Kanthilal Champalal Kothari v. Larsen and Toubro - Vacant Possession Civil Revision
Summary
Bombay High Court Civil Appellate Jurisdiction issued Civil Revision Application No. 312 of 2010 on March 27, 2026. Larsen and Toubro Limited (Revision Applicant/Defendant No. 1) challenged a lower court decision in a property dispute with multiple Kothari family members and others regarding vacant possession.
What changed
The Bombay High Court adjudicated CRA 312 of 2010, a civil revision application filed by Larsen and Toubro Limited challenging a lower court ruling in a dispute involving vacant possession of property. The respondents include multiple members of the Kothari family and related parties. The case is cited as 2026:BHC-AS:15268.
As this is a completed court judgment, the parties to the litigation must comply with the court's order regarding the property in question. The judgment serves as final adjudication of the dispute before the High Court. No further regulatory action is required from compliance professionals unless they are directly involved as parties.
Source document (simplified)
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| Relied by Party | Accepted by Court |
| Negatively Viewed by Court | No clear sentiment |
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Kantilal Champalal Kothari And Ors vs Larsen And Toubro Limited And Anr on 27 March, 2026
2026:BHC-AS:15268
CRA-312-2010(J) L&T C3.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Digitally signed
by
HUSENBASHA
CIVIL APPELLATE JURISDICTION
HUSENBASHA RAHAMAN
RAHAMAN NADAF
NADAF Date:
2026.03.31
17:17:52
+0530 CIVIL REVISION APPLICATION NO. 312 OF 2010
Larsen and Toubro Limited, a ]
company within the meaning of the ] [Companies Act](https://indiankanoon.org/doc/1353758/) 1956 and having it's ]
registered office at L & T - House, ]
Ballard Estate, Mumbai - 400 001. ] ... Revision Applicant
(Org. Defendant No.1)
Versus
1) Mr. Kantilal Champalal Kothari ]
2) Mr. Premchand Champalal Kothari ]
3) Mr. Ramniklal Champalal Kothari ]
4) Mrs. Sunita M. Mehta ]
since deceased through ]
4A. Manish Premchand Kothari ]
4B. Snehal Subodh Runwal ]
5) Mrs. Khamadevi Moolchand Kothari ]
(Deceased) ]
6) Mr. Sajjanraj Pyarelal Kothari ]
since deceased through ]
6A. Saurabh Sajjanraj Kothari ]
6B. Madhubala Sajjanraj Kothari ]
6C. Shilpa Jiten Patel ]
7) Mrs. Saraswati Pyarelal Kothari ]
8) Mofatraj Pukhraj Munot ]
9) Mr. Subhash Mangilal Kothari ]
10) Mr. Amar P. Munot (deceased) ]
10(a) Smt. Chandra Amar Munot ]
10(b) Mr. Anuj Amar Munot ]
10(c) Mr. Ajay Amar Munot ]
10(d) Mrs. Riddhi Tushar Singhvi ]
10E PLS Technologies Pvt. Ltd., ]
a Company registered under ]
the [Companies Act](https://indiankanoon.org/doc/1353758/) ]
Vile Parle West, Mumbai-400 056 ] ... Respondents
Husen 1
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CRA-312-2010(J) L&T C3.doc
WITH
CIVIL APPLICATION NO. 81 OF 2015
IN
CIVIL REVISION APPLICATION NO. 312 OF 2010
Sajjanraj Pyarelal Kothari ... Applicant
(Org. Respondent No.6)
In the matter between
Larsen and Toubro Limited, Mumbai ... Revision Applicant
V/s.
Kantilal Champalal Kothari & Ors. ... Respondents
WITH
CIVIL APPLICATION NO. 174 OF 2011
IN
CIVIL REVISION APPLICATION NO. 312 OF 2010
Kantilal Champalal Kothari & Ors. ... Applicants
(Org. Respondent Nos.1 to 9)
In the matter between
Larsen and Toubro Limited, Mumbai ... Revision Applicant
V/s.
Kantilal Champalal Kothari & Anr. ... Respondents
WITH
INTERIM APPLICATION NO. 1959 OF 2019
IN
CIVIL REVISION APPLICATION NO. 312 OF 2010
Larsen and Toubro Limited, Mumbai ..Applicant/Rev. Applicant
V/s.
