JUDGMENT :

1. Heard Sri Rohan Gupta, learned counsel for the revisionist and Sri Prakhar Tondon, learned counsel for the opposite party.

Present revision has been filed with the following prayers:

“It is, therefore, Most respectfully prayed that this Hon'ble Court may graciously be pleased to allow the aforesaid revision and set aside the impugned order dated 07.02.2023 and the consequential decree dated 14.02.2023, passed by the Additional District Judge, Court No. 08, Kanpur Nagar in O.S. No. 73 of 2019; failing which the Revisionist shall suffer irreparable loss and injury.”

It is also prayed that the Hon'ble Court may kindly be pleased to stay the effect and operation of the impugned order dated 07.02.2023 and the consequential decree dated 14.02.2023, passed by the Additional District Judge, Court No. 08, Kanpur Nagar in O.S. No. 73 of 2019.”

2. Since, only legal question is involved in this matter, therefore, with the consent of parties without inviting for affidavits, the matter is being decided at the admission stage itself.

3. Learned counsel for the revisionist submitted that revisionist-defendant was a tenant of Sri Kailash Nath Agarwal and after the death of Sri Kailash Nath Agarwal, his property was inherited by his two sons, viz, Sri Pankaj Agarwal and Sri Rakesh Kumar Agarwal. Thereafter, the revisionist-defendant became tenant of Sri Pankaj Agarwal. Pankaj Agarwal has sold out half of the portion of the building, which was in his share to Smt. Usha Sharma, i.e. plaintiff-opposite party, who is not a family member of Sri Pankaj Agarwal.

4. He next submitted that after execution of sale deed dated 29.01.2019, plaintiff-opposite party has filed S.C.C. Suit for eviction of house in question after giving notice to revisionist-defendant under Section 106 of Transfer of Property Act, 1882(hereinafter, referred to as, 'Act of 1882').

5. He next submitted that after execution of sale deed dated 29.01.2019, partition of property in question has not taken place and without partition, it cannot be ascertained as to which part of the property, opposite party-co-owner is having right to enter upon, in case of being ranked outsider and not a family member. Plaintiff-opposite party is having no right to enter upon into the property in dispute without partition, therefore, for filing the suit for eviction, the first action required on the part of plaintiff-opposite party is to file a partition suit and obtain possession of property in question and then file a suit for eviction.

6. He next submitted that plaintiff-opposite party is a co-owner, but an outsider, therefore, she cannot file suit for eviction without consent of another co-owner, i.e. Rakesh Kumar Agarwal, who is co-owner and also in occupation of half portion of the property. He also submitted that without obtaining possession over the purchased part of the property, she cannot file suit for eviction and in the present case, undisputedly, till date, no partition has taken place in accordance with sale deed executed on 29.01.2019. In the sale deed, consent of co-owner, i.e. Rakesh Kumar Agarwal is not recorded for filing of suit for eviction and nothing is mentioned about the tenancy.

7. In support of his contention, Sri Rohan Gupta, learned counsel for the revisionist-defendant has placed reliance upon judgment of High Court of Bombay in the matter of Abdul Hamid Vs. Bhuwaneshwar Prasad: AIR 1950 Nagpur 18, judgment of High Court of Madhya Padesh in B.P.Pathak,Vs. Dr.Ryazuddin: AIR 1976 Madhya Pradesh 55, followed by the Apex Court in the case of Nalakath Sainuddin Vs. Koorikadan Sulaiman: (2002) 6 SCC 1, judgment of Apex court in the matter of Kochkunju Nair Vs. KoshyAlexander and Others: (1999) 3 SCC 482 and Ramdas Vs. Sitabai And Others: (2009) SCC 444.

8. He lastly reiterated that, once it is undisputed that plaintiff-opposite party-co-owner is not a family member, no consent of another co-owner for filing the suit for eviction, no explanation about the tenancy, no partiti