Judgment:
Sanjay Karol, J.
1. The petitioner-judgment debtor (referred to as the defendant) has filed the present petition under Article 227 of the Constitution of India, assailing the order dated 2.5.2009 passed in execution Petition No. 10-10/2008, titled as R.K. Madan and Anr. v. Simtni Karol, by the Civil Judge (Junior Division), Court No. 5, Shimla. The objections to the execution of the decree stands dismissed. The respondents herein are the decree-holders (referred to as the plaintiffs).
2. Civil Suit No. 61-1/2003, titled as R.K. Madan and Anr. v. Simmi Karol, was decreed in terms of judgment and decree dated 6.7.2007 by the Civil Judge (Jr. Division), Court No. (V), Shimla. The relationship between the plaintiffs, Sh. R.K. Madan and Ms. Rita Madan and the defendant, Smt. Simmi Karol, was held to be that of a licensors and licensee and the suit was decreed wherein the defendant was directed to hand over the vacant and peaceful possession of the suit property to the plaintiffs and also pay mesne profits @ Rs. 40,000/- per month with effect from 1.7.2003.
3. Aggrieved defendant filed Appeal No. 35-S/13 of 2007, which was also dismissed by the Additional District Judge (Fast Track Court), Shimla, in terms of its judgment and decree dated 17.9.2000. In the defendant's regular Second Appeal No. 450 of 2007 in terms of judgment and decree dated 23.4.2008, this Court upheld the decree passed by the Courts below.
4. Special Leave Petition No. 14000 of 2008 filed by the defendant, assailing the judgment and decree dated 23.4.2008 was unconditionally withdrawn on 17.11.2008. Thereafter, defendant filed Civil Review Petition No. 75 of 2008, which also stands dismissed by this Court by way of a separate judgment in today's date.
5. There being no impediment and the decree having become executable, the plaintiffs filed Execution Petition No. 10-10/2008 before the Court having competent jurisdiction which was opposed by the defendant by filing objections. After considering the respective contentions and submissions made at the Bar, the executing Court dismissed the objection petition in terms of impugned order dated 2.5.2009. Hence the present proceedings.
6. I have heard the learned Counsel for the parties and also perused the record.
7. The attack essentially is on the ground that while deciding the objection petition, no reasons have been assigned by the Court below. According to Mr. Sharma, learned senior Counsel in the Civil Suit the plaintiffs had deliberately concealed the factum of the suit property being owned by yet another member of the family, hence the suit was not maintainable. In the absence of any partition, each co-sharer was owner of each and every inch of the property and as such the decree had become unexecutable. This question has not been considered by the Court below in its right perspective and answered accordingly. In support of the contention, reliance has been placed on paras 9 to 12 of the decision of the Apex Court in Sri Ram Pasricha v. Jagannath and Ors. : (1976) 4 SCC 184.
8. In the objection petition, judgment debtor has raised various objections, which I propose to deal as under:
The decree having become unexecutable due to concealment of material facts:
In the objection petition, the judgment-debtor has so pleaded:(8). That the decree in question has been obtained by concealment of material facts from this Hon'ble Court. The entire suit and entire proceedings no way discussed that a Third person i.e. Smt. Bindu is having a right in the property. The entire suit and proceedings shows that DHs have claimed those to be exclusive owner in possession and thus, decree in question has been obtained by concealment of material facts and thus the decree is not executable.
9. In reply, thereto the plaintiffs while admitting that Smt. Bindu also was one of the co-owners of the property has taken a stand that the licence in favour of the defendant was created only by them, hence they had a right to file the suit which was totally maintainable.
