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2025 DIGILAW 319 (ALL)

Shreeram Yadav v. Sanjay Mall

2025-02-13

AJIT KUMAR

body2025
JUDGMENT : Ajit Kumar, J. 1. Heard Sri Vishnu Gupta, learned Senior Advocate assisted by Sri Shiv Om Vikram Singh Chauhan, learned counsel for the petitioner and Sri O.P. Singh, learned Senior Advocate assisted by Sri Sushil Kumar Mishra, learned counsel for the respondents. 2. By means of this petition filed under Article 227 of the Constitution, petitioner has assailed the order passed by the Prescribed Authority dated 29.11.2024 by means of which his amendment application in the written statement/ objection filed by him against the release application has come to be rejected. 3. Admittedly the case was instituted in 2017 and the landlord who has applied for release becomes owner of the property by virtue of sale deed dated 30.11.2013. The question sought to be raised by the tenant/ petitioner is that a person who steps into the shoes of owner of the property by virtue of sale deed in respect of undivided property only becomes entitled to a share of the property only and cannot have possessory rights qua such property. He has placed reliance upon a judgment of Supreme Court in the case of Gajara Vishnu Gosavi v. Prakash Nanasaheb Kamble & Others, (2009) 10 SCC 654 in which Court has relied upon the observations made by another bench of that court in the case of Ramdas v. Sitabai & Others, JT 2009 (8) SC 224 , wherein it was held that "a purchaser of a co-parcener's undivided interest in the joint family property is not entitled to possession of what he had purchased. He has a right only to sue for partition of the property and ask for allotment of his share in the suit property." 4. Countering the submission so advanced by learned counsel for the petitioner, learned Senior Advocate appearing for the respondents Sri O.P. Singh submits that once the property comes to be purchased by a third party and he becomes the owner of the property, may be he becomes the co-sharer of the property but that would amount to a status of co-owner and sitting tenant cannot take objection that a co-owner cannot maintain release application only for the reason that he is not having possessory rights with partition. It is further submitted that the judgment that has been relied upon was in respect of an agricultural holding where there was a dispute regarding undivided share. It is further submitted that the judgment that has been relied upon was in respect of an agricultural holding where there was a dispute regarding undivided share. He, therefore, submits that the facts of that case are distinguishable and are not applicable to a rent dispute case where the title is not germane to the proceedings. 5. Having heard learned counsel for the respective parties and having perused the records, I find merit in the submissions advanced by Sri O.P. Singh, learned Senior Advocate appearing for the respondents. A tenant cannot take an objection to a co-owner for maintaining a release application as it has been held in a catena of decisions by this Court as well as Supreme Court that one of the co-owners can maintain a release application. M/s. India Umbrella Manufacturing Company & Others v. Bhagabandei Agarwalla (Dead) by LRs Smt. Savitri Agarwalla & Others, (2004) 3 SCC 178 , Sri Ram Pasricha v. Jagannath & Others (1976) 4 SCC 184 . 6. The plea that is sought to be taken that a co-owner cannot have a possessory right unless there is a partition in metes and bounds of a property, is something like a plea by a co-owner to be taken against other co-owners. This plea according to me is not available to a tenant. One must keep in mind that a vendee may not have an exclusive right of transferring possession of a specific part of joint property but on principle of joint ownership, he is in notional possession of the undivided property with all his co-sharers. This theory of possessory title, however, cannot help the tenant to question maintainability of release application. Once the property is released by a tenant, it would vest in all co-owners and will come in valid exclusive possession of one only after partition. So upon release, if a co-owner gets possession of property, he cannot sell it out with transfer of exclusive possession thereof but tenant does not get any legal right to question maintainability of release application. Thus, maintainability of release application cannot be questioned on the basis that co-owner filed a release application. The observations that have come to be made in the judgment of Supreme Court in Gajara Vishnu Gosavi (supra), do not come in the conflict with what view I have taken above. Thus, maintainability of release application cannot be questioned on the basis that co-owner filed a release application. The observations that have come to be made in the judgment of Supreme Court in Gajara Vishnu Gosavi (supra), do not come in the conflict with what view I have taken above. That was a case in which a purchaser of the property from a co-parcener was trying to have a possessory rights in respect of undivided property. It is a settled law that in respect of a property of co-sharers, possession of one is taken to be possession of all other co-sharers. This is the principle that has been followed till date. However, in respect of release application upon being filed which is a summary proceeding in which even the title issue cannot be gone into except incidentally and that too where the petitioner raises plea of inherent lack of title but this is not the case in hand. The facts of that case are absolutely distinguishable and the principle enunciated in the said judgment does not attract to the present case. 7. In view of the above, I do not find any manifest error in the order passed by the Prescribed Authority. 8. Petition is devoid of merits and is accordingly dismissed.