Ashraf C.M v. Anil Kumar N

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **TUESDAY, THE 28TH DAY OF MARCH 2017/7TH CHAITHRA, 1939** **RCRev..No. 111 of 2015 () --------------------------** **AGAINST RCA 6/2014 of RENT CONTROL APPELLATE AUTHORITY (DISTRICT JUDGE),KASARAGOD DATED 12-03-2015** **AGAINST RCP 4/2014 of RENT CONTROL COURT (PRL.MUNSIFF), KASARAGOD DATED 22-07-2014** ## **REVISION PETITIONER/APPELLANT/PETITIONER:** **-----------------------------------------** **ASHRAF C.M S/O.C.H MUHAMMED KUNHI,AGED 38 YEARS R/AT PAKYRA HOUSE,UDUMA P.O, PALLIKKARA VILLAGE, KASARGOD DISTRICT** ## **BY ADV. SRI.KODOTH SREEDHARAN** ## **RESPONDENT/RESPONDENTS/RESPONDENT:** **----------------------------------** **ANIL KUMAR N S/O N KUNHIRAMAN,AGED 40 YEARS R/AT DOOR NO KMC X/29A(19) NULLIPADY, KASARAGOD KASBA VILLAGE, KASARAGOD DISTRICT 671121** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 28-03-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **K.HARILAL & RAJA VIJAYARAGHAVAN, V., JJ. -----------------------------------------R.C.R. No.111 of 2015 ----------------------------------------Dated this the 28[th] day of March, 2017** **O R D E R -----------** ## _**Raja Vijayaraghavan,J.**_ 1.Disheartened by the concurrent orders of dismissal of the Petition filed by him under Section 11(3) of the Kerala Buildings (Lease and Rent Control) Act, 1965, (hereinafter referred to as 'the Act' for brevity), the landlord has invoked the revisional powers of this Court as a last ditch effort. - 2.The petition schedule shop room, from which eviction of the tenant was sought, formed part of a shopping complex by name Singapore Complex. The said premise was owned by the father of the petitioner, late Sri C.H.Muhammed R.C.R. No.111/2015 2 Kunhi. He had several children and after his death, the property and the buildings devolved on his legal heirs. - 3.The petitioner wanted to evict the respondent on the ground of own use and occupation. The need set up by the petitioner was to commence a grocery business in the petition schedule premise. He has no other shop rooms in his possession. He also contended that the tenant was not entitled to any protection under the Act . - 4.The tenant came out with a fitting response. He denied the bona fides of claim raised. He claimed protection under the Act and according to him, the stratagem of the landlord was to secure his eviction on untenable grounds. He challenged the competence of the petitioner in filing the petition without the junction of the other co-owners. - 5.Based on the pleadings necessary issues were framed by the Rent Control Court. The very first issue was whether R.C.R. No.111/2015 3 the petition is liable to be dismissed for want of consent from other co-owners. 6.Evidence comprised of the oral evidence let in by the landlord and the tenant. The ace up the sleeve of the tenant was the brother of the petitioner, who was examined as RW2. To the dismay of the petitioner, RW2 entered the box and stated that he is a co-owner and was having 1/6[th] share over the petition schedule building. He blurted out in no unmistakable terms that he had not consented to filing the eviction petition and went on to oppose the bona fides of the claim of the petitioner in seeking eviction of the tenant. - 7.The Rent Control Court, after evaluating the contentions, concluded that the eviction petition cannot be maintained in view of the lack of consent from the other co-owners. The Appellate Authority re-appreciated the matter and passed a considered judgment confirming the findings of R.C.R. No.111/2015 4 the Rent Control Court . 8.The learned counsel appearing for the petitioner, in his attempt to overturn the concurrent findings, would contend that RW2 is none other than the brother of the petitioner and he was not in good terms with the petitioner. According to the learned counsel, RW2 had executed a power of attorney in favour of Hakkim and Hashim, who incidentally are also brothers, giving his consent to file the petition. If that be the case, the rejection of the petition was unjustified. 9.We have considered the submissions advanced. - 10.There cannot be any doubt that a co-owner can maintain a petition against the tenant as 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. In **Sri Ram Pasricha v. Jagannath and** R.C.R. No.111/2015 5 **Others** [1976 (4) SCC 184], the Supreme Court has held that a co-owner is as much an owner of the entire property as any sole owner. 11.Relying on jurisprudential principles set out in Salmond, the Apex Court in **Sri Ram Pasricha** (supra) held as under: "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..." 12.Thus we have to agree with the counsel for the petitioner that the petitioner could have maintained a petition in his own right. However, the issue here is whether the petition can be maintained when the other co-owner comes up with a contention that he had not consented to file the petition . R.C.R. No.111/2015 6 13.The Courts below relied on a catena of precedents to hold that the petition is liable to be rejected in view of the objection raised by RW2. The courts below finally concluded by holding that the petition can be maintained so long as the other co-owners do not object to the claim raised by one of the co-owners. We are of the view that the findings arrived at by the courts below are unexceptionable and founded on strong reasons. - 14.Their lordships of the Supreme Court in **India Umbrella** **Mfg. Co. V. Bhagabandei Agarwalla** [2004 (3) SCC 178] had occasion to observe that one of the co-owners of an item of property can maintain a petition for eviction without the junction of the other co-owners. This was on the basis of the principles contained in the doctrine of agency. The petition is filed in his own right and as an agent of the co-owners. The consent of the co-owners is assumed to be taken unless it is shown that the other R.C.R. No.111/2015 7 co-owners were not agreeable to eject the tenant and the petition was filed in spite of their disagreement. The same view was reiterated by the Apex Court in **Mohinder Prasad Jain v. Manohar Lal Jain** [2006 (2) SCC 724]. 15.In the instant case, the co-owner has tendered evidence against the petitioner and he has unequivocally deposed that the petition has been filed without his knowledge and consent. He has asserted that he does not wish or desire that the tenant should be ejected. This, according to us, will stand in the way of the petitioner as an insurmountable obstruction. We find merit in the contention of the respondent that the petitioner cannot sustain the petition without the junction of the co-owners. 16.Having regard to the well reasoned concurrent findings and reasoning recorded by the Rent Control Court and the Appellate Authority, we are of the opinion that the impugned judgment warrants no interference in as much R.C.R. No.111/2015 8 as no illegality, irregularity or impropriety could be shown before us by the petitioner/landlord. For the above stated reasons, we find no merit in this Revision Petition and the same is dismissed. **Sd/-** **K.HARILAL, JUDGE** **Sd/-** **RAJA VIJAYARAGHAVAN, V. JUDGE** vps