1. Heard Sri Vishnu Gupta, learned counsel for the petitioners and Sri Swapnil Kumar, Advocate for respondents no. 1, 2 and 3.
2. This writ petition is directed against the judgment dated 24.11.2006 passed by Additional District Judge, court No. 1, Etah, allowing SCC Revision No. 13 of 2003 and while setting aside Trial Court's judgment dated 29.08.2005 passed in SCC Suit No. 34 of 1993, it has directed the Trial Court to decide suit on merits.
3. The Trial Court by its judgment dated 29.08.2005 has returned plaint by holding that it is a title dispute and, therefore, under Section 23 of Provincial Small Cause Courts Act, 1887 (hereinafter referred to as the "Act, 1887"), the plaint is to be returned to plaintiff so as to be lodged in regular court but this order has been set aside by Revisional Court holding that there was no such dispute of title which would have deprived jurisdiction of Small Cause Court from deciding matter and the Small Cause Court should have proceeded with the matter on merits to decide the same.
4. The dispute relates to House No. 148/1 and 148/2, situate at Mohalla Govind Das, Kasba Aliganj, Pargana Azam Nagar, Tehsil Aliganj, District Etah. Originally Sri Ambika Prasad Mishra was the owner of aforesaid house. After his death the property was inherited by his son and daughters, i.e., Sri Sacchidanand and his six sisters, namely, Uma Devi, Rani Devi, Basanti Devi, Rajendra Kumari, Sharda Devi and Sarla Rani. The plaintiffs claim that vide sale deeds dated 13.03.1992, 16.03.1992 and 23.03.1992 the entire property was purchased from various co-owners and since then plaintiffs are owner and in possession of disputed property. Before alleged purchase, Sri Karim Baksh, father of defendants, and Sri Lal Mohammad, were tenants at the rate of Rs. 10 per month. After the death of Sri Ambika Prasad Mishra, rent was collected by Sri Sacchidanand as owner and landlord of property in dispute. Sri Karim Baksh died in 1990 conferring co-tenancy rights upon defendants/legal heirs. The plaintiffs gave notice to defendants on 05.08.1992, regarding purchase of property in dispute. The rent fell due from August, 1992, demand whereof was raised vide notice dated 27.01.1993 which was served upon defendants on 02/03.02.1993 but they did not pay rent, consequently on the ground of non-payment of rent, suit for eviction and recovery of rent was instituted by plaintiffs-respondents vide plaint dated 11.10.1995.
5. Petitioners-defendants contested the suit wherein they did not dispute that initial ownership of house in question vested in Sri Ambika Prasad Mishra. It is, however, said that after his death his son and six daughters each became co-owner to the extent of 1/7 part each of disputed house. Sri Sacchidanand Mishra executed sale deed dated 13.03.1992 transferring 1/2 of 6/7 share of disputed property though his share was only 1/7 and he could not have executed sale deed more than that. It is said that another sale deed was executed by Sri Sacchidanand Mishra on 16.03.1992 transferring 1/2 part of 6/7 share in favour of Smt. Shashi Prabha though here also it was not permissible for him to sell more than his share. The defendants got sale deeds executed from legal heirs of Smt. Rani, daughter of Sri Ambika Prasad Mishra and Smt. Uma Devi another daughter of Sri Ambika Prasad Mishra. They became owner to the extent of shares of those two daughters of Sri Ambika Prasad Mishra, i.e., to the extent of 2/7 in the property in dispute. Since Sarla Devi also executed a sale deed in favour of plaintiffs, therefore, plaintiffs also became owner of 2/7 share of property in dispute. The defendants remitted rent to the extent of 2/7 share but plaintiffs declined to accept the same.
6. Before Trial Court the plaintiffs claimed, that two sale deed, set up by defendants, having executed in their favour by two daughters of Sri Ambika Prasad Mishra, i.e., Smt. Rani and Smt. Uma Devi, are forged and fictitious. They, in fact, disputed status of defendants as co-owners, having 2/7 ownership rights, in the house in dispute. It is in these circumstances, the Trial Court observed that validity of sale deed cannot be examined in small cause suit and hence plaintiffs must initiate regular proceedings by filing original suit and consequently returned the plaint.
