1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO.206 OF 2007 Vinodkumar N. Gandhi ..Applicant. Vs. Badrinarayan S. Dave & Ors. ..Respondents. Mr. S. M. Gorwadkar i/b. Mr. Bharat H. Mehta for the Applicant. Mr. N. V. Walawalkar, Senior Counsel with Mr. D. M. Gupte for Respondent no.1. CORAM : S.J. VAZIFDAR, J. DATED : 22ND OCTOBER, 2008. P.C. : This Civil Revision Application is filed by the tenant against the order of the Lower Appellate Court confirming the decree passed by the trial Court for eviction. 2. On merits, there is little to be said in favour of the Applicant. I see no reason to interfere with the findings of the lower courts on the ground of arrears of rent, sub-letting, alternative accommodation and bona-fide requirement. These findings are based on facts. I am unable to say that the same are unsustainable, warranting interference in Revision. 2 3. For instance, as regards bona-fide requirement, it is established that there are 12 to 13 members in the Respondents family. One of the Respondents sons lives in rented premises. There are only two rooms on the second floor which are in the Respondents possession where he resides with the wife, one of his unmarried son and the members of his family of another son Ramesh. Ramesh himself does not live there due to his personal problems. 4. On the other hand, on behalf of the Applicant it is admitted that there is another house in which they reside. They however allege that the said premises are insufficient for their residence and that therefore they occupy the suit premises only at night. Thus, they do not use the residential premises during the day. 5. It has been rightly observed that the Applicant did not give any details regarding the area of the alternative accommodation. The onus was on the Applicant to do so viz. to prove their case that the same was inadequate. There was no evidence to establish that the Respondents on the other hand had any other alternative accommodation other than the one referred to above. 3 6. Faced with this, certain technical issues were raised on behalf of the Applicant. It was submitted that the Applicant is at the highest only a co-owner of the property. 7. In view of the judgment of the Supreme Court in India Umbrella Manufacturing Co. & Ors. v. Bhagabandel Agarwalla (Dead) by Lrs. Savitri Agarwalla (Smt.) & Ors., (2004) 3 Supreme Court, 178, a suit by one of the co-owners is permissible. In paragraph 6, the Supreme Court observed as under :- “6. Having heard the learned counsel for the parties we are satisfied that the appeals are li- able 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. Ja- gannath1 and Dhannalal v. Kalawatibai2, SCC para 25.) This principle is based on the doc- trine 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 with- draw 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 ad- judged 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 opera- tion of law.” 4 8. Mr. Gorwadkar's reliance upon the judgment of the Supreme Court in SK. Sattar SK. Mohd. Choudhari v. Gundappa Amabadas Bukate, (1996) 6 Supreme Court Cases, 373 is not well founded. It is necessary to note that in that case a shop admeasuring 23 ft. x 19 ft. was let out to the Respondent. The shop was originally owned by the Appellant's father upon whose death the Appellant and his three brothers inherited the same. After the death of the father, the eldest brother was managing the property. The shop was let out to the Respondent in 1964 when the Appellant was still a minor. The Respondent continued paying the rent to the eldest brother. Thereafter, there was a partition amongst the brothers and a portion of the shop admeasuring 23 ft. x 12 ½ ft. fell in the share of the Appellant. Thereupon the Appellant informed the Respondent of the partition and called upon him to pay the rent to him. The Respondent having failed to comply with the requisition, the Appellant terminated his tenancy and filed a petition under the Hyderabad House (Rent, Eviction and Lease) Control Act, 1954 for the eviction of the Respondent on the ground of default for payment of rent and for personal leave. The Supreme Court held as under :- “9. The basic principle of the Transfer of 5 Property Act, 1882 is that where a premise is let out by several co-owners or joint owners or co-lessors, any one of them cannot sue the tenant either for his share of rent or for partial eviction on the ground that he being the co- owner had a right not only to collect his share of rent but also to evict the tenant from his portion of the premises. The unity of estate is, undoubtedly, indivisible but the indivisibility is not perpetual. In order to remove the obses- sion with which the High Court suffered, it is necessary to look to various provisions of the Transfer of Property Act (for short, “the Act”). (emphasis supplied) It is in these circumstances that the Supreme Court in paragraph 37 relied upon by Mr. Gorwadkar held as under :- “37. In view of the above discussion, it is ob- vious that the law with regard to the splitting of tenancy is not what the High Court has set out in the impugned judgment. As pointed out earlier, a co-sharer cannot initiate action for eviction of the tenant from the portion of the tenanted accommodation nor