Mehmood Ayub and Others vs Sri Sayeed Ahmed and Garhwal Jal Sansthan

Rajesh Tandon, J.—Heard Sri A Rab counsel for the revisionist and Sri Rakesh Thapliyal counsel for the respondent No. 2.

Present appeal has been preferred against the judgment and decree dated 22nd February 2007 passed by the Additional District Judge, Dehradun.

Briefly stated the suit was filed by the plaintiff for declaration that he continued to be the co-owner of the premises No. 43/2 situated at Vikas Nagar, Dehradun and he is entitled to get water connection in his premises. The plaintiff has also given his pedigree and according to his pedigree he claimed to be one of the co-owner of the property in question.

The trial court has framed the following issues:

Whether the plaintiffs are entitled to get water connection in the premies No. 43/2, Vikas Nagar, Dehradun as owner of the property ?

Whether the order of refusal by the defendant is illegal and void?

To what relief, if any, are the plaintiffs entitled ?

The trial Court has taken issues No. 1 and 2 together and finding was recorded that the plaintiffs are the co-owner of the premises No. 43/2 in Vikas Nagar, Dehradun. It was further held that the plaintiffs are entitled for a declaration to get the water connection. The suit of the plaintiffs was, therefore, decreed.

Another co-owner has preferred appeal on the ground that all the co-owners were the necessary parties in the suit. Leave was granted and the appellate court has directed for getting water connection in respect of the premises in question. The appellate court has given its findings that any occupier is entitled for water connection. The appellate Court has relied upon Section 66 of U.P. Water Supply and Sewerage Act, 1975 which reads as under:

Supply of water by Jal Sansthan- (1) A Jal Sansthan shall, on an application made in that behalf by the owner or occupier of any premises, grant supply of water for domestic purposes for

(a) any premises situated within a distance of thirty metres from an existing main; or

(b) where the applicant undertakes to bear the cost any extension which may be necessary beyond a distance of thirty metres for connecting the premises with the nearest existing main, any premises situated beyond such distance.

The owner has been defined u/s 2 (17) of the U.P. Water Supply and Sewerage Act, 1975. It reads as under:

''Owner" in relation to any premises means the person who receives the rent of the said premises or who would be entitled to receive the rent thereof if the premises were let, and includes-

(a) an agent or trustee who receives such rent on account of the owner;

(b) an agent or trustee who receives the rent of, or is entrusted with the management of, any premises devoted to religious or charitable purposes;

(c) a receiver or manager appointed by any court of competent jurisdiction to have the charge of, or to exercise the rights of an owner of the said premises, and

(d) a mortgage-in- possession.

In view of the aforesaid definition a co-owner being the owner is entitled to receive the rent of the premises.

The contention of the appellants is that the order passed by the lower appellate Court to the extent where it has used the word occupier is illegal in as much as Section 66 of the U.P. Water Supply and Sewerage Act, the words ''owner or occupier'' both has been used.

Sri A. Rab counsel for the appellants has submitted that the order passed by the lower appellate court may be modified to the extent that appellants are co-owners who are also owners for all purposes as co-owner is owner for all purposes.

The word owner has been defined by the Apex Court, in the case Sri Ram Pasricha Vs. Jagannath and Others, , Sri Ram Pasricha Vs. Jagannath and Others, . The Apex Court has 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).

The Apex Court in the case T. Lakshmipathi and Others Vs. P. Nithyananda Reddy and Others, has described the owner and co-owner of a property as under:

The law as to co-owners is well settled. Where any property is held by several co-owners, each co-owner has interest in every inch of the common property, but his interest is qualified and limited by similar interest of the other co-owners.

In view of aforesaid since relief has already been given to the plaintiffs by both the courts below, I am not interfering with the findings of the two courts below. However, the judgment of the appellate court is modified to the extent that the appellants instead of occupier shall be treated as co-owners.

Subject to the aforesaid observations, the appeal is dismissed in limine.