Delhi High Court
Avery India Ltd. vs Nirmal Kumar Jain And Anr on 10 August, 2018
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 10th August, 2018
+ RSA 148/2017, CM No.20020/2017 (for stay), CM No.20021/2017
and CM No.20022/2017 (both for exemption) and CM
No.20023/2017 (for extension of time to file deficient court fee).
AVERY INDIA LTD. ..... Appellant
Through: Mr. B. Mohan, Adv with Mr. P.R.
Bahl, Mr. Raghav Gupta and Mr.
Siddharth Aggarwal, Advs.
Versus
NIRMAL KUMAR JAIN AND ANR ..... Respondents
Through: Mr. V.K. Srivastava, Mr. B. B.
Jain and Mr. Abhay Jain, Advs.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. This Second Appeal under Section 100 of the Code of Civil
Procedure, 1908 (CPC) impugns the judgment and decree [dated 16th
February, 2017 in RCA 21/14/13 (New No.60786/16) of the Court of
Additional District Judge-03 (West)] of dismissal of First Appeal
under Section 96 of the CPC preferred by the appellant against the
judgment and decree [dated 28th February, 2013 in Suit No.537/2002
of the Court of Additional Civil Judge (West)] allowing the suit filed
by the two respondents/plaintiffs for ejectment of the
appellant/defendant from the ground floor of house No. XI/4234
situated at 1-Ansari Road, Daryaganj, New Delhi-110002 and for
recovery of mesne profits.
2. The Second Appeal came up first before this Court on 24 th May,
2017 when the senior counsel then appearing for the
appellant/defendant stated that the appellant/defendant had already
RSA No.148/2017 Page 1 of 35
vacated the premises, for ejectment of the appellant wherefrom decree
had been passed by the Suit Court and the First Appellate Court, and
the claim in the Second Appeal was confined only to the decree
insofar as for recovery of mesne profits.
3. Notice of the appeal was issued, though without indicating the
substantial question of law if any arising but recording the contention
of the senior counsel then appearing for the appellant that the First
Appellate Court, in violation of Section 105(1) of the CPC, held itself
not entitled to interfere with the order of the Suit Court closing the
right of the appellant/defendant of cross examination of PW2 and
PW3. While issuing notice, subject to the appellant depositing 50% of
the decretal amount in this Court less the amount already paid during
the pendency of the suit and the appeal, the recovery of the balance
decretal amount from the appellant was stayed and the Trial Court
record requisitioned.
4. The counsel for the appellant/defendant and the counsel for the
respondents/plaintiffs have been heard.
5. During the hearing, on enquiry by the counsel for the
appellant/defendant whether the appeal was being finally heard, the
counsel was informed that if after hearing the counsels, the appeal was
found to entail any substantial question of law, then the counsels will
be informed of the same and it will be enquired from them whether
they needed adjournment for addressing on the said substantial
question of law; however if on hearing, no substantial question of law
RSA No.148/2017 Page 2 of 35
was found to arise, the question of entertaining the appeal would not
arise.
6. The Suit Court record and the First Appellate Court record
requisitioned in this court have been perused.
7. The respondents/plaintiffs, on 1st October, 1993 instituted the
suit, from which this appeal arises, pleading (as per amended plaint
verified on 14th December, 1998) :
i. that the appellant/defendant was a month to month
tenant under the respondents/plaintiffs on the ground
Floor of property No. XI/4234 situated at 1-Ansari
Road, Daryaganj, New Delhi at a rent of Rs.5500/-
per month;
ii. that the tenancy of the appellant/defendant was
terminated vide notice dated 22nd June, 1993;
iii. that the appellant/defendant was liable to pay
damages/mesne profits at the rate of Rs.71830.20p
per month w.e.f. 1st August, 1993 to 30th September,
1993;
iv. that since the filing of the suit, the prevalent letting
value of the premises had increased multifold and
was at the rate of Rs.67.50p per sq. ft. per month and
the appellant/defendant was liable to pay future
mesne profits/damages from use and occupation
RSA No.148/2017 Page 3 of 35
w.e.f. 1st October, 1993 at the rate of Rs.1,61,617.95p
per month.
