1986 Supreme(Bom) 316

IN THE HIGH COURT OF BOMBAY
Sharad Manohar, J.
Achyut Amrit Rasal....Appellant.
Versus
Shrikrishna Vyankatesh Chincholkar others....Respondents
First Appeal No. 463 of 1976, decided on 27-11-1986.
Advocates appeared :
M.A. Deshpande, for appellant.
K.J. Abhyankar, for respondent.

Headnote:Section 105 -Evidence Act-Section l66-Entitlement of filing the suit by a co-owner-Has right to one co-owner without impleading the other-No adverse possession to be claimed against landlord.

       The only question that reman is whether Mr. Deshpandes plea about the absence of the exclusive title vesting in the plaintiff can be accepted for non-suiting the plaintiff. Mr. Deshpande does not deny the following position of law viz. that if "A" landlord dies leaving behind three heirs "B", "C" and "D", "B" become one of the co-owners and such co-owner can file a suit against "A" tenant "X" Mr. Deshpande was not interested in disputing the proposition in that if such a suit is filed by "B" even without impleading "C" and "D", his other co-owner, in such a suit "B" would be deemed to have the power to file suit, for possession against the tenant, as the agent or representative of his co-owners. In such a case "B" does not claim title exclusively for himself. He does not deny the rights of his other co-owners. A position that the other co-owner have allowed him to file suit on their behalf for recovery of possession from the tenant can be readily inferred or conceived of in such a case.

       It is on this document produced in these proceedings at Exhibit 116, that Mr. Deshpandes contention is based viz. that the property must really have belonged not only to Shridhar alone but also to his other brother Damodar. The argument is that plaintiff Shrikrishna may be entitled to file suit on behalf of the co-owners whose title he did not deny; but he is not entitled to file suit on behalf of the other co-owners viz. the heirs Damodar as also the heirs of Ranganath whose title he must by necessary implications be deemed to be denying. Plea is that when plaintiff sets up exclusive title in himself by virtue of the will of his father, he is in fact contending that Vyankatesh had title to the exclusion of all other coparceners and their heirs. He is therefore, setting a title adversely against the other co-owner and if he does such a thing, he cannot be said to be representing the interest of other co-owners whose title is denying and he cannot claim agency on their behalf to file the suit.

       Now in such a case, when one of the co-owners claims exclusive title in himself, it may be that he may create tenancy in favour of the tenant all by himself and in such a case even though there are other co-owners of the property leased by him, so far as the tenant is concerned, he would not be entitled to deny the title of the persons from whom he got the tenancy, merely on the ground that in that property some other persons had interest as co-owners. Section 116 of the Evidence Act creates a clear bar against such tenant from pleading any such absence of title against the person from whom he got the tenancy. But in the case such as the present one, the tenancy is taken by the defendant not from the plaintiff but from the plaintiffs predecessor-in-title. In such a case it would be open for the tenant to contend that not only the plaintiff but there are other person who are having interest In the property leased to him and it would be possible for him to contend that the suit by just one of the co-owners against him would not lie if the plaintiff co-owner cannot make out a case of agency on behalf of the co-owner whose title he has expressly or impliedly denied.