Kantilal Champalal Kothari & Ors. ... Respondents
***
Mr. Janak Dwarkadas, Senior Advocate a/w. Mr. Ankit Lohia, Mr.
Bomi Patel, Ms. Tamanna Tavadia, Mr. Sunil Tilokchandani, Mr.
Sachin Chandarana, Mr. Himalaya Chaudhari, Ms. Divya Barot i/b
Husen 2
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CRA-312-2010(J) L&T C3.doc
Manilal Kher Ambalal & Co. for the Applicant.
Mr. Aspi Chinoy, Senior Advocate a/w. Mr. Anil Anturkar, Senior
Advocate, Mr. Vishal Kanade, Mr. Omprakash Vaishnaw, Mr. Pravin
Dhage, Mr. Pramod Vora i/b. Pramodkumar & Co. for Respondent
Nos. 1 to 4, 6, 8 and 9.
Ms. Neha Deshmukh a/w. Mr. Anand Poojari, Mr. Reet Jain i/b. S. J.
Joshi & Co. for the Respondent No.10E.
Mr. Suneet Tyagi for the Respondent Nos. 15A to 15D (through VC).
***
CORAM : M.M. SATHAYE, J.
RESERVED ON : 5th DECEMBER, 2025
PRONOUNCED ON : 27th MARCH, 2026
(THROUGH VIDEO CONFERENCING)
JUDGMENT : 1. This civil revision application is filed under Section 115 of Civil
Procedure Code, 1908 (' the CPC ', for short) by Defendant No.1
challenging Judgment and Decree dated 15.02.2010 passed by
Appellate Bench of Small Causes Court, Mumbai in Appeal No. 90 of
2007, by which the Judgment and Decree dated 10.01.2007 passed
by the Small Causes Court at Mumbai (Bandra Branch) in T.E. & R.
Suit No.32/35 of 2001 is set aside. The Appellate Bench decreed the
said suit with costs directing the Revision Applicant to deliver vacant
and peaceful possession of the suit premises to Respondent Nos.1 to
Enquiry for mesne profits is ordered.
The Revision Applicant is tenant and Respondent Nos.1 to 10are landlords. Respondent No.10 is original Defendant No.2 -
CRA-312-2010(J) L&T C3.doc
Co-owner. The suit is filed under the provisions of Maharashtra Rent
Control Act, 1999 ('MRC Act', for short). The plot of land
admeasuring 3633 sq. yards equivalent to 3038.75 sq. mtrs. together
with a bungalow consisting of basement, ground floor and 1 st floor,
servants Quarters and toilets situated at 54 (Old No.28) Pali Hill
Road, Bandra (West) Mumbai - 400 050 is the subject matter of the
said suit which is hereinafter referred to as 'suit premises' for short.
The suit premises is part of a larger property bearing C.T.S No. C-
1374 to C-1377 and C-1403 admeasuring about 4016 sq. mtrs (4803
sq. yards) with structure standing thereon.
- Few facts necessary for the disposal of this case, are as under:
3.1 On 27.01.1961, the predecessor in title of the
Respondents-landlords executed lease deed in favour of the Revision
Applicant in respect of suit premises for a period of 12 years from
01.01.1958 to 31.12.1970.3.2. On 31.03.1971, the Respondents-landlords purchased
the larger property by a registered conveyance.3.3 The Respondents-landlords issued notice dated
21.08.1996 through Advocate calling upon the Revision Applicant to
vacate and hand over the possession of the suit premises.3.4 On 30.05.2000 (after coming into force of the MRC Act),
again a notice was issued by the Respondents-landlords through
Advocate to the Revision Applicant to vacant and hand over the suit
premises.
CRA-312-2010(J) L&T C3.doc
3.5 On 02.02.2001, the Respondents-Plaintiffs addressed a
letter to Defendant No.2 Mr. Amar Munot stating that they have
decided to file a suit against Revision Applicant but Defendant No.2 is
not co-operating as much as he should and therefore Respondents-
Plaintiffs have decided that in case Defendant No.2 does not sign the
plaint within 7 days from the receipt of the letter, Defendant No.2
shall be joined as Defendant, however, no relief will be claimed
against him.
