# Shreeram Yadav v. Sanjay Mall & Ors

- **Citation:** (2025) 2 ILRA 61
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-02-13
- **Case number:** Matters Under Article 227 No. 1401 of 2025
- **Bench:** Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/shreeram-yadav-v-sanjay-mall-ors-53012
- **Pages:** 4

## Headnote

Law
-
U.P.
Urban
Buildings
(Regulation of Letting, Rent and Eviction)
Act, 1972 - Constitution of India, Article
227- Release application - Co-owner's
maintainability to seek release - Tenant's
objection that purchaser of undivided
property has no possessory right rejected
- Held, tenant cannot object to release
application on ground that landlord is only
a co-owner - Notional possession of coowner
sufficient
to
maintain
release
application - Proceedings under Rent Act
summary in nature - Issue of exclusive
title or partition not germane - Petition
under Article 227 against rejection of
amendment in objection found devoid of
merit - Petition dismissed. (Paras 5 and 6)
HELD:
Having heard learned counsel for the respective
parties and having perused the records, I find
merit in the submissions advanced by Sri O.P.
Singh, learned Senior Advocate appearing for
the respondents. A tenant cannot take an
62 INDIAN LAW REPORTS ALLAHABAD SERIES
objection to a co-owner for maintaining a
release application as it has been held in a
catena of decisions by this Court as well as
Supreme Court that one of the co-owners can
maintain a release application. M/s. India
Umbrella Manufacturing Company & ors. v.
Bhagabandei Agarwalla (Dead) by LRs Smt.
Savitri Agarwalla & ors., (2004) 3 SCC 178, Sri
Ram Pasricha v. Jagannath & ors. (1976) 4 SCC

## Text

2 All. Shreeram Yadav Vs. Sanjay Mall & Ors.
61
Hon'ble Supreme Court has held as under
:-

"Second appeals would lie in
cases which involve substantial questions
of law. The word 'substantial' prefixed to
'question of law' does not refer to the stakes
involved in the case, nor intended to refer
only to questions of law of general
importance, but refers to impact or effect of
the question of law on the decision in the lis
between the parties. 'Substantial questions
of
law'
means not
only
substantial
questions of law of general importance, but
also substantial question of law arising in a
case as between the parties. In the context
of section 100 CPC, any question of law
which affects the final decision in a case is
a substantial question of law as between
the parties. A question of law which arises
incidentally or collaterally, having no
bearing in the final outcome, will not be a
substantial question of law. Where there is
a clear and settled enunciation on a
question of law, by this Court or by the
High Court concerned, it cannot be said
that the case involves a substantial
question of law."

31. In view of above, this Court is
of the view that the impugned judgment
and
decrees
have
been
passed
in
accordance with law after considering the
pleadings, evidence and material on record
and it cannot be said that the findings
recorded by the courts below regarding
parentage of plaintiff-respondent and also
regarding fraud in execution of Will are
against the evidence on record and
perverse, whereas they are based on
evidence and material on record and does
not suffer from any illegality,error or
perversity,which
may
call
for
any
interference by this Court. The substantial
question of law formulated in this appeal is
decided accordingly. The appeal has been
filed
on
misconceived
and
baseless
grounds, which is liable to be dismissed.

32.
The
appeal
is,
accordingly,
dismissed. No order as to costs.
----------
(2025) 2 ILRA 61
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.02.2025

BEFORE

THE HON'BLE AJIT KUMAR, J.

Matters Under Article 227 No. 1401 of 2025

Shreeram Yadav ...Petitioner
Versus
Sanjay Mall & Ors. ...Respondents

Counsel for the Petitioner:
Shiv Om Vikram Singh Chauhan

Counsel for the Respondents:
Sushil Kumar Mishra

Civil
Law
-
U.P.
Urban
Buildings
(Regulation of Letting, Rent and Eviction)
Act, 1972 - Constitution of India, Article
227- Release application - Co-owner's
maintainability to seek release - Tenant's
objection that purchaser of undivided
property has no possessory right rejected
- Held, tenant cannot object to release
application on ground that landlord is only
a co-owner - Notional possession of coowner
sufficient
to
maintain
release
application - Proceedings under Rent Act
summary in nature - Issue of exclusive
title or partition not germane - Petition
under Article 227 against rejection of
amendment in objection found devoid of
merit - Petition dismissed. (Paras 5 and 6)
HELD:
Having heard learned counsel for the respective
parties and having perused the records, I find
merit in the submissions advanced by Sri O.P.
Singh, learned Senior Advocate appearing for
the respondents. A tenant cannot take an
62 INDIAN LAW REPORTS ALLAHABAD SERIES
objection to a co-owner for maintaining a
release application as it has been held in a
catena of decisions by this Court as well as
Supreme Court that one of the co-owners can
maintain a release application. M/s. India
Umbrella Manufacturing Company & ors. v.
Bhagabandei Agarwalla (Dead) by LRs Smt.
Savitri Agarwalla & ors., (2004) 3 SCC 178, Sri
Ram Pasricha v. Jagannath & ors. (1976) 4 SCC
184. (Para 5)

