plaintiff-
opposite party is a co-owner, but an
outsider, therefore, she cannot file suit for
eviction without consent of another coowner, i.e. Rakesh Kumar Agarwal, who is
co-owner and also in occupation of half
portion of the property. He also submitted
that without obtaining possession over the
purchased part of the property, she cannot
file suit for eviction and in the present case,
undisputedly, till date, no partition has
taken place in accordance with sale deed
executed on 29.01.2019. In the sale deed,
consent of co-owner, i.e. Rakesh Kumar
Agarwal is not recorded for filing of suit
for eviction and nothing is mentioned about
the tenancy.

7. In support of his contention, Sri
Rohan Gupta, learned counsel for the
revisionist-defendant has placed reliance
upon judgment of High Court of Bombay
in the matter of Abdul Hamid Vs.
Bhuwaneshwar Prasad: AIR 1950 Nagpur
18, judgment of High Court of Madhya
Padesh in B.P. Pathak, Vs. Dr. Ryazuddin:
AIR 1976 Madhya Pradesh 55, followed
by the Apex Court in the case of Nalakath
Sainuddin Vs. Koorikadan Sulaiman:
(2002) 6 SCC 1, judgment of Apex court in
the matter of Kochkunju Nair Vs. Koshy
Alexander and Others: (1999) 3 SCC 482
674 INDIAN LAW REPORTS ALLAHABAD SERIES
and Ramdas Vs. Sitabai And Others:
(2009) Supreme Court Cases 444.

8. He lastly reiterated that, once it is
undisputed that plaintiff-opposite party-coowner is not a family member, no consent
of another co-owner for filing the suit for
eviction, no explanation about the tenancy,
no partition took place, therefore, no suit
for eviction may be filed.

9. Per contra, Sri Prakhar Tondon,
learned counsel for the opposite party has
opposed the submission made by learned
counsel for the revisionist and submitted
that there is no dispute on the point that
plaintiff-opposite party is a co-owner of the
house in question. He also submitted that
notice dated 12.07.2019 under Section 106
of the Act of 1988 has been served upon
the revisionist-defendant with specific
averment of ownership, which was not
denied in its reply dated 16.07.2019 by
revisionist-defendant.

10. He also submitted that even in the
written submission, co-ownership has been
very well accepted. Therefore, once the
notice
is
sufficient,
landlord-tenant
relationship is accepted, suit is very well
maintainable on behalf of co-owner.

11. In support of his contention,
learned counsel for the opposite party
placed reliance upon judgments of this
Court in Civil Revision No. 500 of 2012
(Khalil Ahmad Vs. Anis Ahmad), Writ A
No. 5091 of 2013(Nizamuddin Vs. Smt.
Bushara Khatoon and Others), Civil
Revision
No.
55
of
2013(Subhash
Chandra huf Thru karta And Anr. vs.
Ajay Gupta) and S.C.C. Revision No. 544
of
2014
(U.P.
State
Handloom
Corporation Ltd. And Anr. Vs. Smt.
Rashmi Arora).

12. He next submitted that, so far as
contention of learned counsel for the
revisionist-defendant that co-owner, being
the outsider cannot file suit for eviction is
concerned, is having no substance as not
based upon any Rule or law laid down by
the Court.

13. He firmly submitted that co-owner
has full right to file suit for eviction under
the Act of 1882 and even after filing of
suit, revisionist-defendant has never taken
this objection in written statement and
further co-owner, i.e. Sri Rakesh Kumar
Agarwal
has
also
never
filed
any
impleadment opposing the suit for eviction
filed by the plaintiff-opposite party. Once,
revisionist-defendant has not taken this
objection in his written statement and also
not produced any evidence showing dissent
of co-owner (Sri Rakesh Kumar Agarwal)
from the plaintiff-respondent, this plea
cannot be accepted.

14. In support of his contention, he
placed reliance upon the judgment of Apex
Court in Tmt. Kasthuri Radhakrishnan &
Ors. Vs. M. Chinniyan & Anr.: 2016 0
Supreme(SC) 87 and submitted that in this
case, Apex Court is of the firm view that
the co-owner is having full right to file suit
for eviction. Therefore, there is no illegality
in the order impugned and revision is liable
to be dismissed.

