Municipal Council Theog vs Gurcharan And Another

Rakesh Kainthla, J

CMP No. 15308 of 2022

The present appeal is directed against the judgment & decree passed by learned Additional District Judge-II, Shimla vide which the appeal filed by the appellant (defendant before learned Trial Court) was dismissed and judgment and decree dated 28.3.2022, passed by learned Senior Civil Judge, Theog was upheld. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).

Briefly stated, the facts giving rise to the present appeal are that the plaintiff filed a civil suit before the learned Trial Court for seeking possession of the land comprised in Khewat No. 4, Khatauni No. 7, Khasra No.- 170, measuring 66.88 square mtrs., situated in Mohal Shali Bazar, Tehsil Theog, District Shimla, H.P. and a house constructed thereon (hereinafter referred to as the suit land). It was asserted that the plaintiffs are co-owners in possession of the suit land. The suit land was allotted to the plaintiffs in a family partition. Municipal Council Theog was permitted to store water in the structure over the suit land as a licensee when there was no proper supply in Theog Bazar. Now the water supply has improved and Municipal Council Theog has stopped the storage of water on the suit land. The defendant- Municipal Council Theog - put a lock on the building and stored material in it. The plaintiffs served a notice upon the defendant, terminating the licence and asked the defendant to deliver the possession but in vain. Hence, the suit was filed to seek the relief mentioned above.

The suit was opposed by filing an amended written statement, taking preliminary objection regarding lack of maintainability and cause of action. The contents of the plaint were admitted to the extent that the suit land is in possession of the defendant. It was asserted that the land was gifted for the construction of a storage tank by the ancestors of the plaintiffs for storing the water during emergencies. The defendant constructed a permanent structure and the licence has become irrevocable. The plaintiffs are not entitled to the possession. Hence, it was prayed that the suit be dismissed.

A replication denying the contents of the written statement and affirming those of the plaint was filed.

The learned Trial Court framed the following issues on 02.03.2016:-

Whether the defendant is required to hand over the vacant possession of the suit land to the plaintiffs? OPP

Whether the suit is not maintainable? OPD

Whether the plaintiffs have no cause of action to file the present suit? OPD.

Relief.

The parties were called upon to produce the evidence and the plaintiff examined himself (PW-1). Defendant examined Varun Sharma(DW-1).

The Learned Trial Court held that the plaintiffs were recorded as the joint owners in possession in the copy of the Jamabandi (Ex. PD) for the year 1987 -88. Their predecessor-in-interest was recorded as owner-in-possession in the copies of earlier Jamabandis. Plaintiff No. 1 stated in his affidavit that the suit land fell into his share. The plea taken by the defendant that the suit land was gifted was not proved by any evidence. Varun Sharma (DW-1) admitted that the structure existed on the suit land even earlier; therefore, the plea that the construction was raised by Municipal Council, Theog was not proved. A co-owner has a right to seek possession; therefore, the suit was decreed.

Being aggrieved from the judgment and decree passed by the learned Trial Court, the defendant filed an appeal. Learned Appellate Court held that the plaintiffs are the co-owners and entitled to file a civil suit for possession. The plea of the defendant regarding the gift was not proved. The plaintiffs had terminated the licence and nothing was brought on record to prove that construction was raised by the defendant. A co- owner has a right to terminate the licence and seek eviction.

There was no infirmity in the judgment passed by the learned Trial Court and the appeal was dismissed.

Being aggrieved by the judgments and decrees passed by the learned Courts below, the present appeal has been filed asserting that the learned Courts below erred in appreciating the evidence. It was ignored that the defendant had raised construction of a permanent structure and the licence had become irrevocable. Therefore, it was prayed that the present appeal be allowed and the judgments and decrees passed by the learned Courts below be set aside.

The following substantial questions of law were proposed to be framed in the appeal:

“1. Whether the Ld. Courts below have failed to appreciate that the license granted in favour of the appellant by the ancestors of the respondents had become irrevocable in view of clause (b) of Section 60 of the Indian Easements Act and thereby caused a miscarriage of justice?

Whether the findings recorded by the Ld. Courts below are perverse and illegal by misinterpreting and misconstruing the pleadings as well as the evidence on record?

I have heard Mr. Vaibhav Thakur, learned counsel for the appellant-defendant and Mr. Ashok Sood, learned Senior Counsel, assisted by Mr Khem Raj, Advocate for the plaintiffs-respondents.

Mr. Vaibhav Thakur, learned counsel for the appellant-defendant submitted that the learned Courts below erred in declining the relief to the defendant on the ground that the licence has become irrevocable. A co-owner cannot seek an eviction without joining other co-owners and the learned Courts below erred in holding otherwise. He relied upon the judgment of the Hon’ble Allahabad High Court in Hafiz Ali Khan vs. Mohd. Ishaq AIR 1977 Allahabad 469 in support of his submissions.

