IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.: 226 of 1997 & Cross Objection No. 296 of 1997 Reserved on : 13.11.2009. Date of decision : 03.12.2009 Kedar Nath …Appellant. Versus Sunil Kumar and others …Respondents Coram The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for reporting?1 No. For the Appellant: Mr. Neeraj Gupta, Advocate. For the Respondents: Mr. K.D.Sood, Advocate. Deepak Gupta, J. This Regular Second Appeal is directed against the judgement of the learned District Judge, Kangra in Civil Appeal No. 19-P-XIII/1996 decided on 18.7.1997 whereby he has allowed the appeal of the plaintiffs and set-aside the judgement and decree of the learned trial Court dated 18.11.1995 dismissing the suit of the plaintiff. The plaintiffs have also filed cross-objections wherein their grievance is that the District Judge should have also awarded mesne profits/use and occupation charges in favour of the plaintiffs and against the defendant. Briefly stated the facts of the case are that Shri Thakar Dass, predecessor-in-interest of the respondents here-in filed a suit seeking eviction of the defendant Chandermani, predecessor-in- interest of the present appellant from a shop measuring 15x15 feet alongwith godown situate in Khata No. 126 min, Khatauni No.484, Khasra No.1731, in Mohal Kothi, Mauja Paprola, Tehsil Baijnath, District Kangra (here-in-after referred to as the suit property). 1 Whether the reporters of the local papers may be allowed to see the Judgment? Yes. 2 According to the plaintiff he had rented out the suit property to the defendant on a monthly rental of Rs.10/- per month. The tenancy was terminated by serving a notice under Section 106 of the Transfer of Property Act dated 23.2.1988 served on the defendant on 12.3.1988. It was further alleged that the defendant is in arrears of rent w.e.f. 1.3.1985 to 29.2.1988. On these grounds eviction of the defendant was prayed for and it was further prayed that a decree for possession of the suit property be granted in favour of the plaintiff. The defendant resisted the suit on various grounds. The two main grounds raised were that the plaintiff is not the owner of the suit premises and that there is no relationship of landlord and tenant between the plaintiff and the defendant. The case of the plaintiff was that in fact the suit property was part of the land which was Shamlat and was donated by the proprietors to one Shri Baba Mangal Sain Bairagi prior to 1951-52. The said Baba had constructed a temple and suit premises on the land in question after collecting public donations and the defendant was appointed as Mohtmim (Manager) of the said charitable endowment and was in possession of the land/property in the said capacity. It was also prayed that the suit was bad for non-joinder of necessary parties. The learned Trial Court dismissed the suit after holding that the defendant is in possession of the suit property without payment of rent. It further held that there is no evidence to show that the defendant was inducted as tenant on the suit property. The learned trial Court further went on to hold that the suit filed by the plaintiff for possession simpliciter would not be maintainable 3 since the plaintiff was claiming exclusive ownership of the suit property against the interest of the other co-sharers. The suit was held to be not maintainable on this ground. An appeal was filed by the plaintiff challenging the decree of the learned Trial Court. The learned District Judge held that the suit property was owned by the plaintiff with other co-owners. He went on to hold that one of the co-owners is also competent to file the suit and accordingly allowed the appeal and decreed the suit of the plaintiff. Hence the present appeal by the defendant. When the appeal was admitted no substantial question of law was framed. After going through the entire evidence, I find that the following substantial questions of law arise for decision in the present case :- 1. Whether one of the alleged co-owners of a joint property is entitled to serve valid notice and maintain a suit for eviction or possession of the tenant/occupier or all the co-owners are necessary parties to the proceedings, especially when the one co- owner claims to be the exclusive owner of the property?. 2. Whether the entries in the revenue record have been misread by the learned Lower Appellate Court holding the plaintiff-respondent to be the owner of the suit property and the defendant-appellant to be tenant under him? To appreciate the rival contentions of the parties, it would be appropriate to refer to the revenue record. The first revenue entry proved on record is the Jamabandi for the year 1960-61 (Ext.D-6), which shows that the land comprised in Khasra No. 462 and 462 min which consists of one gair mumkin Dukan in Khasra No.462, one gair mumkin Mandir and gair mumkin Abadi in 4 Khasra No. 462 min, are shown as Shamlat land, i.e. owned by the village proprietary body and Udho Ram S/o Parma Nand, Tulsi Ram, Thakur Dass, etc. are shown in possession through the Manager Chandermani. Therefore, Chandermani defendant is shown in possession of the entire land as Manager in the year 1960-61. In the Jamabandi for the year 1963-64, Ext. D-5, the land is shown in the ownership of the Panchayat and the