15. He also pointed out that in the sale
deed dated 29.01.2019, it is clearly
mentioned that lessor has given full right of
mutation to plaintiff-opposite party in
present as well as in future, therefore it
includes right to file suit for eviction also.
In light of that, the contention of learned
counsel for the revisionist that in sale deed,
nothing has been mentioned about the
consent and tenancy, cannot be accepted.
5 All. Amarnath Gupta Vs. Smt. Usha Sharma
675

16.

I
have
considered
rival
submissions made by learned counsel for
the parties and perused the record as well
as judgments relied upon by the counsel for
the parties.

17. Undisputed facts of case is that
earlier revisionist-defendant was a tenant of
Sri Kailash Nath Agarwal and after his
death, his property was inherited by his two
sons, viz, Sri Pankaj Agarwal and Sri
Rakesh Kumar Agarwal. Pankaj Agarwal
has sold out half of the property, which was
in his share, to Smt. Usha Sharma,
plaintiff-opposite party vide sale deed dated
29.01.2019. Smt. Usha Sharma, plaintiffopposite party has, thereafter, filed S.C.C.
Suit No. 73 of 2019 after giving notice to
revisionist-defendant under Section 106 of
Act of 1882. Sri Rakesh Kumar Agarwal,
another son of Lt. Sri Kailash Nath
Agarwal and co-owner of the property in
dispute has never raised any objection for
filing of suit for eviction by plaintiffopposite party, who became a co-owner of
the property in dispute after purchasing the
share of Sri Pankaj Agarwal.

18. The main issue before the Court is
to decide as to whether in case the plaintiffopposite party is not a family member, she
can file a suit for eviction without consent
of another co-owner or not.

19. The first judgment relied upon by
the learned counsel for the revisionist is
Abdul Hamid (Supra), which says that in
case of joint hindu family, a notice is
sufficient by the Manager, but here the
argument of learned counsel for the
revisionist is that plaintiff-opposite party is
not a family member, therefore she has no
right to file a suit for eviction. Relevant
paragraph of the said judgment is quoted
hereinbelow:

"5. In a recent decision in -
'Vagha v. Manilal', AIR 1935 Bom. 262,
Broomfiled
J.
held
that
where
the
landlord's rights belong jointly to several
persons, a suit to eject a tenant can only be
brought by all the co-owners suing jointly
as plaintiffs. In - 'Krishna Bhima v.
Laxmibai', AIR 1938 Bom. 316 the question
which arose for decision was whether a
notice given by a manager of a joint Hindu
family was sufficient to terminate the
tenancy and there, while the decision in -
'Blaji Bhikaji v. Gopal', 3 Bom. 23 was
relied on, it was said that such a notice was
sufficient to terminate the tenancy. This
case is different from the present because
here it has not been alleged and shown that
the notice given by the plaintiff was on
behalf of himself and the heirs of Ghulam
hussain. In the circumstances, I hold that
the suit was rightly dismissed."

20. This judgment is not applicable in
the case of the revisionist-defendant for the
very simple reason that the issue before the
Court was different in this case. The issue
was as to whether a manager of joint hindu
family can send a notice to terminate
tenancy or not and here the case is as to
whether a co-owner not being a family
member can file a suit for eviction or not.
Therefore, this judgment is of no use in the
present controversy.