The Court below has decided the said objection by recording the following findings:
The another major objection taken by the JD is that the DH has concealed the material facts as there is a third owner of the suit property i.e. namely Smt. Bindu and further that as per Misal Haquit the suit property is owned by State of H.P., and DHs are only shown as occupiers. To this point also I do not find any merit in the contention of the JD. It is well settled law that for the purpose of obtaining the possession, it is not necessary that all the owners of the property should be made a party in the suit. One co-owner can do this. Even otherwise, the JD is estopped to raise such objections in view of the fact that she has herself admitted the status of the DH as her landlord. A licence deed was duly executed by her in favour of DHs, upon which the judgment and decree in the suit was passed. Thus, the JD cannot dispute the status of DHs being owners of the suit property. She has herself admitted the DHs as the owners of the suit property. Accordingly, she is estopped to deny the title of DHs qua suit property.
10. No doubt, the Court below has not elaborately dealt with the matter while deciding the question, but, however, in my considered view the question as to whether a suit filed by the co-owner, without impleading the other co-owners is maintainable or not is no longer res integra.
11. The issue stands already decided by the Apex Court in Sri Ram Pasricha (supra), Kanta Goel v. B.R. Pathak and Ors. : (1977) 2 SCC 814, Tej Bhan Madan v. II Additional District Judge and Ors. : (1988) 3 SCC 137, Pal Singh v. Sunder Singh (dead) by LRs and Ors. : (1989) 1 SCC 444, S.K. Sattar S.K. Mohd. Choudhari v. Gundappa Ambadas Bukate : (1996) 6 SCC 373, Dhanna Lal v. Kalaxvatibai and Ors. : (2002) 6 SCC 16, India Umbrella Manufacturing Company and Ors. v. Bhagabandei Agarwalla (dead) by LRs Savitri Agarwalla (Smt.) and Ors. : (2004) 3 SCC 178, Mohinder Prasad Jain v. Manohar Lal Jain : (2006) 2 SCC 724 and Ramanlal Bhailal Patel and Ors. v. State of Gujarat : (2008) 5 SCC 449.
12. In Sri Ram Pasricha (supra), the Court was dealing with the facts where Jagan Nath as co-owner of the suit property filed a suit for eviction on the grounds of default in payment of rent and personal requirement against Sri Ram Pasricha. The trial Court and the lower Appellate Court decreed the suit on merits. However, the learned Single Judge of the High Court reversed the decision, but the Division Bench restored the trial Court's order, which was assailed by Sri Ram Pasricha before the Apex Court. The Apex Court held that a co-owner was as much an owner of the entire property as any sole owner of the property was and reiterated that jurisprudentially it was not correct to say that a co-owner of the property was not its owner as he owns every part of the composite property along with others and it cannot be said that he is only a part-owner or a fractional owner of the property. The position would change only when partition takes place and it could not be contended that the co-owner of the premises was not the owner of the premises within the meaning of the provisions of West Bengal Premises Tenancy Act, 1956. The Court was of the opinion that the plea pertained to the domain of the frame of the suit as if the suit was bad for non-joinder of other plaintiff, which plea should have been raised, of whatever its worth, at the earliest opportunity.
13. The law laid down by the Apex Court Sri Ram Pasricha (supra), has been consistently followed in its subsequent decisions as referred to hereinabove.
14. The Apex Court in Pal Singh (supra), after taking into account Sri Ram Pasricha (supra) has held that under the general law, in a suit between landlord and tenant question of title to the lease property was irrelevant and it would be inconceivable to throw out the suit on account of non-impleading of other co-owner.
15. The Apex Court in SK. Sattar SK. Mohd. Choudhari (supra), has observed that '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 retained 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 persons and that, even if he was being dealt with 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'.