7. The Revisional Court, however, has taken a view that Trial Court ought to have examined the question, whether there exists relationship of landlord and tenant between parties; and, whether such relationship, if existed, can cease on account of purchase of part of property or share in the said property, by defendants, but these two issues having not been examined by Trial Court, therefore, the judgment is liable to be set aside.
8. In my view, the approach of Revisional Court in the case in hand is clearly erroneous. It cannot be doubted that suit for eviction, as instituted by plaintiffs-respondents, was not maintainable. It is not in dispute that plaint is dated 09.10.1993 and small cause suit was registered as SCC Suit No. 34 of 1993. The two sale deeds which defendants claimed to have got executed from two legal heirs of Sri Ambika Prasad Mishra, i.e., Smt. Rani and Smt. Uma Devi, are dated 21.06.1993. These instruments were executed before filing of small cause suit. Thus, before filing of suit defendants (having co-tenancy in shop in dispute) became co-owner of property in dispute.
9. A suit for eviction by a co-owner, without impleading all other co-owners is maintainable, provided other co-owners have no objection in seeking eviction of tenant but where such objection of co-owner is on record or where tenant himself is the co-owner, situation would be different.
10. In M/s Indian Umbrella Manufacturing Co. & Ors. Vs. Bhagabandei Agarwalla (Dead) by Lrs. Smt. Savitri Agarwalla & Ors., 2004(3) SCC 178 the Court recognized right of one co-owner to file suit without impleading other co-owners in the following manner:
"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 & Ors., (1976) 4 SCC 184; Dhannalal Vs. Kalawatibai & Ors., (2002) 6 SCC 16, 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."
11. Where the tenant himself is co-owner, obviously due to rival and mutually clashing interest, his consent cannot be assumed in favour of plaintiff co-owner (landlord) coming individually in the Court. In these circumstances, without impleading all the co-owners, suit was not maintainable. If plaintiffs sought to challenge validity of sale deeds executed in favour of tenants, i.e., the very factum on the basis whereof tenants are/were claiming status of co-owner, obviously such dispute could not have been decided by Small Cause Court but has to be examined in regular proceedings. With regard to maintainability of a suit where tenant has become co-owner before filing suit, the issue came up for consideration in Abdul Alim Vs. Sheikh Jamaluddin Ansari & Ors., 1998(2) ARC 614=JT 1998(7) SC 192. 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.
12. It was suggested that there is some contradiction in the dictum laid down in Abdul Alim (supra) and M/s Indian Umbrella Manufacturing Co. (supra) but I find no force therein. Both these matters have been examined by this Court in Munshi Lal (deceased) represented by LRs. Vs. Gopal Sao and others, Writ Petition No. 29301 of 2004, decided on 01.02.2013 and having considered the decisions in detail in para 20, this Court has said:
"20. It is in these facts and circumstances and proposition of law, referred to in both the judgments, I find that there no apparent conflict between the two authorities of Apex Court. The two judgments having been decided in different facts and circumstances with distinct principle of law stated therein."
13. It is worthy to notice at this stage that the dictum laid down in Abdul Alim (supra) has been followed by this Court in Ved Prakash Arya Vs. Additional District Magistrate (Supply), Rent Control and Eviction Officer, Varanasi, 2003 (2)ARC 797.
14. In view thereof, this Court has no hesitation in holding that small cause suit instituted by plaintiffs, having only 2/7 share in disputed property, without impleading other co-owners, which included tenant also, was not maintainable, without seeking division of property in dispute, by metes and bound. The challenge thrown by plaintiffs to sale deeds, relied on by tenants, could not have been examined in small cause suit, therefore, the remedy lies by institution of a regular suit.
15. In the result, the writ petition is allowed. The impugned revisional order dated 24.11.2006 is hereby quashed and the judgment of Trial Court dated 29.08.2005 is restored and confirmed.
16. No costs.
Order Date :- 06.03.2014 AK