8. The appellant/defendant contested the suit, by filing a written
statement, pleading:
a. that the appellant/defendant was inducted by one Nannu
Mal Jain as a tenant in the premises, comprising of one
hall, bathroom, latrine, with two entrances, one from the
main gate of the hall and the other from the service road
on the rear of property 1-Ansari Road, Daryaganj New
Delhi;
b. subsequently, in November 1970, Nannu Mal Jain
informed the appellant/defendant of partition of property
No.4234, Ward No.XI at 1-Ansari Road, Daryaganj,
New Delhi; the appellant/defendant was informed that
the premises aforesaid in its tenancy were partitioned
equally between Nannu Mal Jain and his wife Chander
Kala Jain and that half of the tenancy premises in the
front i.e. abutting Ansari Road, was owned by Nannu
Mal Jain and the other half portion at the rear, having
access from the service road, was owned by Chander
Kala Jain;
c. however, since the entire premises were in the tenancy
of the appellant/defendant, no partition wall between the
two portions was raised;
RSA No.148/2017 Page 4 of 35
d. that Chander Kala Jain, on coming to own rear half of
the premises in the tenancy of the appellant/defendant,
accepted the appellant/defendant as a tenant under her in
the said portion belonging to her;
e. Nannu Mal Jain and Chander Kala Jain also requested
the appellant/defendant to pay them rent separately in
equal proportion of their separate premises; ever since
then, the appellant/defendant paid rent to the two
landlords separately for their respective premises;
f. in or about January, 1990, on the demise of Nannu Mal
Jain, it was represented to the appellant/defendant that
the rent of the premises owned by Nannu Mal Jain
should be paid by the appellant/defendant in the name of
Savita Jain, being the daughter-in-law of Nannu Mal
Jain;
g. that the rent of the premises in the tenancy of the
appellant/defendant, earlier under Chander Kala Jain
and after the demise of Chander Kala Jain, now under
her son respondent no.1/plaintiff Nirmal Kumar Jain as
well as of the premises in the tenancy of the
appellant/defendant under respondent no.2/plaintiff
Savita Jain, is less than Rs.3,500/- per month and the
provisions of Delhi Rent Control Act, 1958 are
applicable to such tenancies and suit for ejectment from
such premises before the Civil Court was misconceived;
RSA No.148/2017 Page 5 of 35
h. that the tenancy of the appellant/defendant was of two
premises and not of one premises;
i. that notice dated 22nd June, 1993 of determination of
tenancy was not in compliance with Section 106 of the
Transfer of Property Act, 1881 and two separate
tenancies could not be terminated by a single notice;
and,
j. denying the claim of the respondents/plaintiffs for
mesne profits.
9. Though a replication was also filed by the
respondents/plaintiffs to the written statement aforesaid of the
appellant/defendant but the need to refer thereto is not felt.
10. On the pleadings aforesaid of the parties, the following issues
were framed in the suit on 3rd May, 1994:-
"(1) Whether the tenancy of the Defendants stands
terminated by legal and valid notice as per
section 106 of TP Act as alleged, if so its effect?
OPP
(2) Whether the plaintiff is entitled to recover
possession of suit remises as alleged? OPP
(3) Whether the plaintiff is entitled to recover any
damages, if so at what rate for what period and to
what amount? OPP
(4) Whether the plaintiff is entitled to any injunction?
OPP
(5) Whether the suit is bad for mis-joinder of parties
and causes of action as alleged? OPD
RSA No.148/2017 Page 6 of 35
(6) Whether the plaintiffs own separate and distinct
premises as alleged in para 2 of the preliminary
objections of written statement, if so its effect?
OPD
(7) Relief."
