In an eviction suit, the core issue is the jural relationship of landlord and tenant, and the determination of title does not ordinarily arise. The presence of a third party claiming ownership is not necessary for the decision of the question involved in the eviction proceedings.

JUDGMENT

Tushar Rao Gedela, J. (Oral)

[The proceeding has been conducted through Hybrid mode]

1. The petitioner challenges the order dated 06.03.2020 passed by the learned Trial court in Civil Suit no. 8293/2016 titled "Harshlata Aggarwal Vs. Prabhakar Sharma" whereby the learned Trial Court allowed the application under Order I Rule 10 CPC, 1908 filed by the respondent No.2 who is stated to be the brother of the petitioner herein.

2. Mr. Rohilla, learned counsel appearing for the petitioner submits that it is trite in the suit for eviction, the lis pending between the landlord and the tenant alone are the primary objective of the Trial Court to decide and the necessity of any third party does not arise.

3. Learned counsel submits that the essential question to be decided by this Court is "whether in an eviction suit, the co-owner or any other primary owner is the necessary party".

4. Mr. Rohilla, learned counsel submits that the petitioner has not given the instant suit property to the respondent No.1/tenant on rent and it was already on tenancy under the late father of the parties.

5. Learned counsel also submits that by virtue of the present suit, the only relief sought is of eviction and there is no dispute raised in respect of the title of the suit property.

6. Learned counsel relies upon the Codicil at page 49 of the present petition which in his submission is a Will registered by late father in favour of the parties, i.e. petitioner as well as the respondent No.2 herein.

7. Learned counsel submits that as per para 12 of the Codicil/Will dated 10.12.2009, "the petitioner was entitled to hold, possess and enjoy this property to the exclusion of other legal heirs till she is alive" and on that learned counsel submits that the right so conferred by virtue of the Will/Codicil, the petitioner has filed the instant eviction petition against the respondent No.1/tenant.

8. Learned counsel submits that it is a well settled law that even in case of admitted co-owners, the one of the co-owners can maintain a suit for eviction against the tenant.

9. Learned counsel on that basis relies upon the judgments rendered by the Hon'ble Supreme Court in K. K. Handique Vs. Member, Board of Agriculture Income Tax, Assam reported as AIR 1966 (SC) 1191 and invites the attention of this Court to para 3 where the expression "hold" has been interpreted. On that basis, learned counsel submits that Hon'ble Supreme Court has held that meaning of hold would encompass within in itself all rights which would ordinarily be obtained upon owner of the property. Learned counsel submits that the word expressed in the Codicil/Will makes it clear that during her lifetime, the petitioner was given the liberty to enjoy the property in any manner whatsoever, which the petitioner deems fit.

10. Learned counsel further relies upon the judgment of Coordinate Bench of this Court in Arvinder Kaur Sethi Vs. Akshay Chabra & Ors. reported as (2012) 194 DLT 423, particularly para 3 which in his submission lays down the law that in a suit for recovery of possession by the landlord against the tenant, the determining factor was the relationship between the landlord and tenant and not the determination of title between two co-owners.

11. Learned counsel to buttress his arguments also relies upon the judgment of Hon'ble Supreme Court in "J. J. Lal Pvt. Ltd. Vs. N. M. Murali And Anr." reported in AIR 2002 SC 1061 wherein the Hon'ble Supreme Court had also dismissed the applications filed on behalf of original owners, i.e., Municipal Corporation, under Order I Rule 10 CPC, 1908 for being not maintainable so far as the determination of the relationship of landlord and tenant is concerned.

12. On the basis of the aforesaid submissions and judgment, learned counsel submits that the learned Trial Court had exercised the jurisdiction which was not vested in it and has committed a material irregularity and judicial impropriety by overlooking the settled law on this issue.