A regular second appeal by a tenant against an eviction decree. The Court held that a co-owner can file a suit for eviction without the consent of other co-owners. The appeal was dismissed with costs, and the First Appellate Court's decree was confirmed.
Regular Second Appeal dismissed with a cost of Rs. 50,000 payable to the Legal Services Authority.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF NOVEMBER, 2024 BEFORE
THE HON'BLE MRS JUSTICE K.S. HEMALEKHA REGULAR SECOND APPEAL NO. 1596 OF 2017 (EA)
BETWEEN:
BOTH ARE RESIDENT OF NO.40-1, ARALIMARADAPALYA, SIRA GATE, TUMKUR.
… APPELLANTS
(BY SRI. M. V. V. RAMANA AND SRI N. SURESH, ADVOCATES)
AND:
Digitally signed by MAHALAKSHMI B M Location: HIGH COURT OF KARNATAKA
… RESPONDENTS (R1- NOTICE SERVED; SMT.NALINI K, ADVOCATE FOR SRI. S. K. VENKATA REDDY, ADVOCATE FOR C/R2) THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 30.5.2017 PASSED IN RA NO.18/2016 ON THE FILE OF THE II ADDL. SENIOR CIVIL JUDGE AND JMFC, TUMAKURU, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 9.11.2015 PASSED IN OS NO.1151/2013 ON THE FILE OF THE I ADDL. CIVIL JUDGE AND JMFC, TUMKUR.
(R1- NOTICE SERVED; SMT.NALINI K, ADVOCATE FOR SRI. S. K. VENKATA REDDY, ADVOCATE FOR C/R2)
NC: 2024:KHC:46230 RSA No. 1596 of 2017
THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MRS JUSTICE K.S. HEMALEKHA
ORAL JUDGMENT
The defendant is before this Court in this regular
second appeal assailing the judgment and decree in R.A. No.18/2016 dated 30.05.2017 on the file of the II Additional Senior Civil Judge and JMFC, Tumakuru (hereinafter referred to as the ‘First Appellate Court’ for short), whereby, the suit of the plaintiffs for eviction was decreed directing the defendant to vacate the suit property, by reversing the judgment and decree dated 09.11.2015 in O.S.No.1151/2013 on the file of the I Additional Civil Judge and JMFC, Tumakuru (hereinafter referred to as the ‘Trial Court’ for short).
2. This Court while admitting the appeal has framed the following substantial questions of law on 23.04.2018;
“i) Whether the conclusion of the Lower Appellate Court that the plaintiffs being co-owners of suit
scheduled property could file eviction suit while there are said to be in joint possession of the suit schedule property under Hindu law is correct?
ii) Whether the First Appellate Court was in error in reversing the judgment and decree of the trial Court?”
3. Learned counsel Sri.M.V.V. Ramana and learned
counsel Sri.N. Suresh appearing for the appellants and learned counsel Smt.Nalini K., for learned counsel Sri.S.K.Venkata Reddy appearing for the respondent have been heard on the substantial questions of law framed by this Court.
4. Brief facts of the case are that;
Suit for eviction, the case of the plaintiffs is that the
suit property is the joint family property of plaintiffs and their father B.S.Jayashankar, having received under the partition effected on 06.02.1999 between the father of the plaintiffs and his brothers and accordingly, the katha of the suit property stands in the name of father of the plaintiffs. That during the lifetime of the defendant’s father-Nanjaiah, the plaintiff’s father let out the suit
property on a monthly rent of Rs.15/-, and during the lifetime of the father of the defendant, he was paying rent to the father of the plaintiffs. After the death of father of defendant Nanjaiah, the defendant continued as a tenant in the suit property, but was irregular in paying the rents and hence, plaintiffs father, demanded the defendant to vacate the suit premises, having failed to vacate the premises, legal notice of termination was issued to the defendant, which remained unclaimed and hence, the suit for eviction.
