A co-owner can maintain a suit for possession against a tenant without joining other co-owners, affirming that non-joinder does not render the suit bad in law.

JUDGMENT :

Sushil Kukreja, J.

The instant appeal, under Order 43 Rule 1(u) of the Code of Civil Procedure, has been maintained by appellant, who was the defendant before the learned Trial Court, against the order dated 19.04.2024, passed by learned District Judge, Kangra at Dharamshala in Civil Appeal No. 155/2022, whereby the case was remanded back to the learned trial Court for trial afresh after allowing applications under Order 1 Rule 10, read with Section 151 CPC and under Order 6 Rule 17, read with Section 151 CPC, with a prayer to set aside the same with costs.

2. The brief facts of the case are that predecessor-in- interest of respondents namely Brij Bala instituted a suit for possession and recovery of premises marked as “ABCDEFG” depicted in the site plan, as well as use and occupation charges, wherein, it has been averred that she is owner of double storeyed building, depicted in the site plan on having acquired title over the same vide Will dated 15.05.2003 executed by her husband late Sh. Sant Ram Gupta. The defendant was inducted by her husband as tenant of the shop marked in the site plan as “FHIJKL” on a monthly rent of Rs. 3,000/- vide agreement dated 31.12.1998. Behind aforesaid rented portion lies the area marked as “ABCDEFG”, which was consisting of four rooms, one big hall and two toilets and was separated from rented portion “FHIJKL” by erecting a wooden partition. The portion behind the rented portion depicted as “ABCDEFG” was never rented out to the defendant, but the defendant by taking undue advantage of the plaintiff and residing permanently at Dharamshala, illegally removed and uprooted the wooden partition on 01.12.2006 and unauthorizedly occupied the same. On account of illegal and unauthorized occupation by the defendant of the disputed property, he has become liable to pay damages to the plaintiff for the same and occupation of the said area which is assessed to Rs. 7,000/- per month. Therefore, total recovery from defendant by plaintiff from 01.12.2006 till 31.12.2010 is Rs. 3,43,000/-. The plaintiff is also entitled to recover interest on the said amount @ 12% per annum from 01.12.2006 till recovery of the same. A registered legal notice dated 28.12.2010 was also served upon defendant, but he did not reply. Hence, the present suit for recovery of the amount for illegal and unauthorized use and occupation and decree for possession.

3. The defendant contested the suit by filing written statement, wherein, preliminary objections qua locus standi, cause of action, estoppel, maintainability, suppression of material facts, limitation, non-joinder of necessary parties, valuation and jurisdiction were taken. On merits, it has been stated that the property in dispute is not in exclusive ownership of the plaintiff. The entire property is Gair Mumkin and is entered in the ownership of Raj Kumar and Rakesh Kumar, sons of Dharam Chand to the extent of 2/3rd share in equal shares and the plaintiff to the extent of 1/3rd share and in possession of New Bank of India and Department of Telephones, as tenants. Therefore, it has been alleged that the Will dated 15.05.2003 does not confer absolute title upon the plaintiff, as she is a co-sharer to the extent of 1/3rd share. It has been submitted that there was a civil litigation pending between other two co-sharers namely Rakesh Kumar and Raj Kumar qua the suit property, in which, it was held that plaintiff is only a co-sharer to the extent of 1/3rd share and in the said litigation Rakesh Kumar and Raj Kumar were held to be owners to the extent of 2/3rd shar