can he sue for his part of the rent. The tenancy cannot be split up either in estate or in rent or any other obligation by unilateral act of one of the co- owners. If, however, all the co-owners or the co-lessors agree among themselves and split by partition the demised property by metes and bounds and come to have definite, posi- tive and identifiable shares in that property, they become separate individual owners of each severed portion and can deal with that portion as also the tenant thereof as individu- al owner/lessor. The right of joint lessors con- templated by Section 109 comes to be pos- sessed by each of them separately and inde- pendently. There is no right in the tenant to prevent the joint owners or co-lessors from partitioning the tenanted accommodation among themselves. Whether the premises, which is in occupation of a tenant, shall be re- tained jointly by all the lessors or they would partition it among themselves, is the exclusive right of the lessors to which no objection can be taken by the tenant, particularly where the tenant knew from the very beginning that the property was jointly owned by several per- sons and that, even if he was being dealt with 6 by only one of them on behalf of the whole body of the lessors, he cannot object to the transfer of any portion of the property in favour of a third person by one of the owners or to the partition of the property. It will, how- ever, be open to the tenant to show that the partition was not bona fide and was a sham transaction to overcome the rigours of Rent Control laws which protected eviction of the tenants except on specified grounds set out in the relevant statute.” The above observations do not support Mr.Gorwadkar's submission that a co-owner cannot file a suit for eviction. In the present case, Respondent no.1 did not file the suit for his share of rent or for partial eviction. Even assuming that he filed the suit as a co-owner, he did so with respect to the entire rent qua the Appli- cant and for eviction of the entire tenanted premises and not merely a portion thereof. 9. I find no inconsistency or conflict between the judgment in SK. Sattar SK. Mohd.' s case and the judgment in India Umbrella' s case (supra). 10. The suit premises are situated in a larger property which was originally owned by one Hansabai. Upon her death, her daughters Smt. Kalawati and Smt. Shantabai inherited the property as co-owners. Kalawati expired in the year 1988. Thereupon her son Narayan became a joint owner of the property with Shantabai. 11. In the meantime, on 9.10.1973 the Applicant was 7 inducted as a tenant on the ground floor of commercial premises. In 975 the Applicant was inducted into residential premises on the first floor. Each of the rooms admeasures about 400 sq. ft. 12. By a registered deed dated 28.2.1991, Shantabai sold her half share in the property to Respondent no.1, the Plaintiff. On 28.2.1993 Respondent no.1 informed the Applicant regarding the same and called upon him to pay the rent. According to the Petitioner, the rent was not paid to Respondent no.1 as Narayan disputed the purchase. 13. It is pertinent to note however that Narayan though aware of the suit, took no steps to oppose the filing thereof by Respondent no.1 alone. He was examined as the Applicant's witness. His evidence, to say the least, does not support the Petitioner's case in any manner. It in fact supports the case of Respondent no.1. He admitted that there was an oral partition between Shantabai from whom Respondent no.1 acquired inter- alia the suit premises. Narayan admitted in his evidence that he sold the portion of the property coming to his share by a registered sale deed dated 4.7.2000 and that his purchasers became the owners thereof. He also admitted that the remaining portion was owned 8 by Respondent no.1. This is so recorded by the impugned judgment. That the recording is a correct transaction of the evidence in Marathi is not disputed even before me. The courts below have analysed the evidence in this regard in detail. For instance, in paragraph 30, the Lower Appellate Court has referred to the sale deed executed by Narayan and referred to the contents thereof which specify the boundaries of the property. Separate property cards have been issued in respect of the two portions. The name of the Plaintiff has been entered in the property card of that portion of the property wherein the suit premises are situated. The entry is as per the sale deed executed by Shantabai in favour of Respondent no.1. 14. The said Narayan has taken full advantage and benefit of the portion of the property coming to his share and has dealt with the share independent of the co-owner of the remaining property. The Lower Appellate Court was therefore entirely justified in coming to the conclusion that Narayan was aware of the fact that his portion of the property was separate and independent from that of Respondent no.1 and therefore entered into agreements in respect thereof. 15. The case of Respondent no.1 viewed either way, 9 therefore is well founded. 16. In the circumstances, the Civil Revision Application is dismissed. The time to vacate is extended utpo 31.1.2009 subject to the Applicant filing the usual undertaking on or before 30.11.2008.