11. Notwithstanding the issues having been framed in the suit as
far back as on 3rd May, 1994, the suit remained pending till 28th
February, 2013, when it was allowed in favour of the
respondents/plaintiffs and a decree for ejectment and recovery of
mesne profits/damages for use and occupation as claimed passed
against the appellant/defendant, finding/observing/reasoning (i) that
there was no specific denial in the written statement of service of the
notice dated 22nd June, 1993 of determination of tenancy; (ii) even
otherwise, the respondents/plaintiffs had proved service of notice
dated 22nd June, 1993 of determination of tenancy; (iii) the
respondent no.1/plaintiff, in his evidence had proved that the rate of
rent w.e.f. 1st August, 1998 was Rs.5,500/- per month and that the
tenancy always remained one but the rent was being received by way
of two separate cheques but one receipt was being issued with
respect to the rent; (iv) the respondent no.1/plaintiff had further
deposed that the appellant/defendant used to send rent along with
duly prepared and attached receipts; (v) no cross-examination was
done by the respondents/plaintiffs on the aspect of ownership of the
respondents/plaintiffs except for putting questions on the Will of
Chander Kala Jain in favour of Nirmal Kumar Jain and that too only
to the effect that no probate thereof had been obtained; however, in
Delhi, it was not essential, to claim under the Will, to have the Will
RSA No.148/2017 Page 7 of 35
probated; (vi) a reading of the notice dated 22nd June, 1993 showed
determination of tenancy and there was no cross-examination in this
respect also; (vii) that the possession of the appellant/defendant, after
determination of tenancy, was unauthorised and the
respondents/plaintiffs were entitled to a decree of ejectment of the
appellant/defendant; (viii) the respondents/plaintiffs had examined
two independent witnesses to prove the prevalent letting value and
the testimony of which witnesses also had remained unrebutted; (ix)
PW2 had deposed that Vijaya Bank had taken basement of property
no.2/10, Daryaganj, measuring 1874 sq. yds. on January, 1988 @
Rs.12 per sq. ft. per month w.e.f. 1998 and after five years, rent was
increased by 25% and thereafter it was again increased in 1997; (x)
PW3 had also deposed having taken premises on rent in Daryaganj
area on 30th March, 1998 @ Rs.1,90,825/- per month; (xi) no cross-
examination was done by the appellant/defendant of the said
witnesses; (xii) the appellant/defendant had failed to prove that the
suit was bad for mis-joinder of any party or for mis-joinder of causes
of action; (xiii) the sole witness of the appellant/defendant, though
deposed that the sole tenancy stood split up into two tenancies by
virtue of documents Ex.DW1/1 to Ex.DW1/5 but a reading of the
said documents did not show any such splitting up of tenancy and
showed that only the share of the rent was distributed between
Nannu Mal Jain and Chander Kala Jain; (xiv) there was no partition
of tenancy; (xv) only one rent receipt was being issued with respect
to the rent paid of the premises; (xvi) the sole witness of the
appellant/defendant also admitted that no partition wall as at any
RSA No.148/2017 Page 8 of 35
point of time erected, separating the tenancy premises; (xvii) the
tenancy premises remained one with a single entrance; (xviii) no
separate rent receipts were admittedly issued with respect to the
separate tenancies alleged by the appellant/defendant; (xix) the
appellant/defendant, in none of the correspondence, with Chander
Kala Jain and Savita Jain had taken the stand of separate tenancies;
and, (xx) merely because rent paid by the appellant/defendant was
shared by the two respondents/plaintiffs, did not mean that there was
any partition of tenancy. Hence, the decree of ejectment and
recovery of mesne profits, in favour of the respondents/plaintiffs and
against the appellant/defendant "along with interest @ 6% per annum
and cost of the suit".
12. The First Appeal preferred by the appellant/defendant has been
dismissed, finding/observing/recording (i) that it was the contention
of the appellant/defendant that the Suit Court did not give adequate
opportunity to the appellant/defendant to cross-examine PW2 and
PW3, leading to denial of principles of natural justices and resulting
in grave miscarriage of justice; however, admittedly the orders dated
21st July, 1998 and 27th May, 1999 whereby the right of the
appellant/defendant to cross-examine PW2 and PW3 respectively
was closed by the Suit Court, had not been challenged by the
appellant/defendant and had become final; thus there was no merit in
the said contention; (ii) it was the contention of the
appellant/defendant that in pursuance to the decree dated 28 th
January, 1970 Ex.DW1/6 in Suit No.401/1969 of this Court, half
portion of the tenanted property came to be owned by Nannu Mal
RSA No.148/2017 Page 9 of 35
Jain and the other half portion by Chander Kala Jain, thus making
both of them separate individual owners of the two severed portions
of the property; the said decree not only determined the shares but
also partitioned the tenanted premises by metes and bounds and thus
the tenancy of the appellant/defendant was under two separate
lessors, each of whom was being paid rent @ Rs.2,750/- per month
and to which two tenancies the provisions of Delhi Rent Control Act
were applicable and the Civil Court did not have jurisdiction to order
ejectment from the tenanted premises; (iii) it was however suggested
by the appellant/defendant to the respondent no.1/plaintiff in cross-
examination, that no partition wall separating the portions of the two
tenancies was ever erected and which showed that the tenanted
premises, according to the appellant/defendant also, were not
divided/partitioned by metes and bounds; (iv) the counsel for the
appellant/defendant relied on Sk. Sattar Sk. Mohd. Choudhari Vs.