21. The Second judgment relied upon
by the learned counsel for the revisionist is
B.P. Pathak(Supra), a judgment of High
Court of Madhya Pradesh, which has also
been affirmed by the Apex court in the
matter of Nalakath Sainuddin(Supra).
Relevant paragraphs of the said judgment
are quoted hereinbelow:

"23. In B.P. Pathak Vs. Dr.
Riyazuddin & Ors., AIR 1976 MP 55, a
676 INDIAN LAW REPORTS ALLAHABAD SERIES
Division Bench of the High Court of
Madhya Pradesh consisting of Chief
Justice P.K. Tare and Justice Shiv Dayal
(later, Chief Justice), took the view on an
illuminating survey of judicial opinion that
a transferee of a part of leased property
acquires "all the rights" of the lessor in
respect of that part as if it alone had
comprised the lease and a new relationship
is created between the transferee and the
lessee. The section creates a statutory
attornment substituting, but retaining the
same effect of, the contractual attornment.
Title of the assignee is complete on
execution of the deed of assignment and is
not postponed till the notice of the
assignment. The Division Bench repelled
the submission that since the lessor could
not have terminated the tenancy of a part of
the demised premises by a notice to quit, he
cannot transfer the premises in part and
confer such a right on the transferee. The
Division Bench held that the right of
ejectment
is
inherent
in
ownership.
Therefore, by virtue of Section 109 of T.P.
Act such transferee is entitled to evict the
tenant from the part transferred to him not
only when the lease had been determined
before the transfer but also if it is
determined after the transfer in any of the
circumstances mentioned in Section 111.
Thus he can terminate by a quit notice the
lease in respect of the property transferred
to him.

24. The Division Bench decision
came up for consideration by a Full Bench
of the same High Court in Sardarilal Vs.
Narayanlal, AIR 1980 MP 8. Chief Justice
G.P. Singh, speaking for the Full Bench,
approved the statement of law in B.P.
Pathak's case and held that Section 109 of
T.P. Act confers a right on the owner to
effect a severance of a lease by his
unilateral act and tenancy over a part of the
property leased can be determined by the
transferee."

22. From the perusal of the abovesaid
judgment, it is apparently clear that at no
point of time, right of co-owner has been
questioned, so far as filing of suit for
eviction is concerned rather the Court has
held that right of ejectment is inherent in
the ownership. Therefore, this judgment
does not come in the rescue of revisionistdefendant, but favours the opposite partyplaintiff.

23. The third judgment relied upon by
the
learned
counsel
for
revisionistdefendant is Kochkunju Nair (Supra).
Relevant paragraph of the said judgment is
quoted hereinbelow:

"9. Ownership imports three
essential
rights,
namely,
right
to
possession, right to enjoy and right to
dispose. If an owner is wrongly deprived of
possession of his property he has a right to
be put in possession thereof. All the three
essentials are satisfied in the case of coowner of a land. All coowners have equal
rights and co-ordinate interest in the
property, though their shares may be either
fixed or indeterminate. Every co-owner has
a right to enjoyment and possession equal
to that of the other co-owner or co-owners.
Each co-owner has, in theory interest in
every infinitesimal portion of the subject
matter and each has the right, irrespective
of the quantity of his interest, to be in
possession of every part and parcel of the
property, jointly with others. (vide Mitras
Co-ownership
and
Partition,
Seventh
Edn.)"

24. From the perusal of above said
paragraph of the judgment, it is clear that
the above case deals with the essential
5 All. Amarnath Gupta Vs. Smt. Usha Sharma
677
rights of ownership and it has been held
that other co-owner has a right to
enjoyment of possession equal to that of
other
co-owner/co-owners.
Here,
the
dispute is not between two co-owners, but
between an undisputed co-owner and a
tenant. Argument of learned counsel for the
revisionist-defendant, that co-owner being
an outsider cannot file a suit for eviction, is
not getting any support from the above
judgment rather it is helping the plaintiffopposite party by holding that each coowner has equal right to enjoyment of
possession.

25. The fourth judgment relied upon
by the learned counsel for the revisionistdefendant is Ramdas (Supra), which is of
no use in the present case as it may occupy
the filed in case there is dispute between
two co-owners, but here is a dispute is
between an undisputed co-owner and a
tenant.

26. Learned counsel for the opposite
party-plaintiff has placed reliance on the
judgment
of
U.P.
State
Handloom
Corporation
Ltd
(Supra).
Relevant
paragraph of the said judgment is quoted
hereinbelow:

"In the case of Modh Haneef vs.
Sunil Tuli AIR 2009 ALL (NOC) 2180, it has
been held that where the relationship of
landlord and tenant stand proved and the
tenancy is determined under section 106 of
the Transfer of Property Act, nothing more is
required for decreeing the suit for eviction in
respect of building which is not covered by
the provisions of U.P. Act No. 13 of 1972
when the notice of determination of tenancy
is valid and is duly served."

