“When there are various co-owners/co-landlords, only one co-owner/co-landlord cannot terminate the tenancy for seeking possession of the tenanted property and/or mesne profits”
Applying the legal principle that a suit for recovery of possession was not maintainable at the instance of a co-owner alone when other co-owners object to it, the Delhi High Court has dismissed an appeal filed against dismissal of suit. The suit was filed for recovery of possession and mesne profits with respect to a property under co-ownership, which was under the occupation of a tenant. One of the co-owners instituted the suit. However, other co-owners did not support him, and they stated that the tenancy was unilaterally terminated by the plaintiff without consent of other co-owners. The trial court dismissed on the ground that the appellant/plaintiff, being only one co-owner/co-landlord cannot claim possession and recovery of damages once the other co-owners have not supported him and have in fact opposed the termination of tenancy by him. During the pendency of appeal, the tenant vacated the premises, and the only surviving question in appeal was regarding entitlement of appellant for mesne profitsduring the period of tenancy.
Justice Valmiki J Mehta, who considered the appeal, concurred with the conclusions of the trial court that the suit could not have been maintained by one co-owner alone. Reference was made to the Supreme Court decisions in Sk. Sattar Sk. Mohd. Choudhari Vs. Gundappa Amabadas Bukate (1996) 6 SCC 373 andJagdish Dutt and Another Vs. Dharam Pal and Others (1999) 3 SCC 644.
In Sk. Sattar Sk. Mohd. Choudhari (supra), the SC had observed :- a co-sharer cannot initiate action for eviction of the tenant from the portion of the tenanted accommodation nor can he sue for his part of the rent. The tenancy cannot be split up either in estate or in rent or any other obligation by unilateral act of one of the co-owners
In the case of Jagdish Dutt (supra), the SC had held that a co-sharer cannot seek to execute a joint decree only with respect to his share, and that a decree can be executed only in whole and not in part. It was observed : In case where the interest of the coparceners is undefined, indeterminate and cannot be specifically stated to be in respect of any one portion of the property, a decree cannot be given effect to before ascertaining the rights of the parties by an appropriate decree in a partition suit. It is no doubt true that the purchaser of the undivided interest of a coparcener in an immovable property cannot claim to be in joint possession of that property with all the other coparceners. However, in case where he is already in possession of the property, unless the rights are appropriately ascertained, he cannot be deprived of the possession thereof for a joint decree holder can seek for execution of a decree in the whole and not in part of the property.
Based on these observations, the High Court held that when there are various co-owners/co-landlords, only one co-owner/co-landlord cannot terminate the tenancy for seeking possession of the tenanted property and/or mesne profits.
The appellant had placed reliance on Om Prakash and Another Vs. Mishri Lal (dead) represented by his legal representative Savitri Devi (2017) 5 SCC 451to argue that one coowner can file a suit for possession. The observation made in Om Prakash(supra) that “a suit for eviction of a tenant can be maintained by one of the co-owners and it would be no defence to the tenant to question the maintainability of the suit on the ground that the other co-owners were not joined as parties to the suit”, was sought to be taken advantage by the appellant.
However, the Court held that Om Prakash decision only lay down the ratio that one co-owner can file a suit for eviction against a tenant if there is no opposition of the other co-owners/co-landlords . The Court noted that in the instant case there was objection from other co-owners. Hence, Om Prakash was distinguished. Resultantly, the appeal got dismissed.