2004 Supreme(SC) 9

2004(1) Supreme 350
SUPREME COURT OF INDIA
(From Gauhati High Court)
R.C. Lahoti & Ashok Bhan, JJ.
M/s. India Umbrella Manufacturing Co. and Ors. -Appellants
versus
Bhagabandei Agarwalla (Dead) by Lrs. Smt. Savitri Agarwalla and Ors. -Respondents
Civil Appeal No. 5357 of 1996
With
(C.A. No. 5358 of 1996)
Decided on 5-1-2004
Counsel for the Parties :
For the Appearing Parties : Vijay Hansaria, Rakesh Dwivedi, S.B. Sanyal, Sr. Advocates, P.I. Jose, Jayesh K.V., Sunil Kumar Jain, Rajiv Mehta and B. Aggarwala, Advocates.

IMPORTANT POINT
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.

Headnote:(i) RENT LAWS-Eviction petition-Doctrine of agency-Joint property-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-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 suit was filed in spite of their disagreement-Eviction suit 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-Suit once filed, rights of parties stand crystallised on the date of suit-Entitlement of co-owners to seek ejectment must be adjudged by reference to the date of institution of the suit-Only exception being when by virtue of a subsequent event entitlement of body of co-owners to eject the tenant comes to an end by act of parties or by operation of law. (Para 6)

       (ii) Transfer of Property Act, 1882-Section 111(d)-Doctrine of merger-Applicability-In order to bring the tenancy to an end merger should be complete-Interest of landlord in its entirety must come to vest and merge into the interest of tenant in its entirety-When part of interest of landlord or interest of one out of many co-landlords-cum-co-owners comes to vest in the tenant, there is no merger and tenancy is not extinguished. (Para 7)

       (iii) RENT LAWS-Constitution of India-Article, 142-Suit property consisting of a house and outhouses-Entire property including the land and building standing thereon owned by late LA -It was in possession of two tenants-Late LA made a gift of suit property in favour of her two daughters Bh and Bu -Tenants attorned in favour of two donee sisters-Fresh deeds of lease came to be executed between two landlords jointly and two tenants individually-Property was undivided and jointly owned by two sisters-Subsequently the two co-owners partitioned the land structure of house standing over the land not partitioned inasmuch as they mutually agreed to demolish the superstructure and then to construct their separate houses-Co-owner and co-landlady sisters joined together in filing suits for ejectment of two tenants-Dismissal of suit-Landlady Bu transferred her share in suit house to partners of appellant tenant- Bh alone filed appeals-Purchasers of Bu s share impleaded as parties filed an application submitting that they were not interested in ejectment of tenants so far as their share in the property was concerned-Allowing the appeal, District Judge directed that they were not liable to be ejected unless and until the house property has been partitioned between the two co-owners-Appeals-Appeals disposed of by exercising powers under Article 142 of the Constitution.

       Held : In order to cut short further litigation we are inclined to invoke the jurisdiction vesting in this Court under Article 142 of the Constitution. As noted in the earlier part of the judgment, the land standing below the structure has been partitioned. The need for partitioning the super structure standing over the land was not felt by the co-owner-landlords as the super structure was just debris in their assessment as they had decided to demolish the same and reconstruct the property separately on their respective pieces of land falling to their respective shares by virtue of partition. In the absence of the super structure having been actually partitioned it can be assumed that the super structure would go with the land and each of the co-owners would, in any case, be entitled to that part of the super structure which corresponds with the land underneath as fallen to the separate shares of the two. The decree for eviction in favour of the heirs of Bhagabandei (who has died during the pendency of the proceedings and whose heirs have come on record) as against the judgment-debtors Sekhar Chand Swami, Smt. Chandra Devi Swami and M/s. Bharat Stores & Agency shall be available for execution and the tenants shall be liable to be evicted from that part of the house and super structure as corresponds with the share of the land which has fallen to the share of Bhagabandei. During the pendency of this appeal, we had directed, vide order dated 11.9.2003, the parties to explore possibility of settlement, if any, and also to draw an agreed map of the property showing the house property divided into two portions indicated in separate colours, so as to point out that part of the property to which the heirs of Bhagabandei would be entitled and that part of the property to which Buchi Devi and now her transferees, pendente lite, would be entitled. Unfortunately, the parties have not been able to draw an agreed map. Both the parties have filed their separate maps. On a perusal of the two maps, we do not find any substantial difference therein. Out of the two maps we find the one drawn by M/s. Gautam Baruah & Associates on 26.9.2003 and filed by the plaintiff-landlords to be comparatively more accurate and clear. That map shall be transmitted to the trial Court and shall form part of the decree. (Paras 9 and 10)