3.6 Sometime in March 2001, the Respondents-Plaintiffs
filed the said suit seeking eviction contending inter alia as under.
That the Revision Applicant-tenant was a monthly tenant duly
protected under the provisions of Bombay Rents, Hotel and Lodging
House Rates Control Act, 1947, which is repealed by the new Maharashtra Rent Control Act, 1999, that MRC Act, 1999 came into
force w.e.f. 31.03.2000 and therefore, the Revision Applicant being a
company having paid up share capital more than Rs. 1 crores, the
protection under Rent Act, is not available by virtue of 3(1)(b) of
MRC Act. That the tenancy has been duly terminated vide notice
dated 21.08.1996, receipt of which is not disputed. That therefore,
the relation between the parties is governed by general law i.e. Transfer of Property Act, 1882 and since the tenancy was created for
residential purpose, it is terminable by serving 15 days' notice under Section 106 of the Transfer of Property Act. That the lease has
expired long back and it is also duly terminated. That therefore, the
Respondents-landlord are entitled for possession and mesne profits.
3.7 On 21.04.2001, Defendant No.2-Mr. Amar Munot
CRA-312-2010(J) L&T C3.doc
executed agreement for sale in favour of Revision Applicant, agreeing
to sell 7% undivided share in the larger property.
3.8 On 30.08.2001, Defendant No. 2- Amar Munot, executed
conveyance in favour of Revision Applicant, selling his 7% undivided
share in the larger property.
3.9 On 01.10.2002, The Revision Applicant-Defendant No. 1
filed written statement contending inter alia that it is in occupation of
suit premises since 1947. That by registered conveyance deed dated
30.08.2001, it has purchased 7% undivided share from Defendant
No. 2 in the suit premises and thus, has become co-owner with the
Plaintiffs and stepped into shoes of Defendant No. 2. That therefore,
the question of seeking possession does not survive. That interest of
Plaintiffs and Defendant No. 1 have merged and therefore, arrears of
mesne profits or future mesne profits , does not arise.
3.10 On 09.07.2002 Defendant No. 2-Amar Munot filed
written statement supporting and adopting the written statement
filed by the Revision Applicant, praying that the suit should be
dismissed.
3.11 On 20.07.2002, issues were framed. Issue was framed
regarding the Revision Applicant has become co-owner and
accordingly whether relationship of landlord-tenant subsists.
3.12 Sometime in September, 2006, plaint was amended to
state that Plaintiff No. 6 has been appointed as Executor of the estate
of Pyarelal Kothari and name of Plaintiff No. 7, who expired, was
CRA-312-2010(J) L&T C3.doc
deleted.
3.13 On 13.10.2006, Defendant No. 1 - Revision Applicant
filed additional written statement contending inter alia that the
notices issued by Plaintiffs are not issued by all the heirs of late
Pyarelal and that in pre-emption suit filed by some of the Plaintiffs,
they have admitted that Defendant No. 2 is entitled to 7.5%
undivided share. That Defendant No. 2 has not given his consent for
sending two notices and for filing the present suit. That Defendant
No. 2 has objected to the filing of suit that it is not filed with consent
of all co-owners. That after demise of Plaintiff No. 7 - Saraswati, her
legal heirs have not joined as a party to the suit. That Partition Suit
No. 2467 of 2002 is pending which includes suit premises.
3.14 On 19.10.2006, Defendant No. 2 Amar Munot filed
additional written statement contending inter alia that the said two
notices are not given by all the heirs of Mr. Pyarelal and he has not
given consent for writing and serving two notices and he has not
given consent for filing suit. That he has sold his undivided 7% share
out of 7.5% share to Revision Applicant-Defendant No. 1 and
therefore he still continues to be the co-owner to the extent of 0.5%
share. That he does not want the suit to be filed or continued. He
prayed for dismissal of suit for failure to join necessary parties as also
for want of consent of all co-owners.
3.15 In view of additional written statements, two additional
issues were framed, namely, whether the suit is bad for non-joinder of
necessary parties? and whether the suit is maintainable in view of
CRA-312-2010(J) L&T C3.doc
amended pleadings?
3.16 On 10.01.2007, the learned Judge of the Trial Court
dismissed the said suit.
3.17 In March 2007, the Respondents - Plaintiffs filed the said
appeal before the Appellate Bench.
