1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.3255 OF 1992 Laxman Nana Jagtap (since deceased through L.Rs. 1 Balkabai Laxman Jagtap 2 Shivajirao Laxman Jagtap (since both deceased through L.Rs) A Smt.Kamal widow of Shivaji Jagtap B Ram son of Shivaji Jagtap C Sham son of Shivaji Jagtap D Sanjay son of Shivaji Jagtap E Tejashree daughter of Shivaji Jagtap ...Petitioners vs. Aanasaheb Yashwant Shete (since deceased through L.Rs. 1 Gundappa Annasaheb Shete 2 Sou Bebi Appasaheb Talange ...Respondents Mr.A.M.Kulkarni for Petitioner Mr.S.K.Chinchalkar for respondent no.1 CORAM :A.S.OKA,J. DATE : FEBRUARY 5, 2010 JUDGMENT : 1 Heard the submissions of the learned counsel for the parties. The challenge in this Writ Petition under Article 227 of the Constitution of India is to the decree for eviction passed against the petitioners who are the legal representatives of the original defendant. The respondents are the legal representatives of the original plaintiff. 2 2 The plaintiff filed a suit on the grounds of bonafide requirement, carrying out permanent construction, arrears of rent, acquisition of suitable residence against the defendants. The suit was contested by the defendants. The challenge is to the decree passed by both the Courts on the ground of bonafide and reasonable requirement. It must be stated here that as far as trial Court is concerned, the findings were recorded in favour of the plaintiffs on the bonafide requirement, comparative hardship, permanent construction and acquisition of suitable residence. An appeal was preferred by the defendants. In the Appeal, the District Judge held that the ground of bonafide requirement has been duly proved. The District Court recorded a finding on the issue of comparative hardship in favour of the plaintiffs. However, other two grounds viz. the Permanent construction and acquisition of suitable residence were negatived. 3 The learned counsel for the petitioners has taken me through the Judgments of the Courts below. As far as bonafide requirement is concerned, he pointed out the finding recorded by the learned District Judge, especially the finding recorded on deed of partition dated 28th July 1971. He pointed out that there was absolutely no material on record to show that 3 the landlord s son is residing in the adjacent house as a tenant. He submitted that the finding on the issue of bonafide requirement recorded by both the Courts below is perverse. He invited my attention to the additional affidavit filed by the petitioners. Along with the additional affidavit, a xerox copy of the registered sale deed dated 10th July 2008 has been annexed. The said sale deed has been executed by one Shrikant Baburao Talandge in respect of his share of in the property bearing C.T.S.No.2464 of which the suit premises forms part. It is pointed out in the affidavit that the original defendant was survived by one Gundapa (1st respondent) and Bebi ( 2nd respondent). It is pointed out in the affidavit that the said Bebi died during the pendency of the petition and her heirs have been brought on record. He pointed out that the vendor under the said sale deed Shrikant Talandge is the husband of the deceased Bebi who has transferred his undivided share equivalent 27 sq. meters in the property bearing CTS No. 2464 to petitioner no.2C. He submitted that in view of the said sale deed, the legal representative of the original defendant has become a co-owner of the larger property including the suit premises. He invited my attention to the copy of the sale deed and to the fact that the 1st respondent has filed a civil Suit against the respondent No.2a 4 -Shrikant and the petitioner no.2C-Sham for declaration that the sale deed dated 10th July 2008 is illegal. He pointed out that the said suit is being contested by the petitioner no.2C. He submitted that a reliance has been placed on the alleged Will of the original defendant which is of suspicious nature. He submitted that in any case as one of the petitioners has become co-owner, the present suit is not maintainable. He relied upon the decision of the Apex Court in case of India Umbrella Manufacturing Company and others vs. Bhagabande Agarwalla (dead) by L.Rs. Savitri Agarwalla and others [(2004) 3 SCC page 178]. He submitted that as the petitioner no. 2C being a co-owner is objecting to the suit filed by the original defendant, the decree of eviction cannot be sustained. He submitted that in any case, the order of eviction cannot be passed against one of the co-owners at the instance of the other co-owners. 4 The learned counsel for the respondents supported the impugned Judgment and Decree and submitted that no interference is called for in the impugned order. He submitted that the suit filed by the 1st respondent is pending and there is no finding recorded by any competent Court that one of the petitioners has become co-owner of the property. He has placed reliance on section 44 of the Transfer of Property Act,1882. 5 He submitted that assuming that one of the petitioners is a purchaser from co-owner , he is not entitled to possession of any particular part of the joint property and at highest the remedy of such purchaser is to file a suit for partition. He placed reliance on the decision of the Madhya Pradesh High Court in case of Lalita James and others Vs. Ajit Kumar and others (AIR 1991 MP 15) and decision of Patna High Court (AIR 1957 559) in case of Uma Shankar Chowbey Vs.Dhaneshwari and others. He , therefore, submitted that the respondents are entitled to evict the petitioners. 