same persons are shown to be the cultivators but the possession is of Chandermani S/o Sukh Ram. Ext.D-4, is the copy of Jamabandi for the year 1963-64. Again the land is shown as Shamlat and the cultivators are shown to be Udho Ram S/o Parma Nand, Tusi Ram, Thakur Dass, etc. In the jamabandi the possession of Chandermani is shown as gair marusi. In the column of rent it is shown that no rent is being charged and the entries is “Dharmarth”. Ext.D-3 is the jamabandi for the year 1979-80. Again the land is shown as Shamlat land with a number of co- owners and Chandermani is shown to be in possession as gair marusi and column of rent shows the rent as Dharmarth. Ext.D- 1 is the jamabandi for the year 1988-89 in which the entries are the same. The ownership is of the Shamlat through Udho Ram, Tulsi Ram, Thakar Dass, Saral, Vishnu, Kirpa, Dhanoo, Mehar Chand, etc. through Chandermani gair marusi. This entry is in respect of Khasra No.1724/1, which is agricultural land. Khasra No.729, which is gairmumkin Makan and Khasra No.731 which is gair mumkin Dukan. Again in the column of rent no rent is mentioned and it is shown as having been given on Dharmarth. 5 The case of the defendant was that the suit land alongwith other land was donated by the person in possession of the same to Baba Mangal Sain Bairagi who had constructed the suit premises and temple therein and no relationship of landlord and tenant exists between the parties. The defendant also claimed to be owner of the land. The learned Trial Court held that though in the first two entries the defendant No.1 was shown to be Manager of the temple and the Abadi he was not shown as Manager of the shop. This is not correct because a bare perusal of the documents shows that Chandermani was shown as Vahi Tmam (Manager) of the three parcels of the property. In the column of rent of all the three parcels it was mentioned as Dharmarth. The learned trial Court has relied on the entries Ext.D/1 to Ext.D/4, i.e. Jamabandi for the year 1973-74, 1979-80, 1983-84 and 1988-89 in which the plaintiff alongwith number of other persons is shown to be in the column of Hisaidari possession through Chandermani recorded as gairmarusi. Again the entry of gairmarusi is common to all the Khasra Number properties. The learned Trial Court, therefore, held that the defendant was not a manager of the shop. It would be pertinent to mention that counsel for the plaintiff conceded during the course of arguments that he does not dispute to claim of the defendant in respect of Khasra No.1724 and 1729 i.e. the agriculture land and the Abadi area but only contests the claim of the defendant with respect to the shop in question. The learned trial Court held that the defendant was only manager of a portion of the property and not the entire portion. 6 I have gone through the entire evidence produced in this case and I find that, throughout, in all the revenue entries the suit property has been depicted as Dharmarth meaning thereby that it has been dedicated for charitable purposes. In Ext.D/5 and Ext.D/6 the possession of the entire suit land is that of defendant Chandermani shown as Vahi Tmam. The learned Trial Court has wrongly read the entry of Vahi Tmam to be only in respect of the Mandir and Abadi. In fact this entry of Vahi Tmam is in respect of the entire suit land. Thus the trial Court committed a grave error while reading the entire evidence. No doubt, the defendant was shown to be gair marusi, which would mean that he was a tenant but as already stated above in the column of rent no rent is shown and the property shown to be Dharmarth. It appears that the entry of gair mumkin is a formal entry. No material has been brought about to show why the entry was changed from Vahi Tmam (Manager) to gair marusi. True it may be that there is no proof that the property was donated by the co-owners to Baba Mangal Sain Bairagi but the revenue record also clearly shows that the property in question was meant for charitable purposes. In fact the plaintiff himself states that he had got the temple constructed in the year 1983-84 and the temple was being looked after by the defendant. He admits that all members of the public visit the temple and further admits that the defendant is residing there for the 20-22 years. The Plaintiff claimed that he had inducted the defendant as a tenant in the shop at the rent of Rs. 10/- per month but could not prove this fact. 7 From the evidence on record, it appears that the property in question was dedicated by the owners for charitable purposes and therefore, depicted as Dharmarth and used for temple, etc. Even the plaintiff’s witness states that the defendant has been looking after the temple and has been residing in the shop for the last 35- 37 years. It is more than evidence that the land in question was Shamlat land and the village proprietary body decided to construct a temple thereon. It is also proved that for almost 35 years prior to the filing of the suit the defendant has been looking after the temple. He is, therefore, virtually the manager of the temple. No other person has been shown to be managing the temple. If the entire evidence is gone through it is apparent that no relationship of landlord and tenant exists between the parties. The learned lower Appellate Court