TMI Blog1976 (8) TMI 162X X X X Extracts X X X X X X X X Extracts X X X X ..... hereinafter to be referred to as the defendants). The tenancy was in respect of a part of the premises No. 221/1, Rash Behari Avenue, Calcutta, being the entire second floor of the building. The tenancy commenced some time in 1946 and Bhagat Ram Pasricha promised to vacate the said premises within March 31, 1947 and positively after March 31, 1948. Bhagat Ram Pasricha, however, did not vacate and died on February 18, 1960, leaving behind the defendants as his heirs. The plaintiff is only a co-sharer owner of the suit premises being one of the heirs of his father late Motilal Sen who, originally owned the property. The plaintiff instituted a suit for eviction of the defendants in December 1962 on the twin pleas of default in payment of rent and reasonable requirement of the premises for his own occupation as well as for the occupation of the members of the joint family consisting of his mother and his married brother. The suit was contested by the defendants. The trial court decreed the suit on both the grounds. On the question of reasonable requirement the trial court held that the plaintiff being only a co-sharer owner cannot be said to be the owner within the meaning of sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 3) also emphasised upon this part of the case while adopting the arguments of Mr. Tarkunde. Mr. Desai, on the other hand. contests this proposition and submits that the decision of the Division Bench is correct. Mr. Tarkunde referred to certain decisions in support of the submission that a suit by one of the co-sharers for eviction of a tenant has always been held to be incompetent. Counsel relied upon the decision in Bollye Satee and another v. Akram, Ally and other. (1879) I.L.R. 4 Cal. 961 This was a case in which it was held that a lessee of a jalkar cannot be ejected by a suit brought by one only of the several proprietors all of whom had granted the lease. This case, with its own facts, is, therefore, of no aid in the present controversy. In Kattusheri Pishareth Kanna Pisharody v. Vallotil Manakel Narayanan Somayajipad and others, (1878-81) I.L.R. 3 Mad. 234 the suit was brought by the plaintiffs on behalf of an association (sabha) to recover certain lands demised by the sabha. It was held that all the co-owners must join in a suit to recover property unless the law otherwise provides. This decision will again be of no assistance to the appellant. In Balakrishna Sakha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was not done. Secondly, the relation be- tween the parties being that of landlord and tenant, only the landlord could terminate the tenancy and institute the suit for eviction. The tenant in such a suit it estopped from questioning the title of the landlord under section 116 of the Evidence Act. The tenant cannot deny that the landlord had title to the premises at the commencement of the tenancy. Under the general law, in a suit between landlord and tenant the question of title to the leased property is irrelevant. It is, therefore, inconceivable to throw out the suit on account of non-pleading of other co-owners as such. Being faced with this position counsel submits that since the requirements are found to be of the co-owners, the suit cannot be decreed in their absence. This is a repetition of the first submission in a different form. Counsel relied upon Mclntyre and another v. Hardcastle (1848) 1 All E.R. 696. The English rule laid down in that decision is 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, according to the decision, m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other v. Gulamnabi Jamalbhai Motorwala and others A.I.R.1973 Guj. 131. and read to us the following passage at page 146: It is, therefore, clear that the rule that a co-owner may maintain an action to eject a trespasser without joining other co-owners in such action can have no application where a co-owner seeks to evict a tenant who is in possession of the property after determination of the lease. Such a tenant can be evicted only by an action taken by all co-owners But this rule is not applicable in the present case as would appear from the decision itself. The Gujarat decision at para 10 of the judgment excludes two categories described therein and the rule of estoppel applies to these two categories. The present case, even according to this decision, fails under the excepted category. Before we come to the real question at issue we may turn to section 13(1)(f) of the Act as it was at the material time: Sec. 13. protection of tenant against eviction- (1) Notwithstanding anything to. the contrary in any other law, no order or decree for the recovery of possession of any premises shall be made by any Court in favour of the landlord against a tenant except on one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same thing vested in them. This may happen in several distinct ways, but the simplest and most obvious case is that of co-ownership. Partners, for example, are co-owners of the chattels which constitute their stock-in trade of the lease of the premises on which their business is conducted, and of the debts owing to them by their customers. It is not correct to say that property owned by co-owners is divided between them, each of them owning a separate part. It is an undivided unity, which is vested at the same time in more than one person . The several ownership of a part is a different thing from the co-ownership of the whole. So soon as each of two co-owners begins to own a part of the thing instead of the whole of it, the co-ownership has been dissolved into sole ownership by the process known as partition. Co- ownership involves the undivided integrity of what is owned . 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 he 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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