3.18 On 15.02.2010, the Appellate Bench of the Small Causes
Court allowed the appeal, thereby quashing and setting aside the
decree of dismissal, thereby directing Revision Applicant to deliver
vacant possession of the suit premises. The Appellate Court further
directed an inquiry into mesne profits from 30.05.2000 till delivery of
possession for payment of 92.5% of mesne profits to the
Respondents-Plaintiffs.
3.19 In these circumstances, the present Civil Revision
application is filed. During pendency of the revision application,
various parties have died and their legal heirs are brought on the
record.
3.20 It is submitted on behalf of the Revision-Applicant that
during pendency of the present Revision Application, inquiry into
mesne profits was considered by this Court and the Revision
Applicant was directed to pay Rs. 20 lakhs per month as interim rent,
and thereafter, the Respondents-Plaintiffs were permitted to
withdraw an amount of Rs. 8,37,16,865/- and the monthly interim
rent was directed to be disbursed amongst co-owners directly.
CRA-312-2010(J) L&T C3.doc
3.21 According to Revision Applicant, on 26.10.2018, the co-
owners had moved a notice of motion for urgent ad-interim relief,
which was not pressed; thereafter, Mr. Ramniklal Kothari transferred
his 22.5% undivided share in the larger property in favour of the
Revision Applicant. Therefore, as on today, the Revision Applicant is
co-owner of the suit property to the extent of 29.5%.
SUBMISSIONS
- Learned Senior Advocate Mr. Dwarkadas appearing for the Revision Applicant submitted as under.
4.1 That both the Trial Court and Appellate Court has held
that the Defendant No. 2 has objected to issuance of suit notices and
filing of the suit and therefore, there is concurrent finding about
Defendant No. 2 objecting to the filing and continuation of suit and
the same is binding and it is not open for the Respondents-Plaintiffs
to question the finding of fact before Revisional Court.
4.2 He submitted that the question of law involved in the
present revision application is whether a co-owner can institute and
maintain a suit for eviction of tenant if the other co-owner objects.
4.3 He relied on following judgments of the Hon'ble Supreme
Court and High Courts to give background of the law with regard to
the question of maintainability of an eviction suit where a co-owner is
objecting.
(i) Sri Ram Pasricha Vs. Jagannath & Ors. (1976) 4 SCC 184.
(ii) Kanta Goel Vs. B.P. Pathak & Ors. (1977) 2 SCC 814.
CRA-312-2010(J) L&T C3.doc
(iii) Pal Singh Vs. Sunder Singh (Dead) LRS & Ors. (1989) 1
SCC 444.
(iv) Dhannalal Vs. Kalawatibai & Ors. (2002) 6 SCC 16.
(v) India Umbrella Manufacturing Co. & Ors. Vs. Bhagabandei
Agarwalla (Dead) by LRS Savitri Agarwalla (Smt) & Ors. (2004) 3 SCC 178.
(vi) Mohinder Prasad Jain Vs. Manohar Lal Jain (2006) 2 SCC
724.
(vii) Mangal Builders & Enterprises Limited & Anr. Vs. Williamson
Magor & Company Ltd. & Anr. 2017 SCC OnLine SC 2133.
(viii) Jainuddin Abdul Rehman Shaikh Vs. Sitaram Damodar
Varvadkar and Ors. 1980 SCC OnLine Bom 129.
(ix) V. Prabha & Co. Pvt. Ltd. & Anr. Vs. Kuljit Singh Chadha & Anr.
2006 SCC OnLine Bom 858.
(x) H. Vasanji & Company Vs. Chandrakumari Harnamsingh
Chowhan (Civil Revision Application No. 76 of 2016
decided on 13.10.2016 Bombay High Court).
(xi) Kalawati Ashok Kumar Parmar Vs. Sharad Dattatraya Tapray 2020 (1) Mh.L.J. 518.
(xii) Sharfuddin & Ors. Vs. Bibi Khatija & Anr. 1987 SCC OnLine Pat
136.
(xiii) Hameeda Begam Vs. Champa Bai Jain & Ors. 2004(1) M.P.L.J.
50.
