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2017 Supreme(SC) 1881
SUPREME COURT OF INDIA
Ranjan Gogoi, Navin Sinha, JJ.
Mangal Builders & Enterprises Limited & Anr. – Appellants
Versus
Williamson Magor & Company Ltd. & Anr. – Respondents
Petition(s) for Special Leave to Appeal (C) Nos. 9616-9617/2015 (Arising out of impugned final judgment and order dated 12/11/2014 in APOT No. 608/2014 and APOT No. 609/2014 in CS No. 198/2013 passed by the High Court of Calcutta)
Decided on : 06-04-2017
For the Appellant : Mr. C. Aryaman Sundaram, Sr. Adv. Mr. Amarjit Singh Bedi, Adv. Mr. Aj ay Gaggar, Adv. Mr. Varun Chandiok, Adv. Mr. Sri Satya Mohanty, Adv. Ms. Rohini Musa, Adv. Mr. Zafar Inayat, Adv. Mr. Abhishek Gupta, Adv. Ms. Akanksha Kaul, Adv. Mr. Apoorva, Adv,
For the Respondent: Mr. Jaideep Gupta, Sr. Adv. Mr. Padam Khaitan, Adv. Mr. Shabyashachi Patra, Adv. For M/s. Khaitan & Co. Mr. Sanjib Sen, Sr. Adv. Mr. Srenik Singhvi, Adv. Mr. Shreyans Singhvi, Adv. Ms. Ekta Mehta, Adv. Mr. Saurabh Trivedi, Adv.
A suit for eviction filed by a co-owner is not maintainable when another co-owner objects to the eviction, as the law provides a remedy of partition for co-owners seeking eviction.
Headnote:
The judgment does not specifically refer to any acts or sections.
Fact of the Case:
The petitioners, two out of three co-owners, filed a suit for eviction of the respondent No.1-tenant. The third co-owner objected to the eviction. The trial court held that the objection should be decided during the trial. The High Court, however, held the suit to be not maintainable. The petitioners appealed to the Supreme Court to challenge the High Court's order.
Finding of the Court:
The issue of maintainability of a suit filed by a co-owner in the absence of objection from another co-owner has not been considered by the Supreme Court before. The closest decision on the point is in the case of India Umbrella Manufacturing Co. vs. Bhagabandei Agarwalla, which does not fully answer the question. The concept of co-ownership of immovable property is discussed, and it is argued that the very concept of co-ownership would militate against the maintainability of the suit for eviction against a tenant when a co-owner objects to the eviction.
Ratio Decidendi: The Supreme Court disagrees with the view expressed by the Patna High Court in Sharfuddin vs. Bijbi Khatija, which held that a suit filed by a co-owner who does not consent to eviction is maintainable. The Supreme Court holds that the law provides a remedy of partition for co-owners seeking eviction, and this remedy should not be ignored.
Result: The Supreme Court affirms the decision of the High Court and dismisses the petitions for special leave to appeal against the order of the High Court.
ORDER
1. In view of the elaborate arguments that have been advanced at the Bar we deem it proper to support our conclusions, which is adverse to the petitioners, with our reasons therefor,
2. The petitioners are two out of three co-owners who had instituted a suit for eviction of the respondent No.1-tenant. The third co-owner (Respondent No. 2 here in) , who is the defendant No. 2 in the suit, in his written statement, objected to the eviction and explicitly stated that the suit is without its consent. The trial Court while considering the application under Order VII Rule 11 of the Code of Civil Procedure filed by the defendant No. 2 thought it proper to hold that the objection raised with regard to maintainability should be decided in the course of the trial of the suit.
3. In appeal, the High Court took a different view holding the suit to be not maintainable. Hence, these petitions for special leave to appeal to challenge the said order.
4. We have heard the learned counsels for the parties.
5. The issue of maintainability of a suit in the facts noticed above apparently has not fallen for consideration before this Court. What has been decided and it will not be necessary to refer to the long line of cases on the point is with regard to the maintainability of a suit filed by a co-owner in the absence of any objection of another co-owner(s). Such a suit has been held to be maintainable. What would be the position if a co-owner objects, as in a present case, is the question that calls for an answer in the present petitions.
6. The closest decision on the point is in the case of India Umbrella Manufacturing Co. And Others vs. Bhagabandei Agarwalla (Dead) by LRs. Savitri Agarwalla(Smt) And Others, (2004) 3 SCC 178 which, however, does not answer the question fully as the objection of the co-owner in India Umbrella (supra) was in the course of the trial of the suit and in a situation where the suit property had changed hands.
7. The concept of co-ownership of immoveable property need to hardly detain the Court. Every co-owner has ownership of the entire property which in absence of any partition must be understood to extend to every inch of the property.
8. The very concept of co-ownership, in the absence of any partition, would militate against the maintainability of the suit for eviction against a tenant, where the tenant is admittedly in possession of the property which is owned by the co-owner who objects to the eviction.
9. The decision of Patna High Court in Sharfuddin and Others vs. Bijbi Khatija and Another AIR 1988 Patna 58 has been cited by Shri C.A. Sundaram, learned senior counsel, to persuade the Court that the view expressed therein may serve as a foundation for laying down the law upholding the maintainability of a suit filed in a situation where a co-owner does not consent and, in fact, objects to the decree of eviction sought by the other co-owner. It is contended that such a view would be a reasonable and logical extension of the law laid down by this Court with regard to maintainability of suit filed by a co-owner, where no objection is raised by another co-owner.
10. Having read and considered the judgment of the full Bench of the Patna High Court in Sharfuddin (supra) , we are unable to agree with the views expressed therein. The Patna High Court seems to have taken into account the power of veto which would be vested in a co-owner if a suit for eviction to which he objects is held to be not maintainable. The issue with regard to partition which is an option open to the co-owners who seek eviction was sought to be answered by the High Court by holding the aforesaid remedy to be cumbersome. When the law provides a remedy which the aggrieved party can avail of, the same cannot, in our considered view, be ignored only on the ground that asking the parties to avail of the said remedy would be relegating them to another round of litigation.
11. For the aforesaid reasons, we are inclined to take the view that the decision ren