The plea that is sought to be taken that a coowner cannot have a possessory right unless
there is a partition in metes and bounds of a
property, is something like a plea by a co-owner
to be taken against other co-owners. This plea
according to me is not available to a tenant.
One must keep in mind that a vendee may not
have
an
exclusive
right
of
transferring
possession of a specific part of joint property
but on principle of joint ownership, he is in
notional possession of the undivided property
with all his co-sharers. This theory of possessory
title, however, cannot help the tenant to
question maintainability of release application.
Once the property is released by a tenant, it
would vest in all co-owners and will come in
valid exclusive possession of one only after
partition. So upon release, if a co-owner gets
possession of property, he cannot sell it out with
transfer of exclusive possession thereof but
tenant does not get any legal right to question
maintainability of release application. Thus,
maintainability of release application cannot be
questioned on the basis that co-owner filed a
release application. The observations that have
come to be made in the judgment of Supreme
Court in Gajara Vishnu Gosavi (supra), do not
come in the conflict with what view I have taken
above. That was a case in which a purchaser of
the property from a co-parcener was trying to
have a possessory rights in respect of undivided
property. It is a settled law that in respect of a
property of co-sharers, possession of one is
taken to be possession of all other co-sharers.
This is the principle that has been followed till
date. However, in respect of release application
upon being filed which is a summary proceeding
in which even the title issue cannot be gone into
except incidentally and that too where the
petitioner raises plea of inherent lack of title but
this is not the case in hand. The facts of that
case are absolutely distinguishable and the
principle enunciated in the said judgment does
not attract to the present case. (para 6)

Petition dismissed. (E-14)

List of Cases cited:

1. Gajara Vishnu Gosavi Vs Prakash Nanasaheb
Kamble & ors., (2009) 10 SCC 654

2. Ramdas Vs Sitabai & ors., JT 2009 (8) SC 224

3. Sri Ram Pasricha Vs Jagannath & ors., (1976)
4 SCC 184

4. M/S. India Umbrella Manufacturing Co. Vs
Bhagabandei Agarwalla (dead), (2004) 3 SCC
178

(Delivered by Hon'ble Ajit Kumar, J.)

1. Heard Sri Vishnu Gupta, learned
Senior Advocate assisted by Sri Shiv Om
Vikram Singh Chauhan, learned counsel
for the petitioner and Sri O.P. Singh,
learned Senior Advocate assisted by Sri
Sushil Kumar Mishra, learned counsel for
the respondents.

2. By means of this petition filed
under Article 227 of the Constitution,
petitioner has assailed the order passed by
the Prescribed Authority dated 29.11.2024
by means of which his amendment
application
in
the
written
statement/
objection filed by him against the release
application has come to be rejected.

3.
Admittedly
the
case
was
instituted in 2017 and the landlord who has
applied for release becomes owner of the
property by virtue of sale deed dated
30.11.2013. The question sought to be
raised by the tenant/ petitioner is that a
person who steps into the shoes of owner of
the property by virtue of sale deed in
respect of undivided property only becomes
entitled to a share of the property only and
2 All. Shreeram Yadav Vs. Sanjay Mall & Ors.
63
cannot have possessory rights qua such
property. He has placed reliance upon a
judgment of Supreme Court in the case of
Gajara
Vishnu
Gosavi
v.
Prakash
Nanasaheb Kamble & Others, (2009) 10
SCC 654 in which Court has relied upon
the observations made by another bench of
that court in the case of Ramdas v. Sitabai
& Others, JT 2009 (8) SC 224, wherein it
was held that "a purchaser of a coparcener's undivided interest in the joint
family property is not entitled to possession
of what he had purchased. He has a right
only to sue for partition of the property and
ask for allotment of his share in the suit
property."

4. Countering the submission so
advanced by learned counsel for the
petitioner,
learned
Senior
Advocate
appearing for the respondents Sri O.P.
Singh submits that once the property comes
to be purchased by a third party and he
becomes the owner of the property, may be
he becomes the co-sharer of the property
but that would amount to a status of coowner and sitting tenant cannot take
objection that a co-owner cannot maintain
release application only for the reason that
he is not having possessory rights with
partition. It is further submitted that the
judgment that has been relied upon was in
respect of an agricultural holding where
there was a dispute regarding undivided
share. He, therefore, submits that the facts
of that case are distinguishable and are not
applicable to a rent dispute case where the
title is not germane to the proceedings.

