R.N. Misra, C.J.
1. This is a tenant's application challenging the affirming appellate order of the Chief Judicial Magistrate, Berhampur, in a proceeding for eviction from the tenanted premises. Challenge is on the ground that the premises in question belonged to 3 co-owners but the application for eviction had been filed by only one of them, being opposite party No. 1. He had soughtfor eviction on the ground of personal necessity and default in payment of rent. The two other co-sharers having two-third share, being opposite parties 2 and 3 respectively, did not support the claim for eviction. On the other hand, they seated that they did not want eviction of the tenant and pleaded that they had been receiving the rent. The Controller passed an order of eviction by holding that there was default and that order of eviction has been sustained in appeal. That is how the tenant has filed this application challenging the order of eviction.
2. It is contended on behalf of the petitioner relying on two decisions, one of the Bombay High Courit in Vagha Jesing v. Manilal Bhogilal Desai, AIR 1935 Bom 262 and the other in the case of Nanalal Girdharlal v. Gulamnabi Jamalbhai Motorwala, AIR 1973 Guj 131 (FB), that in a case of this type where co-owners were not supporting the claim for eviction by one co-sharer, the application for eviction would not be tenable. On the other hand, reliance has been placed by the counsel for opposite party No. 1 on a Bench decision of the Andhra Pradesh High Court in the case of Damodaram Chetti v. Vungarala Rukmaniamma, (1967) 2 Andh WR 200, the ratio whereof has been followed in another case being the case of Md. Abdul Razack v. Saleemunnisa Sahaba, AIR 1972 Andh Pra 375. We are inclined to think that where one co-sharer makes an application for eviction for and on behalf of all, he is bound to implead the non-joining ca-sharers as opposite parties. The law is clear that in the case of a trespasser, a co-sharer is entitled to evict such trespasser from the entire property as eviction would enure to the benefit of all the landlords. That, however, would not be the position when the claim of eviction is against a tenant who has interest in the property. Where the co-sharer landlords oppose eviction, the position would be very much against the maintainability of the application by one co-sharer. Admittedly, until there is a partition and it has been found as a fact that there has been no partition of the premises, each co-owner would be entitled to possess every part of the property. That is a necessary incidence of co-ownership. Therefore, the Controller cannot grant eviction from any definite part of the property by saying that it belonged to title co-owner asking for eviction. The Andhra Pradesh decision poses the difficulty the co-sharer-landlord wouldface where the tenant and one-co-sharer collude. We do not think, that should be the right approach. In fact, to meet such a situation the remedy should be for the co-sharer to sue for partition, get exclusive title to a part of the tenement and then ask for eviction from the certain portion; otherwise, to allow relief of eviction against the wishes of the remaining co-sharers would certainly interfere with their right of enjoyment which would include enjoyment through a tenant. In these premises, it becomes difficult for us to accept the view of the Division Bench of the Andhra Pradesh High Court indicated in the decision referred to above.
3. On the reasoning indicated, it would follow that the application for eviction was not tenable and should have been dismissed. The Controller as also the appellate authority went wrong in holding that the application was maintainable and that an order of eviction should follow.
4. The writ application is allowed and the impugned order of the Controller as upheld in appeal is set aside. There would be no order for costs.
The application for eviction stands dismissed.
5. I agree with my Lord the Chief Justice.