27. From the perusal of the above said
judgment, it clearly transpires that that once
landlord-tenant relationship stands proved
and tenancy is determined under Section
106 of the Act of 1882, nothing more is
required. In the present case, landlordtenant relationship is not disputed neither
service of notice is insufficient.

28. The same ratio of law was
followed by this Court in Nizamuddin
(Supra),
Khalil
Ahmad(Supra)
and
Subhash Chandra (Supra).

29. The another issue, which was
argued by the learned counsel for the
revisionist-defendant is that a co-owner
being an outsider has no right to file a suit
for eviction without the consent of other
co-owner.

30. This matter was also for
consideration before the Apex Court in
Civil Appeal No. 1263 of 2006: Mohinder
Prasad Jain Vs. Manohar Lal Jain.
Relevant paragraph of the said judgment is
quoted hereinbelow:

"7. 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 coowners.
(See
Sri
Ram
Pasricha
v.
Jagannath [(1976) 4 SCC 184] and
Dhannalal v. Kalawatibai [(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
678 INDIAN LAW REPORTS ALLAHABAD SERIES
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 coowners
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"

"8. A suit filed by a co-owner,
thus, is maintainable in law. It is not
necessary for the coowner to show before
initiating the eviction proceeding before the
Rent Controller that he had taken option or
consent of the other co-owners. However,
in the event, a co-owner objects thereto, the
same may be a relevant fact. In the instant
case, nothing has been brought on record
to show that the co-owners of the
respondent
had
objected
to
eviction
proceedings initiated by the respondent
herein. The submission of the learned
counsel for the appellant to the effect that
before initiating the proceedings, the
appellant was required to show that he had
experience in running the business in
Ayurvedic medicine, has to be stated to be
rejected. There is no law which provides
for such a pre-condition. It may be so
where a licence is required for running a
business, a statute may prescribe certain
qualifications or pre-conditions without
fulfilment whereof the landlord may not be
able to start a business, but for running a
wholesale business in Ayurvedic medicine,
no qualification is prescribed. Experience
in the business is not a pre-condition under
any statute. Even no experience therefor
may be necessary. If the respondent has
proved his bona fide requirement to evict
the appellant herein for his own purpose,
this Court may not, unless an appropriate
case is made out, disturb the finding of fact
arrived at by the Appellate Authority and
affirmed by the High Court."

31. From the perusal of the said
judgment, it is apparently clear that in this
matter, the Court has taken a firm view that
a co-owner has full right to file suit for
eviction in case not objected by other coowner.

32. This Court has again considered
the same issue in the matter of Rajendra
Prasad and others Vs. District Judge,
Allahabad and others: 64 ALR 879 (ALL).
Relevant paragraphs of the said judgment
are quoted hereinbelow:

"6. 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 Vs. Jagannath
and others reported in (1976) 4, S.C.C. 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 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 only
when partition takes place. It is, therefore,
not possible to accept the submission that
the plaintiff who is admittedly the landlord
5 All. Amarnath Gupta Vs. Smt. Usha Sharma
679
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 as the
acknowledged landlord of the defendants."

7. The aforesaid case related to
the provisions of the West Bengal Premises
Tenancy Act 1956 wherein section 13 (1)
(f) contained the words '' if he is the owner'
with respect to requirement of the premises
by the landlord for his own occupation. In
the
case
of
M/s
India
Umbrella
Manufacturing Co. (Supra) the Hon'ble
Supreme Court while considering the
situation where both the co-owners filed
the suit and midway one of the co-owners
withdrew his consent, it was held that one
of the co-owners can file a suit for eviction
of a tenant in the property generally owned
by the co-owners. Pragraph no.6 of the
judgment is quoted hereunder :

"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 coowners.
(See
Sri
Ram
Pasricha
V.
Jagannath and others, Dhannalal vs.
Kalawatibai and others). This principal is
based on the doctrine of agency. One coowners 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 coowners . 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 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-owners. The suit once filed, the rights of
the parties stand crystallized on the date of
the suit and the entitlement of the coowners 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 even 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."