4.4 Relying on Mangal Builders (Supra), it is submitted that
in the said case, a co-owner had objected to maintainability of suit
and the Trial Court had held that objection about maintainability
should be decided in the course of trial. However, in appeal, the High
Court had taken a different view holding the suit to be not
maintainable and ultimately, that view is confirmed by the Supreme
Court. He submitted therefore that in the present case, since the
Defendant No. 2 has objected to issuance of notices and filing of suit,
the suit ought to have been dismissed and as such, the impugned
order needs to be set aside.
CRA-312-2010(J) L&T C3.doc
- On the other hand, Mr. Aspi Chinoy appearing for the Respondents-landlords submitted as under.
5.1 That the Defendant No. 2 Amar Munot was joined as
Defendant No. 2 because he was not co-operating as much as he
should in the matter of signing the plaint and not because he was
objecting to filing of the suit.
5.2 He submitted that Defendant No. 2 has sold his 7%
interest in the suit property during pendency of the suit but even
after selling the 7% interest, Defendant No. 2 in his first written
statement did not allege or contend that he had objected to filing of
the suit. He submitted that therefore in the original issues that were
framed, there was no issue framed as to whether Defendant No. 2
had objected to filing of suit and whether the suit was accordingly
not maintainable.
5.3 He submitted that in additional written statement,
Defendant No. 2 only stated that all heirs of Pyarelal have not given
their consent and Defendant No. 2 has not given his consent for filing
the suit and does not want the suit to be continued. He submitted
that this contention was taken for the first time in additional written
statement and even the additional written statement does not allege
that Defendant No. 2 objected to filing the suit in 2001.
5.4 He submitted that it is settled position of law that
consent of other co-owner is assumed as taken unless it is shown that
co-owners were not agreeable to eject the tenant and suit was filed in
spite of such disagreement. He relied on India Umbrella (Supra) in
CRA-312-2010(J) L&T C3.doc
support of this contention. He submitted that non-cooperation by
Defendant No. 2, does not mean that Defendant No. 2 was objecting
to filing of the suit. In this respect, relying on V. Prabha (Supra), he
submitted that refusal to sign plaint could be for various reasons.
5.5 He submitted that the Judgment of Mangal Builders (Supra), deals with a case where one of the co-owners had objected
to filing of eviction suit and such objection was not based on any
transfer of the objector's interest which is nothing but an objection
for a collateral purpose. He submitted that in paragraph No.6 of
Mangal Builders (Supra), the Supreme Court itself has clarified that
the objection of co-owner in India Umbrella (Supra) was in the
course of trial of suit and in a situation where suit property had
changed hands. Therefore, the situation in Mangal Builders (Supra)
was completely different.
5.6 He submitted that in the facts of the present case the
stand taken by Defendant No. 2 was clearly in the light of sale of his
7% interest in the property which has taken place during pendency of
the suit and failure to consent or sign on the plaint was clearly not
bona fide and it was for a collateral purpose. He submitted that
failure of co-owner to consent or sign the plaint for a collateral
purpose cannot affect the maintainability of suit by other co-owners.
5.7 He submitted that the Respondents-Plaintiffs are not
asking for re-appreciation of evidence so far as the factum of
objection by Defendant No. 2 is concerned, if at all it can be held that
Defendant No. 2 has objected. However, it is settled position of law
CRA-312-2010(J) L&T C3.doc
that when the decree is completely in favour of a party (Respondents-
Plaintiffs), they need not file cross objections but can still maintain an
argument assailing adverse findings/issues recorded against them. He
relied on following judgments in support of this contention.
(i) Rajendra Muralidhar Kadam & Ors. Vs. Prakash Vitthal Rao
(Civil Revision Application No. 118 of 2019 decided on
18.06.2019 Bombay High Court).
(ii) Govind Bhayaram Bamniya & Ors. Vs. Eknath alias
Joseph Dominic Koli & Ors. 2018 SCC OnLine Bom 9001.
(iii) M/s. Musaji Mohamadali Master & Anr. Vs. Mr. Gulamali
Dadabhai Amreliwala 2005(2) All MR 320.
REASONS AND CONCLUSION
I have considered the rival submissions carefully and perusedthe record.
The question to be decided in the present case is whether a co-owner can institute and maintain a suit for eviction of a tenant if the
other co-owner objects during pendency of the suit and such
objection is apparently due to sell of share in suit premises in favour
of tenant. This will have to be decided in the facts and circumstances
emerging in the present matter.Various judgments have been referred to by the learnedcounsel for the parties.