5. Suit summons were issued to the defendants, as the notice could not be served in usual course, substituted service by way of paper publication was taken, defendant remained absent and hence, was placed ex-parte .
6. Plaintiff No.1 examined himself as PW.1 and marked documents at Ex.P.1 to Ex.P.13 and accordingly, the trial Court on considering the material, oral and documentary evidence arrived at a conclusion that the suit
property is standing in the name of Jayashankar, who is the father of the plaintiffs and the plaintiffs have not produced any material to show that they are the owners of the suit property and dismissed the suit of the plaintiffs on the ground of locus-standi .
7. Aggrieved the plaintiffs preferred appeal before the First Appellate Court. The First Appellate Court, while appreciating the entire oral and documentary evidence, independently, arrived at a conclusion that the suit by a co-owner is maintainable and it is not necessary for the co-owner to take consent of other co-owner and reversed the judgment and decree of the trial Court, decreeing the suit of the plaintiffs directing the defendant to hand over the vacant possession of the suit property within three months from the date of the order. Aggrieved, the defendant is before this Court.
8. Learned counsel appearing for the appellant
vehemently contends that the conclusion arrived by the First Appellate Court that the plaintiffs being the co-owner
of the suit property could file a eviction suit, is unsustainable and contrary to the settled propositions of law.
9. Learned counsel submits that the appellant has filed I.A. No.1/2018 for production of additional documents, which is a sale agreement entered into between the defendant’s father and father of the plaintiffs on 04.05.1981 and under the sale agreement, the plaintiffs’ father has received the entire amount and handed over possession of the suit property, that the father of the defendant is in possession of the suit property even prior to the sale agreement. Learned counsel submits that the said agreement has a material bearing on the decision of the case and will be a substantial question of law, and the appellant be permitted to produce the said agreement, which has direct bearing on the right of the appellant. In support of his contentions, learned counsel placed reliance on the following decisions:
i. Chandrabhan (Deceased) Through Lrs. and
others Vs. Saraswati and others1
ii. Pankaj Bhargava and another Vs. Mohinder
Nath and another2 .
10. Further it is submitted by the learned counsel for the appellant that the trial Court and the first Appellate Court have not followed the correct procedure relating to service of summons on the defendant and thereby, violated the principles of natural justice.
11. Per contra , learned counsel appearing for the respondents justified the judgment and decree of the First Appellate Court and submits that, the defendant was in possession of the suit property as a tenant, the trial Court has erroneously dismissed the suit of the plaintiffs on the ground that a co-owner could not maintain the suit contrary to the settled proposition of law that one of the co-owners can file a suit for eviction of a tenant in the
1 (2022) SCC Online SC 1273
2 (1991) 1 SCC 556
property generally owned by the co-owners and the First Appellate Court has rightly appreciated and held that the suit of the plaintiff is maintainable and rightly directed the defendant to vacate the suit property.
12. Learned counsel submits that the notice was duly served on the defendant and the defendant has willfully not made his presence neither before the trial Court nor before the First Appellate Court and he was a fence watcher and the defendant has totally abused the process of law and for the first time, before this Court, he cannot contend that an opportunity was not been given to the defendant to substantiate his contentions. It is submitted that the contentions raised by the appellant regarding the procedure relating to service of summons, is not available to be raised in the second appeal and seek to set aside the order of the trial Court. That the alleged agreement sought to be produced under I.A.No.1/2018, is not a material document to be considered in the present second appeal, as the agreement is of the year 1981 and if
the appellant wants to contend that he is an agreement holder, there is no suit filed by the appellant seeking specific performance of contract and in the absence of the same, the documents sought to be produced is not relevant for adjudication of dispute on hand. The arguments advanced by the appellant’s counsel apart from the substantial question of law, is not a question of law to be considered by this Court.
13. This Court has carefully considered the rival contentions urged by the learned counsel for the parties and perused the material on record.
