One co-owner, in the absence of any objection from the other co-owners, can maintain an action for eviction against a tenant, without impleading all the co-owners. The governing principle is the doctrine of agency. When one co-owner institutes a suit for eviction against the tenant, it is construed as the suit having been instituted in his own right and also as an agent of the other co-owners. What is of importance is the jural-relationship of the landlord and tenant. Once a co-owner satisfies the description of the landlord, the fact that the other co-owners have not joined in action pales in significance and does not affect the maintainability of the suit. Of course, different considerations come into play when existence of a dispute between the co-owners as regards the institution of the very action of eviction, is brought to the notice of the Court.
A reference in this context can be made to a decision of the Hon’ble Supreme Court in the case of Mohinder Prasad Jain v. Manohar Lal Jain, (2006) 2 SCC 724, wherein it was held as under:
“This question now stands concluded by a decision of this Court in India Umbrella Manufacturing Co. v. Bhagabandei Agarwalla (Dead) by Lrs. Savitri Agarwalla (Smt.), (2004) 3 SCC 178,wherein the Hon’ble Court opined:
“ 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.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 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 proceeding before the Rent Controller that he had taken 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.
This aspect was again considered by the Hon’ble Supreme Court in the case of Boorugu Mahadev and Sons v. Sirigiri Narasing Rao, (2016) 3 SCC 343, in the context of the proceedings between a landlord and tenant, governed by the rent control legislation. The Supreme Court enunciated that the concept of ownership and consequently the right to sue, in such cases, has to be distinguished from the one in a title suit. The observations in the said judgment are extracted below:
“ It is also now a settled principle of law that the concept of ownership in a landlord-tenant litigation governed by Rent control laws has to be distinguished from the one in a title suit. Indeed, ownership is a relative term, the import whereof depends on the context in which it is used. In rent control legislation, the landlord can be said to be the owner if he is entitled in his own legal right, as distinguished from for and on behalf of someone else to evict the tenant and then to retain control, hold and use the premises for himself. What may suffice and hold good as proof of ownership in landlord-tenant litigation probably may or may not be enough to successfully sustain a claim for ownership in a title suit. (vide Sheela v. Firm Prahlad Rai Prem Prakash, (2002) 3 SCC 375).” Madhuri Doulatram Choitram v. Lachmandas Tulsiram Nayar, 2019 SCC Online Bom 6111.