B. Valsala Vs Sundaram Nadar Bhaskaran

T.L. Viswanatha Iyer, J.@mdashSecond defendant is the appellant. The suit was one for recovery of possession of building described in schedule B to the plaint. It was filed in the first instance by two plaintiffs, namely Sundaram Nadar Bhaskaran (the respondent), and his brother, Sukumaran. Pending the suit, Sukumaran sold his rights under two deeds of sale to one Velukutty and one Vijayakumaran Nair, after which he got himself removed from the array of parties by order dated 16-7-1982 on J. A. No. 3770 of 1981. Velukutty filed I. A. No. 3735 of 1981 to come on record as a defendant as an assignee from Sukumaran. It was vehemently opposed by the first plaintiff Bhaskaran alleging that Velukutty had not obtained any right over the building. He even denied any separate assignable interest in Sukumaran over the building. The Munsiff dismissed the petition observing that Bhaskaran did not want any relief against Velukutty, besides, the suit itself was at the stage of trial and evidence had been partly recorded. This order was not challenged and the suit proceeded to trial with the first plaintiff alone on record. The property in question is a building described in the B schedule, standing on the A schedule property, which belonged to one Sam David, He leased the B schedule building to the first defendant on 18-2-1974 on a rent of Rs. 100/- per month under the deed of lease Ext. Al for conducting an oil mill. The term of the lease was three years. An amount of Rs. 2,500/- was received as advance. A sum of Rs. 25/- per month was to be deducted from the rent as the interest on the advance amount and the balance was to be paid. Sam David conveyed his rights in the A schedule property (i.e. land and buildings) to the plaintiffs under Ext. A2 dated 5-12-1979. The first defendant had meanwhile sub - leased the building to the second defendant - appellant on 5-3-1976. The lessee defaulted in payment of the rent from December 1979 onwards. Plaintiffs issued notice on 15-3-1980 terminating the tenancy. The second defendant sent reply denying the rental arrangement, and the title of the plaintiffs. The suit was thereupon filed for declaration of the plaintiffs'' title, and for recovery of possession of the B schedule building with arrears of rent.

2. The first defendant admitted the lease, but pleaded ignorance of the sale of the property to the plaintiffs. He stated that he had assigned the leasehold right to the second defendant on 5-3-1976, that he had thereafter no interest in the property and was therefore an unnecessary party. According to him, there was an outright assignment of the leasehold right over the building to the second defendant and not a mere sub lease. The second defendant in her turn affirmed this plea of the first defendant, and pleaded in addition that the transfer to the plaintiffs was void for want of consideration, and therefore the plaintiffs had no title to recover possession of the building. She was running an oil mill in the premises. There was no privity of contract between her and the plaintiffs. She prayed for dismissal of the suit on these premises.

3. The second plaintiff went out of the array of parties after he assigned his share to Velukutty and Vijayakumaran Nair. The second defendant thereupon filed an additional written statement contending that the first plaintiff Bhaskaran could not be given any declaration of his title to the plaint schedule property. It was also alleged that being only a co-owner, he was not entitled to recover either possession of the building, or the arrears of rent.

4. I shall hereafter refer to Bhaskaran the surviving plaintiff, as plaintiff and the erstwhile second plaintiff as Sukumaran for purposes of convenience-

5. The trial court found that the plaintiff, who was only a co-owner of the plaint B schedule property, was not entitled to declaration of title or to a decree for recovery of possession of the building without the other co-sharers being on record as parties to the suit. He also found that the second defendant was only a sub-lessee from the first defendant and not a transferee of the leasehold right, but having regard to the finding that the plaintiff was not entitled to a decree in the absence of the other co-owners on record, the suit was dismissed.

6. The plaintiff appealed against this judgment and the decree. Relying on the decisions of this court in Kora Nair v. Ramadasa Kammath. 1957 KLT 627, the District Judge held that the position of the defendants-lessees, after the expiry of the lease, and the termination of the tenancy by the issue of notice u/s 106 of the Transfer of Property Act was analogous to that of trespassers and as such the co-owner plaintiff could recover possession with arrears of rent. The appeal was thus allowed and the suit decreed declaring the plaintiff''s title as co - owner of the property and allowing him to recover the plaint B schedule building with arrears of rent. The second defendant has challenged the decree in this appeal.

7. The question to be considered is whether, in the circumstances of this case, the plaintiff who is only a co-owner is entitled to recover possession of the building without the junction of the other co - owner as party to the suit. It is pointed out that the plaintiff is claiming exclusive title to the building, denying the rights of Velukutty as evident from the counter he filed to I. A. No. 3735 of 1981. As such he cannot maintain the suit without the other co-owners being in the array of parties, for which reliance is placed on the decisions in Kanakarathanammal Vs. V.S. Loganatha Mudaliar and Another, Rajabibi v. Ameerali AIR 1974 Karnataka 115, and Aswini Kumar Roy and Another Vs. Kshitish Chandra Sen Gupta and Others,

8. There is a long line of decisions taking the view that one co-owner can maintain a suit by himself for ejecting a trespasser from a property owned by him and others, either jointly or as co-owners. This is on the principle that the right of a co-owner extends to the whole of the property, jointly with others, and any step taken by him to recover it from a trespasser enures to the obvious advantage of the other joint or co-owners - Ahamed Sahib v. Magnesite Syndicate Ltd. AIR 1915 Mad. 1214 P. Thimmayya Vs. P. Siddappa, Sundarammal Vs. Sadasiva Reddiar and Others, Tuljaram Harki-sondas v. Harkisan Jaggivan AIR 1959 Bom. 244 Rama Motibhai Vs. Dalwadi Tupoo Rama and Others, . Rjmer Singh v. Shamser Singh AIR 1984 Pun 58 (FB), Andappan v. Saramma Varghese, 1986 KLT 481 and Kochara Panicker v. Sekhara Panicker, 1988 (2) K.L.T 469, among numerous others. But it is submitted that the decision of the Supreme Court in Kanakarathanammal Vs. V.S. Loganatha Mudaliar and Another, holds otherwise for which the observations in paragraph 15 of the judgment are relied on.