Gundappa Ambadas Bukate (1996) 6 SCC 373 and Mohar Singh
Vs. Devi Charan AIR 1988 SC 1365; (v) it was the contention of the
counsel for the appellant/defendant that though a single rent receipt
was issued, but signed by owners of both portions of the tenancy
premises; (vi) the counsel for the respondents/plaintiffs relied on
judgment dated 23rd November, 2000 of this Court in RFA
No.318/1999 titled Good Year India Ltd. Vs. Bharat Bhushan Jain
holding that merely because the owners/landlords share the rent as
per respective shares in the property, did not make it a case of
separate tenancies; (vii) in the present case also, inspite of partition
of the property and payment of rent by two separate cheques, single
RSA No.148/2017 Page 10 of 35
rent receipt continued to be given; (viii) in Sk. Sattar Sk. Mohd.
Choudhari supra, it was held that if all the co-owners agree to split
up the demised property by partition by metes and bounds, then they
become separate individual owners of each severed portion and can
deal with that portion as also the tenant thereof as individual
owner/lessor; however in the present case, the respondents/plaintiffs
as co-owners chose to continue to deal with the tenanted property as
one unit by not effecting its partition by metes and bounds and by
continuing to issue a composite rent receipt in respect of rents
received by them; (ix) it was also not in dispute that the rent, receipts
were being prepared by the appellant/defendant itself and were only
furnished to the respondents/plaintiffs along with cheques for rent,
for signatures of the respondents/plaintiffs; (x) there was not an iota
of evidence to establish bifurcation of tenancy; (xi) thus Sk. Sattar
Sk. Mohd. Choudhari supra was not applicable; (xii) on the contrary
Raja Simhadri Appa Rao Vs. Prattipati Ramayya ILR (1906-08) 29
Mad 29, Satyes Chandra Sarkar Vs. Haji Jilfar Rahman (1918) 27
Cal LJ 438 and Keshava Prasad Singh Bahadur Vs. Mathura Kaur
AIR 1922 Pat 608, holding that it is open to the owners to apportion
the rent inter se but on such apportionment the obligation of the
tenant remains single and the lessor will not be allowed to split up
the tenancy by recovering rent of a part only, were applicable to the
facts of the present case; (xiii) the appellant/defendant, in the reply
Ex.PW29 to notice dated 22nd June, 1993 of determination of
tenancy, did not state that there were two separate tenancies at a rent
of Rs.2,750/- per month each and the plea in this regard was an
RSA No.148/2017 Page 11 of 35
afterthought; (xiv) the appellant/defendant had also challenged the
rate at which mesne profits had been awarded; (xv) PW2 and PW3
examined by the respondents/plaintiffs qua the rate of mesne profits
were not cross-examined by the appellant/defendant despite several
opportunities; and, (xvi) the appellant/defendant had not led any
independent evidence of its own about the rate of mesne profits.
Hence the First Appeal was dismissed.
13. As aforesaid, the appellant/defendant, after the judgment of the
First Appellate Court and before filing this appeal, has complied with
the impugned judgment and decree in so far as of ejectment of the
appellant/defendant, by handing over the possession of the premises
to the respondents/plaintiffs. The counsel for the
respondents/plaintiffs admits the same.
14. It is the contention of the counsel for the appellant/defendant
that the impugned judgment and decree, in so far as for recovery of
mesne profits, is contrary to law for the reason of the tenancy of the
appellant/defendant having stood split up pursuant to the judgment
and decree dated 28th January, 1970 of this Court in Suit
No.401/1969 whereunder, besides Nannu Mal Jain who alone had let
out the premises to the appellant/defendant, his wife Chander Kala
Jain was also held entitled to a share in the tenancy premises and a
decree demarcating the portions of the tenancy premises owned by
Nannu Mal Jain and Chander Kala Jain was passed. It is argued that
since on passing of the said decree, instead of one, two separate
tenancies came into existence, each at a rent less than Rs.3,500/- per
RSA No.148/2017 Page 12 of 35
month, the jurisdiction of the Civil Court was barred by Section
14(1) read with Section 50 of the Delhi Rent Control Act, to order
ejectment from such tenancy premises or to order recovery of mesne
profits with respect thereto.
15. The counsel for the respondents/plaintiffs contends that since
the appellant/defendant has vacated the premises prior to the filing of
the appeal, it is now not open to the appellant/defendant to take up
the said plea and the challenge by the appellant/defendant to the
decree for mesne profits can only be as to the rate at which the same
have been awarded.
16. Per contra, the counsel for the appellant/defendant argues that
merely because the appellant/defendant has of its own chosen to
vacate the premises, would not take away the right of the
appellant/defendant to challenge the decree for ejectment also and
the consequent decree for mesne profits, including on the ground of
jurisdiction of the Civil Court being barred.