16. Subsequently, in Dhanna Lal (supra), the Apex Court while noticing the earlier view taken in various judicial pronouncements held as under:
It is well settled by at least three decisions of this Court, namely, Sri Ram Pasricha v. Jagannath and Ors. Kanta Goel v. B.P. Pathan and Ors. and Pal Singh v. Sunder Singh (dead) by Lrs. and Ors. that one of the co-owners can alone and in his own right file a suit for ejectment of tenant and it is no defence open to tenant to question the maintainability of the suit on the ground that other co-owners were not joined as parties to the suit. When the property forming subject matter of eviction proceedings is owned by several owners, every co-owner owns every part and every bit of the joint property along with others and it cannot be said that he is only a part owner or a fractional owner of the property so long as the property has not been partitioned. He can alone maintain a suit for eviction of tenant without joining the other co-owners if such other co-owners do not object, in Shri Ram Pasricha's case (supra) reliance was placed by the tenant on the English rule that if two or more landlords institute a suit for possession on the ground that a dwelling house is required for occupation of one of them as a residence, the suit would fail; the requirement must be of all the landlords. The Court noted that the English rule was not followed by the High Courts of Calcutta and Gujarat which High Courts have respectfully dissented from the rule of English law. This Court held that a decree could be passed in favour of the plaintiff though he was not the absolute and full owner of the premises because he required the premises for his own use and also satisfied the requirement of being 'if he is the owner', the expression as employed by Section M(1)(f) of W.B. Premises Tenancy Act, 1956.
(Emphasis supplied)
17. The earlier view taken by the Apex Court in Sri Ram Pasricha (supra) was reiterated in India Umbrella Manufacturing Company and Ors. (supra), where it was so held that one of the co-owners can file a suit for eviction of a tenant in the property generally owned by co-owners. The principle is based on the doctrine of agency as 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.
18. However, Mr. Sharma, learned senior Counsel assisted by Mr. Shrawan Dogra, has invited my attention to paras 9 to 12 of the report in Sri Ram Pasricha (supra), to contend that the Supreme Court did not overrule the view taken by the High Courts of Calcutta, Madras and Bombay as referred to therein, from which it can be inferred that the suit filed by a co-owner, without impleading the co-sharers would not be maintainable and all co-owners must necessarily join in a suit to recover the property unless the law otherwise provided.
19. Both the learned Counsel for the parties stated at the Bar that no binding precedent, other than the one noticed by the Apex Court in Sri Ram Pasricha (supra) was available. The reports mentioned in paras 9 to 12 were also not made available and reference thereto was made only on the basis of the observations made by the Apex Court in the relevant paragraphs.
20. The contents of paras 9 to 12 of the report are reproduced as under:
9. Mr. Tarkunde referred to certain decisions in support of the submission that a suit by one of the co-sharers for eviction of a tenant has always been held to be incompetent. Counsel relied upon the decision in Bollye Satee v. Akram Ally ILR (1879) Cal 961. This was a case in which it was held that a lessee of a jalkar cannot be ejected by a suit brought by one only of the several proprietors all of whom had granted the lease. This case, with its own facts is, therefore, of no aid in the present controversy.
10. In Kattusheri Pishareth Kanna Pisharody v. Vallotil Manakel Narayanan Somayajipad ILR (1878) Mad 234 the suit was brought by the plaintiffs on behalf of an association (sabha) to recover certain lands demised by the sabha. It was held that all the co-owners must join in a suit to recover property unless the law otherwise provides. This decision will again be of no assistance to the appellant.
11. In Balkrishna Sakharam v. Moro Krishna Dabholkar ILR (1897) Bom 154, it was a case of one of the co-sharer-Jagirdars who as a manager filed a suit for recovery of Rs. 99/- being the balance due to him on account of the highest rate of assessment for the three years preceding the suit. The defendant disputed the plaintiffs right to demand the highest rate of assessment and contended that the plaintiff had no right to sue alone as he and his co-sharers owned the jagir and the defendant cultivated the land in that village by paying the jagirdars something less than the full assessment prior to the years in the suit. It was in that context that the following observation appears in the judgment which is relied upon by Counsel:
We must, therefore, treat it as settled law that a co-sharer who is manager even with the consent of his co-sharers cannot maintain a suit by himself and in his own name to eject a tenant who has failed to comply with a notice calling on him to pay enhanced rent.This proposition of law also purports to be in line with the two earlier decisions relied upon by Counsel and is of little aid to him.
