The deck having been cleared of the subsidiary and collateral issues one may now come to the primal and the ticklish question which their Lordships rightly described as the piquant situation whether one of the many co-owners can evict the tenant from the premises under the Act when one co-owner either colludes or desires to allow the tenant to continue in occupation. Plainly enough, herein the firm stand of the learned counsel for the appellant, Mr. Chunni Lal, was that in the event of there being two or more co-owners or co-landlords, one of them cannot evict the tenant from the premises if anyone of the other co-owners wanted the tenant to continue.
21. Since it appears to me that apart from principle, the issue is covered by binding precedent, it is apt to proceed from the point of the two pole-star precedents of the final Court. In AIR 1976 SC 2335, Sri Ram Pasricha v. Jagannath, their Lordships were construing a somewhat analogous provision of Section 13 of the West Bengal Premises Tenancy Act. It was contended before their Lordships that under Section 13(i)(f) of the aforesaid Act the landlord means the absolute owner of the premises and since there were other co-sharers or co-owners of the premises, the plaintiff alone could not file the suit for eviction. It was further sought to be argued that one of the co-owners of the premises could not claim the premises on the basis of the needs for the personal use and occupation thereof of the other co-owners as well Categorically repelling these contentions their Lordships held as under : --
"Jurisprudentially it is not correct to say that a co-owner of a property is not its owner. He owns every part of the composite property along with others and it cannot be said that he is only a part-owner or a fractional owner of the property. The position will change only when partition takes place. It is, therefore, not possible to accept the submission that the plaintiff who is admittedly the landlord and co-owner of the premises is not the owner of the premises within the meaning of Section 13(1)(f). It is not necessary to establish that the plaintiff is the only owner of the property for the purpose of Section 13(1)(f) as long as he is a co-owner of the property being at the same time the acknowledged landlord of the defendants.
.....
We are of the opinion that a co-owner is as much an owner of the entire property as any sole owner of a property is."
22. The aforesaid enunciation is categorical enough, yet if any ghost of doubt remained the same was set finally at rest by the later reaffirmance of the view in AIR 1977 SC 1599; Smt. Kanta Goel v. B. P. Pathak. Therein what fell for construction were the provisions of Delhi Rent Control Act and the question was whether one coheir of the deceased landlord would sue for eviction in the absence of other co-heirs. Answering the question in categorical affirmative Krishna Iyer, J. speaking for the Court, observed as under : --
"This Court in Sri Ram Pasricha, (1976) 4 SCC 184 : AIR 1976 SC 2335 clarified that a co-owner is as much an owner of the entire property as any sole owner of the property is: "Jurisprudentially, it is not correct to say that a co-owner of property is not its owner. He owns every part of the composite property along with others and it cannot be said that he is only a part owner or a fractional owner of the property..... It is, therefore, not possible to accept the submission that the plaintiff who is admittedly the landlord and co-owner of the premises is not the owner of the premises within the meaning ofSection 13(1)(f). It is not necessary to establish that the plaintiff is the only owner of the property for the purpose of Section 13(1)(f) as long as he is a co-owner of the property, being at the same time acknowledged landlord of the defendants". That case also was one for eviction under the rent control law of Bengal. The law having been thus put beyond doubt, the contention that the absence of the other co-owners on record desentitled the first respondent from suing for eviction fails. We are not called upon to consider the piquant situation that might arise if some of the co-owners wanted the tenant to continue contrary to the relief claimed by the evicting co-owner."
23. In accord with the above, a Division Bench whilst construing the analogous provision of Section 13 of the East Punjab Rent Restriction Act in Mathura Dass v. Smt. Ram Piari, AIR 1982 Punj and Har 286 has held as under : --
"To conclude, both on principle and precedent the answer to the question posed at the outset is rendered in the affirmative and it is held that even one of the many co-landlords can singly maintain an application for ejectment against his tenant under the Act."