9. A similar contention was raised before Hegde, J. as he then was in Shivangouda v. Gangawra, AIR 1967 Mys, 143. After referring to the established view taken in the catena of decisions on the point, the learned Judge proceeded to consider the context in which the Supreme Court made the observations in Kanakarathanammal''s case and held that the Supreme Court had not purported to unsettle the position settled thus far of a co-owner''s right to institute a suit in his own right to recover possession of a property from a trespasser and that the observations in Kanakarathammal should be confined to its own facts.

10. I am in agreement with the view taken by Hegde. J. in regard to a co-owner''s right of suit as also regarding the scope of the decision of the Supreme Court. I find myself unable to agree with reasoning of Bagchi, J. in Aswini Kumar Roy and Another Vs. Kshitish Chandra Sen Gupta and Others, or his interpretation of the ratio in Kanakarathanammal.

10.a. A tenant continuing in possession of the leasehold properly after the determination of the lease by efflux of time or by the issue of a notice to quit, without the assent of the landlord, is only in the position of a trespasser, unless he is protected by a Statute like the Rent Control enactment. Such a person who is euphemistically termed a tenant at sufferance has no estate or interest in the leasehold property (Devaki v. Alavi. 1979 KLT67 (FB). See also Mulla. Transfer of Property Act, 7th Edition Page 633, where the learned author states with reference to the decisions in L. Narayan Dass Vs. Mt. Taravali, and AIR 1940 401 (Oudh) that a tenant holding over after the expiration of his term is a tenant at sufferance, which is a term useful to distinguish a possession rightful in its inception but wrongful in its continuance from a trespass which is wrongful both in its inception and in its continuance. The position of such a person is precarious and there is no relationship of landlord and tenant between him and the owner of the property.

11. A tenant continuing in possession after the determination of his tenancy, without the assent of the landlord being thus only in the position of a trespasser, necessarily the rule relating to suits against trespassers by a co-owner must apply, that is a co-owner can in his own right sue for recovery of possession from such a person, without arraying the other co-owners as parties to the suit.

This is also established by a catena of decisions like Maganlal Dulabhdas Vs. Bhudar Purshottam, , and others, including Beharilal v. Vasundarabai, AIR 1956 M.B. 35 and Ramnarain v. Kishorelal, AIR 1964 Rajasthan 79, where the law has been discussed in detail. It was this principle that was applied by this court in Kora Nair v. Ramadasa Kammath, 1957 KLT 627. In that case, the suit was filed by one of many co-owners for recovery of possession from the tenant after the tenancy was terminated by issue of notice to quit u/s 106. The learned Judge noted that the position of the lessee subsequent to the expiry of the period fixed in the lease was akin to that of a trespasser and held that recovery of possession from such a person was an act of management of the properties for the benefit of the other co-owners and therefore the suit against the quondam tenant was maintainable at the instance of one co-owner.

12. But the question still arises as to whether the plaintiff in this case can recover possession from the defendants. An exception to the rule above mentioned has been made where the suing co-owner claims exclusive title to the property in derogation or denial of the rights of the other co-owners. In such an event, the co-owner whose rights are denied or against whose interest the plaintiff is suing is a necessary party to the suit, and his absence will be fatal to the suit itself. The decision of the Madras High Court namely P. Thimmayya Vs. P. Siddappa, is in point on this question. The principle was reiterated by K.S. Hegde, J. in the Myore High Court in Shivangouda v. Gangawin AIR 1967 Mys. 143, already referred to. The entire matter was discussed by the Karnataka High Court in Rajabibi v. Ameerali AIR 1974 Kar 115 where Malimath, J. as he then was, held that if a co - sharer instituted a suit in ejectment against a trespasser, repudiating the claim of the other co - sharers and claiming exclusive title in himself, such a suit will not be "maintainable in the absence of the other co - sharers.

13. That exactly is the position here. The counter affidavit filed by the plaintiff to 1. A. No. 3735 of 1981 shows that he was setting up exclusive title to the building in question. According to him, even Sukumaran did not have any right to the building which he could convey to others. Virtually he was denying the rights of Velukutty to the building. If this be the position, when the right of the other co-owner is denied, the plaintiff cannot by himself maintain a suit without the other co-owners in the array of parties. The plaintiff had an opportunity to have them on record when Velukutty applied to get himself impleaded. But thanks to the plaintiff''s opposition, the petition stood dismissed and the plaintiff lost the opportunity of rectifying the defect in the suit. Though therefore, a co-owner could maintain a suit by himself in ejectment of a trespasser or a tenant at sufferance, the facts and circumstances of this case bring it within the above mentioned exception, warranting dismissal of the suit in the absence of the other co - owners in the array of parties. The result of the above discussion is that the suit has to fail by reason of the nonjoinder of the other co - owners of the building in question as parties to the suit The question of remitting the matter back to the trial court for affording an opportunity to the plaintiff to implead to other co - owners does not arise for consideration as the problem has been created by the plaintiff himself in objecting to the impleading of Velukutty as a party to the suit. The Second Appeal is therefore allowed and the suit O.S. No. 291 of 1980 is dismissed. But it will be open to the plaintiff to institute a proper suit with all the parties in the array for eviction, if so advised.

There will be no order as to costs.