12. In Dwarka Nath Mitter v. Tara Prosunna Roy ILR (1890) Cal 160 the objection of the defendant was to the form of the suit and it was pressed from the very commencement by the defendant. This was a suit by the plaintiffs for balance of arrears of rent making other co-sharers as defendants. The Court held that unless the co-sharers had refused to join in the suit or had otherwise acted prejudicially to their interests the plaintiffs were not entitled to sue alone. In this view of the matter the suit was dismissed. We do not see how this decision can come to the assistance of the appellant.
(Emphasis supplied)
Importantly, while dealing with the precedents the Apex Court in para 9 itself noticed the facts of Bollye Satee v. Akram Ally (supra) by stating that, 'This was a case in which it was held that a lessee of a jalkar cannot be ejected by a suit brought by one only of the several proprietors all of whom had granted the lease.
(Emphasis supplied)
Similarly in Balkrishna Sakharam v. Mow Krishna Dabholkar (supra), the Apex Court in para 11 noticed the facts by stating that 'The defendant disputed the plaintiffs right to demand the highest rate of assessment and contended that the plaintiff had no right to sue alone as he and his co-sharers owned the jagir and the defendant cultivated the land in that village by paying the jagirdars something less than the full assessment prior to the years in the suit.
(Emphasis supplied)
21. The facts as mentioned in paras 9 and 11 of the report are totally distinguishable. No doubt the facts as noticed by the Apex Court in paras 10 and 12 supports the defendant's contention but, however, I am not inclined to agree with the same for the following reason (i) the reports, as such, have not been made available for perusal and consideration; (ii) the Apex Court did not decide the issue as is sought to be raised herein, (iii) the position in law has changed as much water has flown since then (iv) The matter is at the stage of execution of a decree and not trial of the suit (v) the civil Court did not lack inherent jurisdiction (vi) the objection was taken for the first time in the execution petition and (vii) the agreement was executed only between the parties to the lis, hence the defendant is legally estopped to raise the issue keeping in view the provisions of Section 116 of the Evidence Act, 1872 and (viii) the plaintiffs are as much an owner of the entire property as the third owner is and there is no dispute or claim to the contrary inter se between the owners.
Section 116 of the Evidence Act reads as under:
116. Estoppel of tenant and of licensee of person in possession.-No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property; and no person who came upon any immovable property by the licence of the person in possession thereof, shall be permitteed to deny that such person had title to such possession at the time when such licence was given.
(Emphasis supplied)
The principal of estoppel apply equally to a tenant and a licensee.
22. The Constitution Bench of the Apex Court in Atyam Veerraju and Ors. v. Pechetti Venkanna and Ors. : AIR 1966 SC 629, itself held that during the continuance of the tenancy, the tenant cannot acquire by prescription a permanent right of occupancy in derogation of the landlord's title by mere assertion of such a right, to the knowledge of the landlord.
23. In Anar Devi (Smt.) v. Nathu Ram : (1994) 4 SCC 250, the Apex Court took into account the views of Jessel, M.R., who adverted to 'doctrine of tenant's estoppel' in Stringer's Estate, Shaw v. Jones-Ford, where it was held as under:
Where a man having no title obtains possession of land under a demise by a man in possession who assumes to give him a title as tenant, he cannot deny his landlord's title, as, for instance, if he takes for twenty-one years and he finds that the landlord has only five years' title, he cannot after five years set up against the landlord the jus tertii, though, of course, the real owner can always recover against him. That is a perfectly intelligible doctrine. He took possession under a contract to pay rent so long as he held possession under the landlord, and to give it up at the end of the term to the landlord, and having taken it in that way he is not allowed to say that the man whose title he admits and under whose title he took possession has not a title. That is a well-established doctrine. That is estoppel by contract.
24. The doctrine of estoppel as laid down in Cuthberton v. Irwing 28 LJ Ex 306, has been noticed by the Supreme Court in Tej Bhan Madan v. II Additional District Judge and Ors. : (1988) 3 SCC 137, which is reproduced as under:
This state of the law in reality tends to maintain right and justice and the enforcement of contracts which men enter into with each other for so long as a lessee enjoys everything which his lease purports to grant how does it concern him what the title of the lessor ... is?