The law regarding whether Respondent can assail an adversefinding on issue without cross objection, is beyond doubt in the light
of Judgments of Rajendra Muralidhar Kadam (Supra), Govind
Bhayaram Bamniya (Supra) & M/s. [Musaji Mohamadali MasterCRA-312-2010(J) L&T C3.doc](https://indiankanoon.org/doc/88358/) (Supra). The Respondent can certainly, without filing cross objection,assail the adverse finding on an issue or otherwise adverse finding
against the Respondent while supporting the decree which is entirely
in favour of the Respondent. In the present case, the decree is in
favour of the Respondents and therefore the Respondents can assail
the adverse finding.Let us now consider, in short, how the the Appellate Court hasconsidered the material on record. The Appellate Court, on
appreciation of evidence has held as under.
10.1 That Plaintiffs' notice validly terminated the tenancy of
the Revision Applicant.
10.2 That possession of Revision Applicant is wrongful.
10.3 That suit is not bad for non-joinder of legal
representative of one of the co-owners.
10.4 That suit is maintainable and Revision Applicant cannot
defeat the claim for possession and mesne profits on the strength of
conveyance from one of the owners and objection of Defendant No.2.
10.5 That Respondent-Plaintiffs are entitled to decree of possession
and mesne profits.
10.6 That Defendant No. 2 is still having 0.5% undivided
share in the larger property.
10.7 That Defendant No. 2 had received a letter sent by the
CRA-312-2010(J) L&T C3.doc
Plaintiffs prior to filing a suit and since Defendant No. 2 did not join
the Plaintiffs in filing suit, he has been impleaded as Defendant
No. 2.
10.8. That Defendant No. 2 by filing written statement had
adopted the written statement of Revision Applicant and then
contended that the Plaintiffs are not entitled to any relief and had
objected to the suit and finally prayed for dismissal of suit.
10.9 That the result of the pre-emption claim amongst owners
is that the transfer of 7% share of Defendant No. 2 in favour of
Revision Applicant is subject to the decision in the pre-emption suit,
which is presently pending in City Civil Court.
10.10 That question is whether Defendant No. 2, who is left
with only 0.5% share in the suit property can legally raise objection
to the filing and continuation of the suit and can defeat the claim
made by Respondents-Plaintiffs.
10.11 The Appellate Court has considered the judgments of Jainuddin Vs. Sitaram (supra), Ram Pasricha Vs. Jagannath (supra),
Kanta Goel Vs. B. P. Patnak (supra), Pal Singh Vs. Sunder Singh
(supra), Mohinder Prasad Jain Vs. Manohar Lal Jain (supra) and
Hameeda Begam Vs. Champabai Jain (supra). After considering the
above said judgments, the Appellate Court has held as under :
"51. It appears that a distinction is made between case where
there is no objection by a co-owner to another co-owner's eviction
suit and a case where an objection is raised by a co-owner for filingCRA-312-2010(J) L&T C3.doc
eviction suit. But it is to be pointed out that in none of the cases the
Apex Court laid down that if an objection is raised by one co-owner
to the eviction proceeding of another co-owner the suit must fail
even if such objection is not bona fide. After discussing various
decisions of Apex Court in Mohinder Prasad Jain 's case (supra)
what the Apex Court held that such objection is a relevant fact and
nothing more."
[Emphasis supplied]
10.12 Therefore, it is clear that, the Appellate Court has
considered whether the objection raised by Defendant No. 2 to the
present eviction suit is bona fide and can be sustained so as to defeat
the claim of Respondents-Plaintiffs seeking eviction. After going
through various judgments discussed above, in my view, the
Appellate Court was correct is considering this aspect.