Mr. Ashok Sood, learned Senior Counsel supported the judgments and decrees passed by learned Courts below and submitted that no evidence of oral gift was produced by the defendant. No evidence was produced to show that the structure was raised by the defendant. Therefore, the plea taken by the defendant that the licence has become irrevocable was rightly rejected by the learned Courts below. A co-owner can evict the tenant and there is no bar in the same. He relied upon the judgment of the Hon’ble Supreme Court in Mohinder Prasad Jain v. Manohar Lal Jain, (2006) 2 SCC 724 in support of his submission.

I have given considerable thought to the rival submissions at the bar and have gone through the record carefully.

Both the learned Courts below have concurrently held that a co-owner can file a suit for eviction of the tenant and the consent of the other co-owners is presumed. This is the correct preposition of law. It was laid down by the Hon’ble Supreme Court in Mohinder Prasad Jain v. Manohar Lal Jain, (2006) 2 SCC 724. A suit filed by the co-owner is maintainable for eviction and it is not necessary for him to show the consent of other co-owners. It was observed:

“10. This question now stands concluded by a decision of this Court in India Umbrella Mfg. Co. v. Bhagabandei Agarwalla (2004) 3 SCC 178 wherein this Court opined: (SCC p. 183, para 6)

“6. Having heard the learned counsel for the parties we are satisfied that the appeals are liable to be dismissed. It is well settled that one of the co-owners can file a suit for eviction of a tenant in the property generally owned by the co-owners. (See Sri Ram Pasricha v. Jagannath (1976) 4 SCC 184 and Dhannalal v. Kalawatibai (2002) 6 SCC 16, SCC para 25.) This principle is based on the doctrine of agency. One co-owner filing a suit for eviction against the tenant does so on his behalf in his own right and as an agent of the other co-owners. The consent of other co-owners is assumed as taken unless it is shown that the other co-owners were not agreeable to eject the tenant and the suit was filed in spite of their disagreement. In the present case, the suit was filed by both the co-owners. One of the co-owners cannot withdraw his consent midway through the suit so as to prejudice the other co-owner. The suit once filed, the rights of the parties stand crystallised on the date of the suit and the entitlement of the co-owners to seek ejectment must be adjudged by reference to the date of institution of the suit; the only exception being when by virtue of a subsequent event the entitlement of the body of co-owners to eject the tenant comes to an end by act of parties or by operation of law.”

A suit filed by a co-owner, thus, is maintainable in law. It is not necessary for the co-owner to show before initiating the eviction proceedings before the Rent Controller that he had taken the option or consent of the other co-owners. However, in the event a co-owner objects thereto, the same may be a relevant fact. In the instant case, nothing has been brought on record to show that the co-owners of the respondent had objected to eviction proceedings initiated by the respondent herein. The submission of the learned counsel for the appellant to the effect that before initiating the proceedings, the respondent was required to show that he had experience in running the business in Ayurvedic medicines, has to be stated to be rejected. There is no law which provides for such a precondition. It may be so where a licence is required for running a business, a statute may prescribe certain qualifications or preconditions without fulfilment whereof the landlord may not be able to start a business, but for running a wholesale business in Ayurvedic medicines, no qualification is prescribed. Experience in the business is not a precondition under any statute. Even no experience therefor may be necessary. If the respondent has proved his bona fide requirement to evict the appellant herein for his own purpose, this Court may not, unless an appropriate case is made out, disturb the finding of fact arrived at by the Appellate Authority and affirmed by the High Court.”

The judgment of the Hon’ble Allahabad High Court in Hafiz Ali Khan vs. Mohd. Ishaq AIR 1997 Allahabad 469 cannot be followed in view of the binding precedent of the Hon’ble Supreme Court.

The defendant has submitted in the written statement that the suit land was gifted to him by the ancestors of the plaintiffs. In the alternative, it was asserted that the licence is irrevocable as the permanent structure was constructed on the suit land. Both the learned Courts below have concurrently held that these pleas were not proved. Sh. Varun Sharma (DW-1) stated in his cross-examination that the tank was constructed by the ancestors of the plaintiff. Thus, the plea of the defendant that the permanent structure was raised by the defendant was not supported by its witness and both the learned Courts below have rightly held that this plea was not established. Thus, the substantial question of law that the licence is irrevocable does not arise. Therefore, there is no perversity in the judgments passed by the learned Courts below.

Hence, no substantial question of law arises in the present case. Consequently, the appeal is dismissed.

Pending application(s), if any, also stand(s) disposed of.