8. From the above it is clear that
a co-owner can bring a suit for eviction of
the tenant unless it was shown that the
other co-owners were not agreeable to the
ejectment of the tenant.

9. U.P. Act No. 13 of 1972 has
not given the definition of owner but
landlord has been defined in Section 3 (j)
as quoted here under :-

"landlord'
in
relation
to
a
building means a person to whom its rent is
or if the building , were let would be ,
payable, and includes , except in clause (g)
,the agent or attorney , of such person."

10. Rule 15 of the U.P.Urban
Building (Regulation o f Letting, Rent and
Eviction ) Rules 1972 requires that an
application for release of the premises
should be signed by all the landlords. This
question has since been settled by a
decision of a Full Bench of this Court in the
case of Gopal Dass and another Vs. Ist
A.D.J. reported in (198) (1) ARC 281
wherein this Court held in paragraph 17 as
quoted hereunder :-

"So far as the applicability of this
Rule to the present case is concerned, there
is no problem. Murlidhar Shah who has
brought the action for eviction of the
premises in question is undoubtedly the
landlord. He has signed the application. He
alone is competent to sign the application.
However, we may point out that the
requirement of Rule 15 (2) that an
application for release of premises owned
680 INDIAN LAW REPORTS ALLAHABAD SERIES
by co-owners should be signed by all coowners would be invalid. One co-owner is
competent to maintain an action for
eviction of the tenant of the entire premises,
since he can be considered as a landlord
within the meaning of Section 3 (j) of the
Act. One Co-owner alone would be
competent to sign such an application.""

33. Considering various judgments,
this Court is of the same view that a coowner has full right to file suit for eviction,
in case objection has not raised by other coowner.

34. This issue was again before the
Apex Court in the matter of FGP Limited
Vs. Saleh Hooseini Doctor and Another:
2009 SCC Online SC 1643. Relevant
paragraphs of the said judgment are quoted
hereinbelow:

"37. It has been urged by the
learned counsel for the appellant that in the
Suit which has been filed by the respondents
they have not asserted that they are filing it
as coowners but they have claimed that they
are filing it as executors/executrix. So they
cannot
now
meet
the
challenge
of
maintainability of the Suit on the ground that
it was filed by the respondents as coowners.
It is not possible to accept the aforesaid
contention in the facts of this case. This Court
is of the opinion that if the status of the
respondents as co-owners of the property
transpires clearly from the admitted facts of
the case, they cannot be denuded of the said
status at the instance of some objections by
the tenants. Normally, a tenant's right to
question the title of a landlord is very limited
in view of rule of law which is codified in
Section 116 of the Indian Evidence Act.

44. The principles which have
been affirmed in Mohinder Prasad Jain
(supra) are that 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 coowners. In this matter,
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.(See para 10 page 727 of the
report). It is nobody's case here that other
co-owners are objecting to the filing of the
suit in question."

35. In this case, the Apex Court is of
the same view that a co-owner has full right
for filing a suit for eviction unless objected
for doing so by the other co-owner.

36. The same issue was also subject
matter before this Court in Sheel Chand
Jain Vs. Arun Kumar Tadiya and Others:
(2014) 103 ALR 303. Relevant paragraphs
of the said judgment are quoted herein
below:

"9. However, one aspect left open
for consideration, was a situation where
some of the co-owners want to continue the
tenant contrary to relief claimed by one coowner, instituting proceeding.

10. Both the above decisions have
been considered and followed in Pal Singh
Vs. Sunder Singh and others, AIR 1989 SC
758. The Court, however, explained the
situation and said other co-owner when did
not object to eviction, one co-owner can
maintain an action for eviction, even in
absence of other co-owners. This is evident
from para 10 of the judgment where the
Court said:

"This in our opinion falls within
the ratio of Kama Goel v. B.P. Pathak
(supra) 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
5 All. Amarnath Gupta Vs. Smt. Usha Sharma
681
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."