24. To my mind, it appears that once the final Court has held categorically that one co-owner can singly maintain a suit for eviction under the rent law, it inevitably follows that he can maintain it successfully. It is difficult, if not illogical, to draw any finical distinction that though the single co-owner can maintain the suit, yet in the event of one of the co-owners colluding with the tenant or desiring his continuance the same would raise a legal bar for evicting the tenant who undoutcdly has incurred the liability of such eviction under the rent law. If a single co-owner can otherwise maintain a suit for eviction against the tenant, then on principle there seems no reason why the same ratio would not apply in the event of one of the many co-owners colluding or siding with the tenant. If the law as now settled by the Supreme Court does not even require impleading of all other co-owners as plaintiffs or defendants, it would be illogical to suggest that he can maintain the suit but get no meaningful relief.
25. To my mind, collusion or consent by one of the co-owners for the continuance of a tenant who has otherwise clearly incurred the liability of eviction under the law can and should make no difference to the rights of the other co-owners to eject him from the property. Once the tenant incurs the disability of being evicted under the express, though limited, conditions provided therefor under the rent law, then the same are not to be nullified unilaterally by the collusion of one of many co-owners. A single co-owner out of ten or twenty has no veto over the other body of co-owners for the continuance of a tenant otherwise liable to eviction under the law. Holding so, as noticed above, would not only give him a kind of veto but also a power to override and nullify the provisions of the law itself which confer the right on the landlord either as a body or singly to evict him. I do not think that the volition of a single co-owner in collusion with a defaulting tenant would warrant any such legal result.
26. Apart from precedent, on principle four situations may be visualised as arising in this context, firstly, where all the co-owners join as plaintiffs in the suit; secondly, where one co-owner alone prefers the suit whilst the others are consenting parties thereto; thirdly, where one co-owner prefers the suit and impleads the others as pro forma defendants; and fourthly, where one or some of the co-owners files the suit but one of the co-onwers colludes with the tenant to resist the same. There is no manner of doubt on existing precedent that in all the first three cases, the suit can be successfully maintained against the defaulting tenant. To my mind, the identical principle would apply to the last and the fourth category as well. Herein, what calls for notice is that eviction may not only be sought for non-payment of rent under different statutes but equally for breach of the conditions of the tenancy, for subletting, for personal necessity, and even for wasting or damaging the demised premises. In particular Section 11(1)(b) of the Act is in the following terms :
"Where the condition of the building has materially deteriorated owing to acts of waste by, or negligence or default of, the tenant, or of any person residing with the tenant or for whose behaviour the tenant is responsible."
If the argument canvassed on behalf of the appellant were to be accepted, then one out of the hundred co-owners may collude with the defaulting tenant and allow the whole property to deteriorate by acts of waste, negligence or default of a recalcitrant tenant whilst the whole body of the remaining co-owners must remain silent and impotent spectators of such waste because they cannot secure a decree of eviction even on the flagrant violations of the conditions under Clause (b) aforesaid I do not think that any such anomalous and indeed mischievous situation is either envisaged by the law under the statutory provisions like Section 11 of the Act or can possibly be tenable on principle.
27. Learned counsel for the appellant had attempted to wriggle out of the illogical and anomalous results of his stand by contending that in such a situation the co-owners must first secure a partition decree of the demised premises and then alone could each co-owner sue for eviction from his specified share of the property. This submission in itself highlights the absurd length to which the legal situation would have to be carried merely because of the collusion of one of the many co-owners with a tenant. On the appellant's stand, the whole substratum of the owner-landlord's right to evict under the rent law would evaporate if one of the co-owners chooses to collude or connive with a defaulting tenant and the sole solution thereto would be first a suit for partition betwixt the co-owners and after the final decree alone would eviction be possible from the premises and that too for the demarcated shares in the partition. The argument of the learned Counsel for the appellant, in sum, leads to the result that the tenant with the collusion of one co-owner would push the whole remaining body of the other co-owners into first a partition suit inter se and then only after the final decree sue for eviction from their respective shares. Such a situation in the eye of law is not to be easily conceived nor succumbed to by a process of strained interpretation.
Patna High Court
Equivalent citations: AIR 1988 Pat 58, 1988 (36) BLJR 53
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