C. Viswanathan vs District Judge and Others

K.T. Thomas, J.—Among the three grounds espoused by a landlord for eviction of a tenant from his building, the one which ultimately survived is that the tenant has ceased to occupy the building for more than six months. Thus, an order of eviction has been granted on the ground envisaged in Sec. 11 (4)(v)of the Kerala Buildings (Lease and Rent Control) Act, 1965 (for short ''the Act''). District Court, in revision, did not interfere with the finding of the Appellate Authority as regards the aforesaid ground. This Original Petition is in challenge of the order of the District Court (Ext. P3). Finding of the Appellate Authority that the tenant ceased to occupy the building for more then six months, is based on some materials. Ext. X2 is a copy of the application (dated 9-7-1984) filed by the tenant for shifting his telephone connection from this building to another which contains a clear statement that he had already shifted his residence to the other building. The tenant himself admitted in his evidence that his wife and children were residing in the latter building since 1981. He filed necessary application to shift cooking gas connection to the other building. All these circumstances weighed with the Appellate Authority in reaching the aforesaid finding.

There is nothing to show that the Appellate Authority has acted on any extraneous material to reach the finding. Learned District Judge was perfectly justified in not Interfering with the judgment of the Appellate Authority.

Learned counsel for the petitioner mainly contended that petitioner, being only one of the co-owners cannot maintain the application for eviction without the junction of other co-owners. There is no dispute that the landlord who filed the application for eviction is only a co-owner. It is true that the other co-owners have not joined In filing the application. Learned counsel for the petitioner cited the decision in Kunhalu v. Baputty (1991 (2) K. L. T. 598) and submitted that learned District Judge went wrong in distinguishing the decision on facts of that case. Counsel for the petitioner gave thrust to the following observations made by Padmanabban, J. in the aforesaid decision: When there are two or more co-owners, this Implied covenant would obviously be in favour of all of them and they would be jointly entitled to enforce it vide Sec. 43 of the Contract Act. They must, therefore, all join in filing a suit to recover possession except when, by a special provision of law, co-owners are permitted to sue through some or one of the members". Learned District Judge pointed out that the said decision envisaged two exceptions and the case on hand falls in one of the exceptions.

However, it must be noted that Padmanabhan, J. has stated the law in paragraph 3 of Kunhalu''s decision thus:

Law presumes that each and every co-owner is as much in possession of the entire co-ownership property as any other co-owner. So also, his possession is considered in law to be on behalf of other co-owners also. Trespass into co-ownership property is a wrong against the possession of all co-owners even though all may not be in physical possession. Rule is well settled that a co-owner can, without representing the other co-owners or without joining them, maintain an action to evict a trespasser. The other observations are only obiter dicta. Application for eviction was filed in that case by all the co-owners in whose favour the rent deed was executed by the tenants. This can be found out from the facts, and, hence the observations made by the learned single Judge regarding necessity for junction of all the co-owners in the application for eviction cannot be treated as ratio of the decision.

A landlord is defined is Sec. 2(3) of the Act as including a person "who is entitled to receive rent of a building on his own account or on behalf of another or on behalf of himself and others". Supreme Court has settled the law beyond the pale of doubt that action for eviction of a tenant can be made by one co-owner without the junction of other co-owners. In Sri Ram Pasricha Vs. Jagannath and Others, a bench consisting of Chandrachud, P. K. Goswaml and A. C. Gupta, JJ. considered the question whether a co-owner of the premises is "the owner" within the meaning of Sec. 13 (1) (f) of the West Bengal Premises Tenancy Act, 1956. Their Lordships observed that "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. It is not necessary to establish that plaintiff is the only owner of the property for the purpose of Sec. 13 (2) (f) as long as he is co-owner of the property being at the same time the acknowledged landlord of the defendants". Their Lordships concluded that "a co-owner is as much an owner of the entire property as any sole owner of a property is". Dealing with definition of the term "landlord" in Sec. 2 (e) of the Delhi Rent Control Act, 1958 another bench of three Judges of the Supreme Court has held in Kanta Goel Vs. B.P. Pathak and Others, after referring'' to the above quoted observations in Sri Bam Pasricha''s case (cited supra) that "the law having been thus put beyond doubt, the contention that the absence of the other co-owners on record disentitled the first respondent from suing for eviction, fails". Of course, their Lordships declined to consider the situation when some of the co-owners wanted the tenant to continue contrary to the relief claimed by the evicting co-owner. It is pertinent to point out that the definition ''landlord'' in the Delhi Rent Control Act is identical with the definition of the same term in our Act. These two decisions of the Supreme Court cited above have not been brought to the notice of Padmanabhan, J. in Kunhalu''s case ( 1991 (2) K. L. T. 598).

On a previous occasion, this court had occasion to consider a similar question. Relying on the two Supreme Court decisions cited supra, it was then held in Krishnan Nair v. Lakshmi Amma (1986 K. L. T. 558) that "the position of a co-owner in law is, beyond the pale of any controversy that he is as much an owner as any sole owner is in relation to his property". When the definition of "landlord" includes of less degree person of status such as an agent, or guardian, or executor, it admits of no doubt that a co-owner as a landlord, is entitled to get an order of eviction..................". The said decision was also not brought to the notice of Padmanabhan, J.

As the position is well settled with the pronouncements made by Supreme Court in the decisions referred to above, the observations made in Kunhalu''s case cannot be regarded as correct. Learned counsel for the petitioner lastly made a plea for granting some reasonable time to the petitioner to give vacant possession to the landlord. Considering all aspects, I direct the petitioner to give an unconditional undertaking before the execution court that he would vacate the building unconditionally on or before the expiry of four months from today. If any such undertaking is given, the execution court shall allow the petitioner to remain in the premises for such period.

With these observations, Original Petition is disposed of.