10.13 Considering the first and second written statement and
tenor of the objection raised by Defendant No. 2, the Appellate Court
in paragraph No. 52, has concluded that the objection raised by
Defendant No. 2 is 'just to benefit the Revision Applicant-Defendant
No. 1 who has paid him valuable consideration and therefore
Defendant No. 2 is obliging Revision Applicant-Defendant No. 1'. The
Appellate Court has held that the objection raised by Defendant No. 2
is not beneficial to him and therefore, such objection is not legal but
technical with ulterior motive of defeating the claim of Plaintiffs. The
Appellate Court has held that therefore, the objection raised by
Defendant No. 2 is not bona fide. The Appellate Court has further
held that for sustaining such objection, at least, the claim made by
CRA-312-2010(J) L&T C3.doc
Plaintiffs must affect his right. For these reasons the Appellate Court
has held that the objection raised by Defendant No. 2 will not be
sustainable in law. The Appellate Court has thereafter in paragraph
No. 55 held that so far as the absence of consent by 'some of the co-
owners (other co-owners)' is concerned there is nothing to show that
they have raised objection and as such, except Defendant No. 2, there
is no objection of other co-owners, who has joined the suit as
Plaintiffs.
- From the record, following factual aspects are emerging.
11.1 It is not disputed that by registered conveyance deed
dated 30.08.2001, during pendency of the suit, the Defendant No. 2
has sold his undivided 7% share in the suit property in favour of
Revision Applicant-tenant for valuable consideration. Even the
agreement to sell dated 12.04.2001 is during pendency of the suit.
11.2 After selling 7% share to Revision Applicant-tenant,
Defendant No. 2 filed his first written statement.
11.3 Initially, no issue was framed whether Defendant No. 2
had objected to filing of the suit or whether the suit was
maintainable.
11.4 In additional written statement, the Defendant No. 2,
apart from stating that all heirs of Pyarelal have not given consent for
filing suit, contended that Defendant No. 2 has not given consent for
filing suit and Defendant No. 2 does not want the suit to be filed or
continued.
CRA-312-2010(J) L&T C3.doc
Therefore in the facts of this case, it is clear that Defendant No.2 had not objected while filing of the suit and the objection is raised
for the first time in additional written statement filed during
pendency of the suit. This objection raised during pendency of the
suit is admittedly after sale of 7% share in the suit property and
therefore the objection is a 'tainted objection' because share was sold
by Defendant No. 2 in favour of Revision Applicant-tenant.In the light of above peculiar facts, the closest facts exist inonly two of the above list of case-law relied upon by the Revision
Applicant. They are India Umbrella (supra) and Mangal Builders (supra). It is not therefore necessary to labour on other caselaw. Admittedly, the learned judge of the Appellate Court did not have
advantage of considering Mangal Builders (supra) as the same is
rendered on 06.04.2017 and impugned Judgment is delivered on
15.02.2010, when India Umbrella (supra) was already rendered on
05.01.2004. Be that as it may.In India Umbrella (Supra), the Hon'ble Supreme Court was
considering whether one co-owner may withdraw consent midway to
the prejudice of other co-owners and what is the nature of interest of
co-owner. In that case, during pendency of appeal, one co-owner
transferred her share in favour of one of the tenants. Paragraph Nos.
6 and 8 of the said judgment are most relevant for the purpose of
deciding the present controversy. They read as under :
"6. Having heard the learned counsel for the parties we are
satisfied that the appeals are liable to be dismissed. It is well settled
that one of the co-owners can file a suit for eviction of a tenant inCRA-312-2010(J) L&T C3.doc
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 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.Xxx
- The decree, insofar as the other tenant and sub-tenants i.e. the appellants in CA No. 5358 of 1996 are concerned, has to be sustained. The partners of the other tenant firm i.e. M/s India Umbrella Manufacturing Company (appellant in CA No. 5357 of 1996) have purchased the property pendente lite and therefore they cannot be allowed to take a stand contrary to the one taken by their predecessor-in-interest and to the prejudice of the other plaintiff whose rights they have not purchased. Their filing an application that they were not interested in securing eviction of the other tenant is in the facts and circumstances of the case immaterial and irrelevant." CRA-312-2010(J) L&T C3.doc
(emphasis supplied)
The above facts are very similar to the case in hand, becausehere, in the present civil revision application, the Defendant No. 2
(co-owner landlord) has transferred his undivided share in favour of
Revision-Applicant (tenant) pendente lite.In Mangal Builders (Supra), factual matrix is captured in
paragraph 2 which reads as under :
"2. The petitioners are two out of three co-owners who had
instituted a suit for eviction of the respondent No. 1-tenant.