14. Suit by one of the co-owner for eviction, the plaintiffs contended that the suit properties stands in the name of Jayashankar, who is none other than the father of the plaintiffs as is evident from Ex.P13, under which document, the suit property fell to the joint share of the plaintiffs and their father Jayashankar. The Trial Court though arrived at a finding that the suit property standing in the name of Jayashankar, who is the father of the
plaintiff and the suit property having fallen to the share of father of the plaintiffs, however, goes to the extent of holding that the plaintiffs have not placed any material to show that they are the owners of the suit property and the plaintiffs have no locus-standi to file the present suit against the defendant seeking eviction, contrary to the settled proposition of law that one of the co-owner can file a suit for eviction of a tenant in the property generally owned by the co-owners. The Apex Court in the case of Mohinder Prasad Jain Vs. Manohar Lal Jain3 has observed that a suit filed by a co-owner, thus, is maintainable in law, it is not necessary for the co-owner to show before initiating the eviction proceedings 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. The Apex Court at paragraph Nos.10 and 11 held as under:
3 AIR 2006 SC 1417
NC: 2024:KHC:46230 RSA No. 1596 of 2017
“10. This question now stands concluded by a decision of this Court in India Umbrella Manufacturing Co. & Ors. v. Bhagabandei Agarwalla (Smt.) & Ors. [(2004) 3 SCC 178] wherein this Court opined:
“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 co-owners. (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 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. 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 proceedings 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 respondent was required to show that he had experience in running the business in Ayurvedic medicines, has to be stated to be rejected. There is no law which provides for such a precondition. It may be so where a licence is required for running a business, a statute may prescribe certain qualifications or preconditions without fulfilment whereof the landlord may not be able to start a business, but for running a
wholesale business in Ayurvedic medicines, no qualification is prescribed. Experience in the business is not a precondition 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.”
15. Perusal of the said decision, the law is well settled that a co-owner has a right to file a suit for eviction against the tenant and only if a co-owner objects then the maintainability of the suit would be a relevant fact. A coowner is as much an owner of the property as any sole owner of a property is. The Apex Court way back in the year 1976 in the case of Sri Ram Pasricha Vs. Jagannath and others4 has held at paragraph No.27 as under:
“ 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
4 (1976) 4 SCC 184
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 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 the acknowledged landlord of the defendants. ”
16. The Apex Court in the case of FGP Limited Vs.
Saleh Hooseini Doctor and another5 2009 SCC Online
SC 1643 has held at paragraph No.37 and 44 as under:
“ 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 co-owners 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
5 (2009) 10 SCC 223
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 the rule of law which is codified in Section 116 of the Evidence Act.
44. The principles which have been affirmed in Mohinder Prasad Jain 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 co-owners. In this matter, the consent of the 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, p. 727 of the Report.) It is nobody’s case here that the other co-owners are objecting to the filing of the suit in question. ”
17. The law being settled that one of the co-owner can alone maintain a suit for ejectment of the tenant and it is not open for 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.
18. In the instant case, the plaintiffs are co-owners, which is undisputed by the appellant in the present appeal. The substantial question of law raised by this Court is answered holding that the plaintiffs being co-owners of the suit property could file eviction suit and the First Appellate Court was justified in decreeing the suit of the plaintiffs for eviction.
19. Regarding the suit summons not properly served on the defendant, this Court has looked into the order sheet of the trial Court which indicates that the suit summons was ordered on 07.12.2013 through RPAD. On 24.02.2014, the suit summons returned as not-served. Again the suit summons was ordered through RPAD. Further on 09.04.2014, the notice was again returned as not-served on the defendant and hence, steps were directed to be taken. Pursuant to which on 28.06.2014, suit summons was again ordered to the defendant by RPAD and the summons was received back stating unserved, on 15.07.2014, the summons were reissued, it
is only on 25.04.2015 after taking suit summons on the defendant for nearly three times, an application came to be moved under Order V Rule 20(1a) of CPC, seeking paper publication and consequently, the application was allowed and paper publication was ordered. On 06.07.2015, memo along with the paper publication was filed and the defendant was called out and suit summons to defendant was held to be served through paper publication and service was held sufficient placing him ex-parte .
