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2019 DIGILAW 1406 (RAJ)

Gopal Singh v. Ganpatlal Panchamlal Lakhotiya

2019-05-08

SANJEEV PRAKASH SHARMA

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JUDGMENT : Sanjeev Prakash Sharma, J. 1. The application moved by the petitioner under Order 14 Rule 5 CPC and under Order 41 Rule 25 CPC before the Appellate Court for framing an additional issue at appellate stage was rejected by the impugned order dated 26.2.2019. Against the said order the present writ petition has been filed by the petitioner. 2. Learned counsel appearing for the petitioner submits that the respondent-plaintiff at the stage of evidence stated that he was in the capacity of 'karta' while his father was alive on the date of filing of the suit. On the basis of the statement made by the respondent plaintiff, in cross-examination, the trial court ought to have framed issues with regard to the question whether the suit was maintainable by the respondent plaintiff. 3. Learned counsel submits that the application was accordingly moved under Order 14 Rule 5 CPC before the trial court which came to be dismissed and the judgment and decree was passed in favour of the plaintiff respondent. In appeal the petitioner again raised the ground of non-framing of the relevant issues as above by moving an application under Order 41 Rule 25 CPC as the other members of the HUF had not been impleaded as a party. The application has been rejected. 4. Learned counsel has relied on judgment reported in 1999 (3) SCC 644 " Jagdish Dutt & Anr. vs. Dharam Pal & Ors." to submit that one co-owner/co-landlord is not entitled on his own, to terminate his tenancy. 5. I have considered the submissions. 6. The Supreme Court in its recent judgment in the case "Om Prakash and Another vs. Mishri Lal (dead) represented by his legal representative Savitri Devi" reported in 2017 (5) SCC 451 observed as under: "32. It is no longer res integra and is settled by this Court in Sri Ram Pasricha vs. Jagannath, Dhannalal vs. Kalawatibai and India Umbrella Manufacturing Co. vs. Bhagabandei Agarwalla 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. vs. Bhagabandei Agarwalla 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. The judicially propounded proposition is that when the property forming the subject matter of eviction proceedings is owned by several co-owners, every co-owner owns every part and every bit of the joint property along with others and thus it cannot be said that he is only a part owner or a fractional owner of the property and that he can alone maintain a suit for eviction of the tenant without joining the other co-owners if such other co-owners do not object. In the contextual facts, not only the compromise decree, as aforementioned, has declared the Appellants to be the joint owners of the suit premises, their status as such has not been questioned at any stage by anyone interested in the title thereto. 33. Further, the original Defendant having accepted Smt. Chameli Devi as his landlady and thereafter continued to pay rent to her son Bhola Nath, the father of the Appellants, in terms of the definition of "landlord" in Section 3(j) of the Act, he during his life time and after his demise, the Respondents are estopped Under Section 116 of the Indian Evidence Act, 1872 to dispute the status of the Appellants as their landlord in a suit for his eviction from the tenanted premises. 34. That a tenant during the continuance of the tenancy is debarred on the doctrine of estoppel from denying the title of his landlord through whom he claims tenancy, as is enshrined in Section 116 of the Indian Evidence Act, 1872, is so well-settled a legal postulation that no decision need be cited to further consolidate the same. This enunciation, amongst others is reiterated by this Court in S. Thangappan v. P. Padmavathy and Bhogadi Kannababu v. Vuggina Pydamma. This enunciation, amongst others is reiterated by this Court in S. Thangappan v. P. Padmavathy and Bhogadi Kannababu v. Vuggina Pydamma. In any view of the matter, the Appellants, being the son of Bhola Nath, who at all relevant time, was the landlord vis-a-vis the original Defendant and the Respondents in terms of Section 3(j) of the Act, their status as landlords for the purpose of eviction under the Act, could not have been questioned so as to non suit them for want of locus." 7. Admittedly, in the present facts of the case, the tenant has admitted of having paid rent to the respondent and in his written statement also such averment has been raised by the petitioner. On the contrary, there is a statement recorded of the respondent as per his rejoinder of being landlord. It is noticed that no other co-owner has come forward to challenge or object to the eviction petition. 8. In view of this court, it cannot be said that co-owners were in any manner affected by the decree passed by the trial court. Thus viewed, the order passed by appellate court rejecting the application does not call for any interference. 9. The writ petition being devoid of merits, is dismissed.