The third co-owner (Respondent No. 2 herein), who is
defendant No. 2 in the suit, in his written statement,
objected to the eviction and explicitly stated that suit is
without its consent. The trial Court while considering the
application under Order VII Rule 11 of the Code of Civil
Procedure filed by the defendant No. 2 thought it proper to
hold that the objection raised with regard to maintainability
should be decided in the course of the trial of the suit"
(emphasis supplied)
- The Hon'ble Supreme Court in Mangal Builders (Supra) has considered India Umbrella (Supra) about which it is observed as under :
"6. The closest decision on the point is in the case of India Umbrella
Manufacturing v. Bhagabandei Agarwalla (Dead) by LRs. Savitri
Agarwalla(Smt), which, however, does not answer the question fully
as the objection of the co-owner in India Umbrella (supra) was inCRA-312-2010(J) L&T C3.doc
the course of the trial of the suit and in a situation where the suit
property had changed hands."
[Emphasis supplied]
Therefore it is clear that the Hon'ble Supreme Court hastreated the peculiar facts of India Umbrella (supra) as different.
'Objection during course of Trial due to suit property changing hands'
is the differentiating factor. In Mangal Builders (supra), there is
nothing to indicate that the objection of the co-owner was owing to
sell / change of hands of suit property, either earlier or pendente lite.
The Hon'ble Supreme Court was not considering the objection of co-
owner which is 'tainted with the collateral purpose' because share in
the property was sold.In that view of the matter, in my opinion, this differentiating
factor brings the present case closest to India Umbrella (supra) as a
guideline to follow.In that view of the matter, the consideration by the AppellateCourt that the objection raised by Defendant No. 2 is not bona fide
and the same is for collateral purpose, cannot be faulted. Failure by a
co-owner to consent or sign the plaint or objection raised by co-
owner during pendency of the suit, for such collateral purpose,
cannot affect the maintainability of the suit filed by other co-owners.Therefore, in the peculiar facts and circumstances of this case,in my view, the objection raised by Defendant No. 2 during pendency
of the suit is tainted with collateral purpose of sale of 7% share in
favour of the Revision Applicant-tenant and therefore it cannot
adversely affect maintainability of the suit. The suit as filed byCRA-312-2010(J) L&T C3.doc
Respondents-Plaintiffs is maintainable and decree passed by the
Appellate Court of eviction cannot be faulted.
It is settled position of law that this Court in exercise ofrevisional jurisdiction under section 115 of CPC has very limited
jurisdiction. This Court can not re-appreciate the evidence to arrive at
a contrary conclusion. In paragraph 10 of the Judgment of the
Hon'ble Supreme Court in Pandurang Dhondi Chougule Vs. Maruti
Hari Jadhav 1965 SCC OnLine SC 83 and paragraph 43 of the
Judgment of the Hon'ble Supreme Court in HPCL Vs. Dilbahar Singh
(2014) 9 SCC 78, the scope of revisional jurisdiction of High Court is
well narrated. Following the same, unless the findings of the
Appellate Court are found to be based on perverse appreciation and
misreading of pleadings and evidence, so much so that, if allowed to
stand, would amount to miscarriage of justice, this Court can not
interfere.The view taken by the Appellate Court is the most probableview. No perversity or misreading of pleadings / evidence is found.
Therefore no interference is called for.The Revision Application is accordingly dismissed. Theimpugned Judgment and Decree of eviction dated 15.02.2010 is
confirmed. Since pending applications were not separately pressed, in
view of dismissal of the revision application, all pending applications
are also disposed of. No order as to costs.At this stage, learned counsel for the Revision-Applicant seekscontinuation of the interim stay to the eviction decree for a period of
CRA-312-2010(J) L&T C3.doc
12 weeks. Learned counsel for the Respondents-landlords opposes the
request. Considering the facts and circumstances of the case and
further considering that Revision Applicant was protected during
pendency of the Revision Application, decree of eviction is stayed for
a period of 6 weeks from today, subject to continuation of
undertaking dated 11.02.2011 given by the Revision-Applicant and
further subject to the Revision-Applicant paying interim
compensation as per the order of the Hon'ble Supreme Court dated
08.12.2024 and further subject to Revision-Applicant not creating
third party interest in the suit premises.
- All concerned to act on duly authenticated or digitally signed copy of this order.
(M.M. SATHAYE, J.)
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