20. As indicated above, perusal of the order sheet clearly reveals that the Trial Court has adopted correct procedure relating to service of summons on the defendant and there is no violation of principles of natural justice.
21. Even before the First Appellate Court, the defendant was placed ex-parte, the appellant is unable to substantiate before the Court that when before the trial Court and the First Appellate Court, he was placed ex-
parte, how this regular second appeal is filed well within time and it is necessary to state here that the defendant was a fence watcher and only the decree was passed against him, he comes to this Court in this second appeal stating that there is a sale agreement in his favour executed by Jayashankar in the year 1981, the agreement is only on a paper and the appellant has not made any efforts to seek for execution of the alleged agreement, making this Court to form an opinion that the appellant is trying to protract the proceedings initiated by the land lord. The decision placed reliance by the learned counsel appearing for the appellant is distinguishable and not applicable to the present facts. This is a perfect case where this Court finds that the appellant has abused the process of law and imposition of cost is a must in such proceedings.
22. Learned counsel though tries to contend before this Court that Jayashankar has executed an agreement of sale in favour of the appellant’s father in the year 1981, it
is relevant to state here that seeking to execute the agreement of sale, the defendant/ appellant has not filed any suit for specific performance of contract. Therefore, the application-I.A.No.1/2018 filed by the appellant seeking to adduce additional evidence needs to be out rightly rejected and accordingly, I.A.No.1/2018 is rejected.
Accordingly, this Court pass the following:
ORDER
Sd/-
_____________________ (JUSTICE K.S. HEMALEKHA)
PJ
LIST NO.: 19 SL NO.: 1
3 issues framed by the court
Whether a co-owner can maintain a suit for eviction of a tenant in jointly owned property?
Whether the First Appellate Court was in error in reversing the judgment of the Trial Court?
Whether additional evidence regarding a 1981 sale agreement should be admitted in a second appeal?
Colour shows how this judgement treated each authority
Chandrabhan (Deceased) Through Lrs. and others Vs. Saraswati and othersReferred
Chandrabhan (Deceased) Through Lrs. and others Vs. Saraswati and others (2022) SCC Online SC 1273 · Who else cites this
Pankaj Bhargava and another Vs. Mohinder Nath and anotherReferred
Pankaj Bhargava and another Vs. Mohinder Nath and another (1991) 1 SCC 556 · Who else cites this
Mohinder Prasad Jain Vs. Manohar Lal JainRelied on¶14
Mohinder Prasad Jain Vs. Manohar Lal Jain AIR 2006 SC 1417 · Who else cites this
India Umbrella Manufacturing Co. & Ors. v. Bhagabandei Agarwalla (Smt.) & Ors.Referred¶14
India Umbrella Manufacturing Co. & Ors. v. Bhagabandei Agarwalla (Smt.) & Ors. (2004) 3 SCC 178 · Who else cites this
Sri Ram Pasricha v. JagannathRelied on¶15
Sri Ram Pasricha v. Jagannath (1976) 4 SCC 184 · Who else cites this
Dhannalal v. KalawatibaiReferred¶14
Dhannalal v. Kalawatibai (2002) 6 SCC 16 · Who else cites this
FGP Limited Vs. Saleh Hooseini Doctor and anotherRelied on¶16
FGP Limited Vs. Saleh Hooseini Doctor and another (2009) 10 SCC 223 · Who else cites this
2 provisions across 1 enactments
Sri Umesh Alias N. Umesh S/o. Late Ninjaiah Dead By His Lrs. And Others
Sri. T J Basavaraju
Sri. T J Anil Kumar
K.S. HEMALEKHA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