11. The dictum in Sri Ram
Pasricha (supra) was followed in Subhendu
Prosad Roy Choudhury and others Vs.
Kamala Bala Roy Choudhury and others,
AIR 1978 SC 835 in the context of quit
notice given by one co-owner (landlord) to
tenant and the Court said:

"Even assuming that notice was
not given on behalf of one of the co-owner
landlords, the decision of this Court is Sri
Ram Pasricha v. Jagannath and Ors.
Would show that yet the notice was good
and valid."

12. A Division Bench of this
Court followed the above dictum in Rang
Nath Vs. State of U.P., 1984 ARC 642 and
the correctness of aforesaid decision was
considered by Full Bench in Gopal Das
and another Vs. Ist Additional District
Judge, Varanasi and others, AIR 1987 All
261. The Full Bench approved dictum laid
down in Rang Nath (supra) by observing in
para 11 as under:

"11. In view of these decisions,
there can, therefore, be little doubt as to
the maintainability of the action for
eviction brought by one co-owner without
impleading the other co-owners. The view
taken in Devi Charan's case 1980 UPLT
NOC 143 cannot be said to have laid down
the correct law and it is overruled. The
view taken in Ranga Nath's case (1984 All
LJ 455 is correct and we reiterate the
same."

13. It is also worthy to notice that
Rule 15(2) of U.P. Urban Buildings
(Regulation of Letting, Rent and Eviction)
Rules, 1972 (hereinafter referred to as the
"Rules, 1972") provids, if there are more
than one landlord, the application shall be
signed by all the landlords. Construing the
aforesaid provision in the context of coowners, the Full Bench in para 16 of the
judgment said, if this Rule is to be pressed
in the case of co-owners, it shall be invalid
since even one co-owner is competent to
sign application and filed it. The relevant
part of para 16 reads as under:

11. "However, we may point out
that the requirement of Rule 15(2) that an
application for release of premises owned
by co-owners should be signed by all coowners would be invalid. One co-owner is
competent to maintain an action of eviction
of the tenant of the entire premises, since
he can be considered as a landlord within
the meaning of Section 3(i) of the Act. One
co-owner alone would be competent to sign
such an application."

14. In other words when one
comes to seek some relief, the law in
presenti, is where the building has several
co-owners, in absence of partition, even
one co-owner can maintain proceedings for
eviction of tenant(s) unless such eviction
proceedings are objected to by other coowners individually or collectively, as the
case may be, expressing their intention to
keep tenancy continue.

37. The Court after considering
different judgments has clearly held that a
co-owner has full right to maintain a suit
for eviction unless other co-owner raise any
objection for the same.

38. The another judgment relied upon
by the learned counsel for the plaintiffopposite
party
is
Tmt.
Kasthuri
Radhakrishnan(Supra). Relevant paragraph
of the said judgment is quoted hereinbelow:
682 INDIAN LAW REPORTS ALLAHABAD SERIES

"It is well settled by at least three
decisions of this Court, namely, Sri Ram
Pasricha v. Jagannath (1976) 4 SCC
184Kanta Goel v. B.P. Pathak, (1977) 2
SCC 814 and Pal Singh v. Sunder Singh,
(1989) 1 SCC 444 that one of the coowners 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. 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.""

39. From the perusal of the above
paragraph, it transpires that in this
judgment,
the
Apex
Court
while
considering many judgments, has clearly
held that a co-owner has full right for filing
a suit for eviction in case other co-owner/s
do not object.

40. In the present case, co-owner Sri
Rakesh Kumar Agarwal has never raised
any objection for filing of suit for eviction
by plaintiff-opposite party, Smt. Usha
Sharma. Even after filing of suit, co-owner
has never taken any objection and has
never filed any impleadment application
opposing the suit for eviction. Therefore, in
light of law laid down by the Apex Court,
though co-owner being an outsider, has full
right for filing suit for eviction.

41.