without giving any reason has virtually presumed that the relationship of landlord and tenant exists. In view of the fact that it stands proved that Chandermani was working as Pujari in the temple and was looking after the temple, it is just and reasonable to hold that the entries showing him to be manager of the entire suit property is correct and the change in the entries which showed him to be gair marusi are formal in nature especially when the land continue to be shown as Dharmarth in the column of rent. Since no rent was being paid the question of the defendant being a tenant does not arise at all. Therefore, the plaintiffs have failed to prove that the defendant was a tenant in the premises hence the question of payment of mesne profits/use and occupation charges by the defendant does not arise. 8 The next question which arises is, whether even if it is presumed that Thakar Dass is one of the co-owners of the property and the defendant has no right to the same, can this suit be held to be maintainable. The Apex Court in Sri Ram Pasricha vs. Jagannath and others, AIR 1976 SC 2335, held that when a tenant denies the title of the landlord he is liable for eviction. There can be no quarrel with this proposition. But if the very tenancy is denied then the person in possession can deny the ownership also. The Apex Court in this case held that a suit by one of the co-owners for eviction of the tenant was maintainable. However, when one co-owner files a suit he must admit the right of the other co-owners and his suit must be filed on behalf of the entire body of owners. When one of the co-owners files a suit claiming to be the sole owner and it is proved that he is not the sole owner of the property then in my view the suit would not be maintainable. Reference in this behalf may be made to a judgement delivered by Full Bench of the Calcutta High Court in Ratanlal Bansilal and others vs. Kishorilal Goenka and others, AIR 1993 Calcutta 144, wherein the Calcutta High Court held as follows:- “149. The rule that a co-owner may maintain an action to eject a trespasser without joining other co-owners in such action can have no application. Where a co-owner seeks to evict a tenant who is in possession of the property after determination of the lease, such a tenant can be evicted only by an action taken by all co-owners. 150. In the case before us it cannot be said that one co-owner issued the notice acting for himself and also acting on behalf of the other co-owner. As a matter of fact, here the case is also not that one co-owner singly has asked the tenants to quit. The case 9 here is that one co-owner along with a third party pretending to be the co-owner to the denial of the title of the lawful co-owner issued the notice for ejectment and also filed the suit. A learned Single Judge of this Court in Beli Ram versus Smt. Sunehru and another, 1980 Sim.L.C.158, held as follows:- “It is an established proposition of law that a co-owner can sue a trespasser for possession and can successfully get a decree for possession against the trespasser provided he sues on behalf of all the co-sharers or for the benefit of all the co-sharers and does not deny the title of other co-sharers.” The authorities relied upon by the learned trial Court holding that one of the co-owners is entitled to file an eviction petition against a tenant i.e. Niranjan Dass vs. Trilok chand, 1991 (2) S.L.J.892 has no application since that relates to eviction proceedings filed under the Rent Control Act where any landlord can file the petition for eviction. In the present case, Thakar Dass, plaintiff never terminated the tenancy on behalf of the entire body of co-owners nor did he file the suit on behalf of entire body of co-owners. Therefore, the suit in my opinion would not be maintainable. In view of the above discussion, I decide question No.1 in favour of the appellant and hold that in a suit for joint property a co-owner cannot maintain a suit for eviction or possession thereof if he claims to be the sole owner of the property i.e. his interest is adverse to that of the other co-owners. As far as question No.2 is concerned, I am of the considered view that both the Courts below have totally misread the evidence. The evidence clearly establishes that the property in question was dedicated for charitable purposes 10 and the defendant is in possession of the same as Manager thereof. The findings of both the Courts below holding that the defendant was not the manager of the suit property are set-aside. It is further held that even if the suit is treated to be a suit for possession the same is not maintainable since the other co-owners were not impleaded as parties. In view of the above discussion, the appeal is allowed and the judgement and decree of the learned lower appellate Court is set-aside and the suit of the plaintiff is dismissed. The cross- objections are also dismissed. There shall be no order as to costs. During the pendency of the appeal the appellant was directed to deposit the use and occupation charges which amounts is lying deposited in the Court. Since the appellant succeeded in the appeal the said amount alongwith interest, if any, accrued thereupon is directed to be refunded to the appellant. 3rd December, 2009 ( Deepak Gupta ) ™ Judge.