5 I have carefully considered the submissions. The first issue to be considered is whether bonafide need has been established. On this aspect, it must be stated that before the trial Court the original plaintiff was examined. In the examination-in-chief he stated that Balasaheb is his younger brother. He stated that he himself has a son Gundappa and a daughter. He has stated that the said Gundappa was married and he has two sons and two daughters. The said Gundapa was serving as a driver in the hospital. Thereafter, the original defendant proceed to depose regarding partition document dated 28th July 1971. He stated that the suit house in possession of the defendant has 6 been allotted to his share. He stated that after demise of his wife his children were young and therefore, he had to proceed to Malegaon to reside with his sister in law. He stated that his son was residing at Miraj in a rented room admeasuring 12 x 15 . He stated that his brother was the owner of the said room. The original plaintiff also examined his brother- Balasaheb. He also stated that the said Gundappa, a son of the plaintiff was his tenant in respect of one room. 6 It will be necessary to turn to the findings recorded by the Courts below on the issue of bonafide requirement. Reliance was placed by the learned counsel for the petitioners on the evidence on record which shows that the said Gundappa (1st respondent) was in the employment of a hospital and was residing in the quarters allotted to him. The learned trial Judge observed that there was no material produced on record to show that the plaintiff's son was residing in the quarters allotted to him by the hospital where he was employed. The appellate Court recorded a finding that the plaintiff s son was employed as a driver with a hospital of a private medical practitioner. The plaintiff brought on record that he was holding lands within the limits of the city of Miraj. The appellate court noted that the plaintiff was 7 residing at village Malgaon and therefore it is very difficult for him to cultivate the lands within the limits of the city of Miraj. It was pointed out to the Appellate Court that the original plaintiff had since expired. However, the appellate court held that need of his son Gundappa who was working as a driver was subsisting. There is a clear finding recorded by the trial Court that the plaintiff was not possessing any of the residential house in the city of Miraj. 7 Perusal of the Judgments of both the Courts below shows that as far as the issue of bonafide requirement is concerned, the evidence has been considered by both the Court and there is a concurrent finding that the requirement of family of the original plaintiff has been established. As far as the issue of comparative hardship is concerned, a finding has been recorded that the original defendant has been running a country liquor shop and he is a tax payer. The appellate court held that the original defendant was in the business of selling cattle. He was owner of an auto rikshaw and eight horse Carts. Moreover the documents produced on record show that the defendant was owner of a house in the same city. The extract of the property register card in respect of the said house showed that the defendant was in 8 possession of the said house. It was brought on record that in the month of November 1981, the original defendant executed a sale deed in respect of a house no.5122 in favour of his son. It must be stated here that even on the issue of comparative hardship, there are concurrent findings of fact recorded by both the Courts below. In writ jurisdiction , no interference is called for with the said findings. 8 Now, another issue which has to be considered is the effect of the sale deed executed during the pendency of this Petition. As stated earlier, the sale deed has been executed by the husband of the deceased Bebi who happened to be a daughter of the original plaintiff. The sale deed relates to undivided share of Shrikant which is stated to be equivalent to 27 sq. meter. It must be stated that a suit has been filed for challenging the said sale deed dated 10th July 2008. The suit has been filed by the 1st respondent Gudappa. In the said suit, reliance has been placed on the Will dated 4th August 1988 executed by the original plaintiff. Placing reliance on the Will, a contention is that the daughter of the plaintiff Bebi had no share in the larger property. The suit is being contested by the said Shrikant as well as by the petitioner no. 2C(Sham). As stated earlier, in the said suit a 9 declaration is claimed as regards the legality of the said sale deed relied upon by the petitioner. Therefore, the issue as to whether one of the petitioners has become a co-owner of the larger property will be decided in the said suit. 9 The learned counsel for the petitioners has placed reliance on a decision of the Apex Court in case of India Umbrella Manufacturing Company (supra). He placed reliance on what is held by the Apex Court in paragraph 6 of the decision which reads thus : 6...It is well settled that one of 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 and Dhannalal V. Kalawatibai 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 own 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 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 10 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. 10 If in the civil suit which is pending, the sale deed executed in favour of the said Sham Petitioner no. 2C is held to be legal and valid then naturally, the said petitioner will become one of the co-owners. The petitioners are objecting to the decree of eviction on the ground that one of them has become a co-owner. If ultimately it is held that the said Shrikant has not acquired any right, title or interest in the larger property as the said deceased Bebi had not inherited any right, it is obvious that the petitioner no.2C cannot claim to be a co- owner. 11 Therefore, as far as the merit of the decree passed for possession is concerned, no interference can be made. However,the decree for possession cannot be allowed to be executed till civil suit no.148 of 2008 is finally decided. If the said suit is finally decided upholding the status of the petitioner no.2C as a co-owner of the larger property, it is obvious that the decree cannot be executed against him. As the said petitioner no.2c has raised an 11 objection to the continuation of the proceedings for eviction, if his status as co-owner is established, the decree cannot be executed even against other petitioners. However, if in the suit it is held that the sale deed is illegal or it does not create any right in favour of the petitioner no.2C, the decree will become executable. 12 Hence, I pass the following order : i)Decree for possession is hereby confirmed. ii)The decree shall not be executed till the final disposal of the Special Civil Suit no. 148 of 2008. iii)The decree will become executable only if the sale deed in favour of the petitioner no.2C-Sham is held to be illegal or invalid. iv)Hearing of the suit is expedited. v)Rule is made partly absolute in above terms. JUDGE