(Emphasis supplied)
25. In S. Thangappan v. Padmavathy : (1999) 7 SCC 474, the Apex Court elaborated on the significance of the words 'at the beginning of the tenancy' as contained in Section 116 of the Evidence Act and clarified that the tenant once inducted as a tenant by a landlord later cannot deny his title from the beginning of his tenancy. No matter howsoever defective such title of the landlord may be. The only exception being that subsequent to his induction as tenant if the landlord loses his title under any law or agreement and there is a threat to such tenant of his eviction by subsequently acquired paramount title-holder then any denial of title by such tenant to the landlord who inducted him into the tenancy will not be covered by the principle of estoppel.
26. The Apex Court in S.K. Sarma v. Mahesh Kumar Verma : (2002) 7 SCC 505, was dealing with a case of lessor who was sought to be ejected under the provisions of Indian Railways Act, 1890. The Apex Court reiterated the principles as under:
The rule of estoppel so enacted has three main features: (i) the tenant is estopped from disputing the title of his landlord over the tenancy premises at the beginning of the tenancy; (ii) such estoppel continues to operate so long as the tenancy continues and unless the tenant has surrendered possession to the landlord; and (iii) Section 116 of the Evidence Act is not the whole law of estoppel between the landlord and tenant. The principles emerging from Section 116 can be extended in their application and also suitably adapted to suit the requirement of an individual case. Rule of estoppel which governs an owner of an immovable property and his tenant would also mutatis mutandis govern a tenant and his sub-tenant in their relationship inter se. As held by the Privy Council in Currimbhoy & Company Ltd. v. L.A. Creet : AIR 1933 PC 29 and Bilas Kunwar v. Desraj Ranjit Singh AIR 1915 PC 96 the estoppel continues to operate so long as the tenant has not openly restored possession by surrender to his landlord. It follows that the rule of estoppel ceases to have applicability once the tenant has been evicted. His obligation to restore possession to his landlord is fulfilled either by actually fulfilling the obligation or by proving his landlord's title having been extinguished by his landlord's eviction by a paramount title-holder.
(Emphasis supplied)
27. In E. Parashuraman (dead) by LRs. v. V. Doraiswamy (dead) by L.R. : (2006) 1 SCC 658, a petition for ejectment filed by the landlord under the provisions of Karnataka Rent Control Act was sought to be objected for the reason that notwithstanding the fact that one 'A' was the landlord but, however, since his name stood deleted from the record maintained by the Municipal Corporation, hence 'A' was not entitled to file the petition for ejectment. The Apex Court repelled the tenant's contention by holding that in the absence of Corporation establishing its title in any proceedings in accordance with law and in the absence of a new jural relationship of landlord and tenant between the Corporation and tenant having come into existence keeping in view the provisions of Section 116 of the Evidence Act, the tenant was estopped from challenging the relationship between the landlord and the tenant.
28. In Pal Singh (supra), law of estoppel has been observed to be a recognition and statutory assimilation of the equitable principles underlying the estoppel in relation to tenants.
29. The aforesaid position has been reiterated by the Apex Court even subsequently in Vashu Deo v. Balkishan : (2002) 2 SCC 50, Sheela and Ors. v. Fir Prahlad Rai Prem Prakash : (2002) 3 SCC 375, Bansraj Laltaprasad Mishra v. Stanley Parker Jones : (2006) 3 SCC 91 and Bhogadi Kannababu and Ors. v. Vuggina Pydamma and Ors. : (2006) 5 SCC 532.
30. In the instant case, the plaintiffs alone had executed the licence deed dated 30.6.2002 with the defendant. The third co-sharers, namely, Smt. Bindu was not a party to the licence deed nor had the judgment debtor ever raised the issue of the third co-sharer at any point of time before the trial Court or any other Court, except in a review petition filed before this Court. The licence having been created only by the plaintiffs, the defendant in law would be estopped from raising the question at the time of execution of decree. The decree is totally executable as possession of the suit property can be taken only by the plaintiffs as co-sharers.
