KALLIL MOOSSA Vs. MANNAMKANDIYIL LAKSHMANAN

JUDGEMENT

(1.) Can the jurisprudential concept of coownership that in every infinitesimal portion of subject matter each of the coowners has a right of possession is sufficient to hold that one of the coowners has in his possession a building within the meaning of S.11(4)(iii) of Act 2 of 1965

(2.) Landlord claimed eviction under S.11(4)(iii) contending that tenant Moosa is a coowner along with one Pokker Haji of a nearby shop room as a coowner and consequently landlord is entitled to the benefit of S.11(4)(iii) of the Act. Tenant Moosa is in possession of the shop room belonging to the landlord situated in Kakkattil bazaar wherein he is conducting a grocery shop. Landlord produced Ext. A3 assignment deed dated 10.8.1989 by which tenant Moosa along with Pokker Haji and one Avulla purchased another building. While Ext. A3 was executed Moosa and Pokker Haji were doing business in the northern room in that building while Avulla was doing business in the southern room. Preceding Ext. A3 landlord in respect of that building had obtained a decree for eviction of Moosa and Pokker Haji in O.S. No. 63 of 1983 and A.S. No. 223 of 1984 which led to the execution of Ext. A3. Ext. A3 states that total consideration of Rs. 15,000/- was paid by Pokker Haji and Moosa contributed 7,500/- and the remaining amount of Rs. 7,500/- was contributed by Avulla. Ext. A3 states that Moosa and Pokker Haji together has half right and Avulla has other half right over the rooms covered by Ext. A3. Contention was raised that since Moosa is a coowner along with Pokker Haji in respect of northern room, landlord is entitled to claim eviction of Moosa on the ground that he is a coowner.

(3.) The question that arises for consideration is merely because Moosa is a coowner can it be said that he is in possession of the building within the meaning of S.11(4)(iii) of the Act Each coowner is in theory has interest in every infinitesimal portion of the subject matter and each has the right to be in possession of other part and parcel of the property, jointly with others. Each joint owner has the right to possession of all the property held in common equal of the right of each of his companions in interest and superior to that of all persons. All coowners have equal right and coordinate interest in the property, but their shares may be either fixed or indeterminate. So for the test of coownership is coordinate interest. However, there is no joint possession in respect of the entire property there is no coownership. Every coowner is therefore entitled to enjoy common property jointly with other coowners. Both Moosa and Pokker Haji are entitled to possess and enjoy the property jointly, both of them are having equal right to protection and ownership. Unless it is shown that one of the coowners is put in possession exclusively by any arrangement between the coowners, it cannot be said that one of the coowners is in exclusive possession within the meaning of S.11(4)(iii) of the Act.