5. Having heard learned counsel for
the respective parties and having perused
the records, I find merit in the submissions
advanced by Sri O.P. Singh, learned Senior
Advocate appearing for the respondents. A
tenant cannot take an objection to a coowner for maintaining a release application
as it has been held in a catena of decisions
by this Court as well as Supreme Court that
one of the co-owners can maintain a release
application.
M/s.
India
Umbrella
Manufacturing Company & Others v.
Bhagabandei Agarwalla (Dead) by LRs
Smt. Savitri Agarwalla & Others, (2004) 3
SCC 178, Sri Ram Pasricha v. Jagannath &
Others (1976) 4 SCC 184.

6. The plea that is sought to be
taken that a co-owner cannot have a
possessory right unless there is a partition
in metes and bounds of a property, is
something like a plea by a co-owner to be
taken against other co-owners. This plea
according to me is not available to a tenant.
One must keep in mind that a vendee may
not have an exclusive right of transferring
possession of a specific part of joint
property
but
on
principle
of
joint
ownership, he is in notional possession of
the undivided property with all his cosharers. This theory of possessory title,
however, cannot help the tenant to question
maintainability of release application. Once
the property is released by a tenant, it
would vest in all co-owners and will come
in valid exclusive possession of one only
after partition. So upon release, if a coowner gets possession of property, he
cannot sell it out with transfer of exclusive
possession thereof but tenant does not get
any legal right to question maintainability
of
release
application.
Thus,
maintainability
of
release
application
cannot be questioned on the basis that coowner filed a release application. The
observations that have come to be made in
the judgment of Supreme Court in Gajara
Vishnu Gosavi (supra), do not come in the
conflict with what view I have taken above.
That was a case in which a purchaser of the
property from a co-parcener was trying to
64 INDIAN LAW REPORTS ALLAHABAD SERIES
have a possessory rights in respect of
undivided property. It is a settled law that in
respect
of
a
property
of
co-sharers,
possession of one is taken to be possession of
all other co-sharers. This is the principle that
has been followed till date. However, in
respect of release application upon being filed
which is a summary proceeding in which
even the title issue cannot be gone into except
incidentally and that too where the petitioner
raises plea of inherent lack of title but this is
not the case in hand. The facts of that case are
absolutely distinguishable and the principle
enunciated in the said judgment does not
attract to the present case.

7. In view of the above, I do not
find any manifest error in the order passed
by the Prescribed Authority.

8. Petition is devoid of merits and
is accordingly dismissed.
----------
(2025) 2 ILRA 64
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.02.2025

BEFORE

THE HON'BLE AJIT KUMAR, J.

Matters Under Article 227 No. 3900 of 2022

Rambabu Gupta & Ors. ...Petitioners
Versus
Shri Ganesh Maharaj Virajman
 ...Respondents

Counsel for the Petitioners:
Nikhil Chaturvedi, Sr. Advocate

Counsel for the Respondents:
Nitin Yasharth, Padmaker Pandey, Sunil
Kumar Srivastava, Yasharth

Civil
Law-The
Uttar
Pradesh
Urban
Building (Regulation of letting, Rent and
Eviction) Act, 1972-Sections- 21 (1)
(a) & 2 (1) (bb)- Whether even in case
of a private trust bona fide need can only
be set up for the requirement of the trust
and not qua family members of the
trustee?---After the amending Act came
into force the public charitable trusts no
more are amenable to rent authority
jurisdiction qua rights under the Act of
1972 but the private trusts do and the last
part of provisions as have remained unamended under Section 21(1) (a) shall not
apply to a private trust.

Petition dismissed. (E-15)

List of Cases cited:

1. Nawab Sardar Meer Sultan Saheb Alim Khan
Saheb Vs R.R. Gibson 1969 (71) BomLR 357 =
Law Finder DocId # 31388

2. Genda Lal Vs District Judge, Kanpur Nagar &
ors.Allahabad Rent Case 1999 volume 1 Page
No. 3

(Delivered by Hon'ble Ajit Kumar, J.)

1. Heard Shri P.K. Jain, learned Senior
Advocate
assisted
by
Shri
Nikhil
Chaturvedi, learned counsel appearing for
petitioners and Shri Atul Dayal, learned
Senior Advocate assisted by Shri Nitin
Yasharth, learned counsel appearing for
respondent

2. Petitioner tenant has assailed the
order of release passed by the Prescribed
Authority in P.A Case No. 41 of 2011 in
favour of the landlord respondent only on
the ground that a personal need could not
have been set up for the members of the
family of Mutawalli even in the event the
trust is a private trust and in support of his
submission learned counsel appearing for
petitioner has relied upon Section 21 1 (a)
of the U.P. Urban Building (Regulation of
letting, Rent and Eviction) Act, 1972.
There was also a point raised before the