31. A distinction was sought to be drawn, based on paras 9 to 12 of the report in Sri Ram Pasricha (supra) on the ground that the ratio of law laid down by the Apex Court in all its decisions is based on the facts wherein the Court was ceased of the proceedings for eviction under the Rent Control legislations, hence in an ordinary suit, based on a contractual relationship of a licensee and licensor the said ratio would not apply. I am afraid the contention needs to be rejected.
32. Evidently the judgments and decrees passed by all the Court, as of date have attained finality. It cannot and has not been disputed that the defendant had contractual relationship only with the plaintiffs. During the subsistence of the contractual relationship only they were considered as licensors. The parties were governed by their contractual relationship at all times.
33. Hence the decree holder at this stage is estopped in law from raising such an issue in the execution proceedings. The Court cannot go behind the decree. In any event it cannot be said that the plaintiffs had deliberately concealed the facts or misled the Court to obtain a decree in their favour. No fraud, as alleged, has been perpetuated by the plaintiffs on the Court. The co-sharer has not come forward assailing the plaintiffs' action or asserting the defendant's rights to the contrary.
34. Thus, the contention raised by the judgment debtor that the decree has become unexecutable is untenable in law. The decree holder is entitled to obtain possession from the judgment debtor and inter se dispute, if any, with regard to possession between the co-sharers is subject matter with which the judgment debtor cannot be concerned in the facts of the present case.
Other Objections:
35. The decretal Court has already held that the suit was maintainable as the relationship between the parties was that of the licensors and the licensee and consequently the provisions of H.P. Urban Rent Control Act, 1987 were inapplicable in the facts of the present case.
36. The question of valuation and pecuniary jurisdiction cannot be raised at this stage. The Court cannot go behind the decree. Similarly, the alleged amount received by the wife of one of the decree-holders is a question, which cannot be gone into at this state. In any event, the Courts decreeing the suit have not held the said contention of the judgment debtor to be true and correct. It is not that the Civil Court lacked inherent jurisdiction to try the suit rendering the decree to be a nullity.
37. With regard to fixtures and furniture installed by the defendant, the decree is evidently clear as the defendant has been directed to remove the fittings and furniture before handing over the vacant possession. The executing Court, in the impugned judgment has given the direction to this effect.
38. Importantly, the Court below has recorded the finding that the judgment-debtor has not paid any amount to the decree holders with effect from 1.7.2003 much less an amount of Rs. 40,000/- per month as decreed by the Court. Incidentally this also was the contractual amount agreed to be paid by the defendant. That amount by itself comes to more than Rs. 29 lacs as on 31.8.2009.
39. The Court below has rightly observed that the intention of the judgment debtor is only to linger on the execution proceedings so as to enjoy the suit property without even paying a single penny towards the use and occupation charges. The property is situated in the heart of the town and is on the Mall road of Shimla which charms every tourist visiting the famous hill station. Judicial notice can be taken of the fact that the defendant is running an Ice Cream Parlour of famous international brand known as 'Baskin Robbins'. Incidentally, this is the only retail out-let store in Shimla and must be doing good business.
40. It has also been alleged that in the revenue record the property in question has been shown to have been owned by the State of Himachal Pradesh and decree-holders are shown as occupiers of the property. Hence the decree has become unexecutable. I am afraid the contention needs to be repelled. In almost similar circumstances, the Apex Court in E. Parashuraman (supra) repelled the tenants contention.
41. In any event while passing the judgment and decree dated 23.4.2008 in RSA No. 450 of 2007 this Court noticed, the statement of Shri Padam Singh (PW-2), Tax Clerk, in the office of Secretary Tax, Municipal Corporation, Shimla from which it was evident that the plaintiffs are the recorded owners in the municipal records.
42. For the foregoing reasons, I find no merit in the present petition and the same is dismissed. The Court below is directed to pass necessary and further orders in accordance with law.