17. I agree with the counsel for the appellant/defendant. The
present appeal was filed within the period prescribed therefor and
this Court, while issuing notice of this appeal, has not imposed any
kind of restrictions qua the scope of the appeal. Merely because a
person aggrieved by a decree chooses to voluntarily comply with
some part thereof, for whatsoever reason, cannot take away the right
of that person to challenge that part of the decree also, to the extent it
affects the remaining decree which has not been complied with. Rule
33 of Order XLI, while defining powers of appellate court and which
RSA No.148/2017 Page 13 of 35
per Order XLII Rule 1 applies to second appeals also, vests the
appellate court with powers to pass order which ought to have been
made. Supreme Court, in Nirmala Bala Ghose Vs. Balai Chand
Ghose AIR 1965 SC 1874 interpreted the said Rule 33 as entitling
the appellate court to interfere with decree, which by acquiescence or
acceptance has become final. I thus hold that notwithstanding the
factum of the appellant/defendant having vacated the tenancy
premises, the appellant/defendant is be entitled to challenge the
decree, insofar as for mesne profits, to the extent the same is
dependent upon the plea of the appellant/defendant of the jurisdiction
of the Civil Court being barred owing to there being two and not one
tenancy and both of which tenancies were protected under the Delhi
Rent Control Act.
18. The counsel for the appellant/defendant has proposed the
following substantial questions of law on the aspect of splitting up of
single tenancy into two tenancies as a legal consequence of decree
for partition by metes and bounds between the co-lessors:-
"C. Whether the tenancy of the Appellant would
remain indivisible notwithstanding the fact that
there is partition of tenanted accommodation
amongst Respondents/Co-owners by metes and
bounds?
D. Whether the parties can by choice or action alter
and/or avoid the legal effect and consequences
of a partitions of a property by metes and
bounds? If so, whether the learned Courts below
have erred in ignoring such fundamental legal
principles?
RSA No.148/2017 Page 14 of 35
E. Whether splitting up of the tenancy as a
consequence to partition of tenanted
accommodation by metes and bounds amongst
Respondents/Co-owners will not come into effect
without notice of splitting of tenancy to tenant?
19. The counsel for the appellant/defendant states that no evidence
is required to be shown on the aforesaid aspect, as splitting up of the
tenancy, on passing of a final decree for partition between landlords,
is automatic and/or a legal consequence. Reliance in this regard is
placed, as before the First Appellate Court, below on Sk. Sattar Sk.
Mohd. Choudhari supra.
20. I have enquired from the counsel for the appellant/defendant,
the statutory provisions in this regard.
21. The counsel for the appellant/defendant has referred to Section
37 of the Transfer of Property Act which is as under:-
"37. Apportionment of benefit of obligation on
severance
When, in consequence of a transfer, property is divided
and held in several shares, and thereupon the benefit of
any obligation relating to the property as a whole
passes from one to several owners of the property, the
corresponding duty shall, in the absence of a contract,
to the contrary amongst the owners, be performed in
favor of each of such owners in proportion to the value
of his share in the property, provided that the duty can
be severed and that the severance does not substantially
increase the burden of the obligation; but if the duty
cannot be severed, or if the severance would
substantially increase the burden of the obligation the
duty shall be performed for the benefit of such one of the
RSA No.148/2017 Page 15 of 35
several owners as they shall jointly designate for that
purpose:
PROVIDED that no person on whom the burden of the
obligation lies shall be answerable for failure to
discharge it in manner provided by this section, unless
and until he has had reasonable notice of the severance.
Nothing in this section applies to leases for agricultural
purposes unless and until the State Government by
notification in the Official Gazette so directs."
22. I have further enquired from the counsel for the
appellant/defendant, whether not I have also pronounced on the said
aspect and whether not I have held that even on partition between
landlords, no splitting up of tenancy takes place.
23. The counsel for the appellant/defendant has fairly drawn
attention to my judgment in Ashok Kumar Vs. Anil Aggarwal
MANU/DE/1564/2016 holding as under:-
"33. Even otherwise, as per Section 37 and
Section 109 of the Transfer of Property Act, 1882
there is no severance of the tenancy by reason merely
of partition between the co-owners and landlords and
there is no separate demise in respect of divided part
and the landlord to whom a divided part has been
allotted acquires no right by reason merely of the
partition to terminate the tenancy by giving notice to
quit qua that part. Though the counsel for the
respondents handed over photocopies of judgments
viz. Charanjit Lal Mehra Vs. Kamal Saroj Mahajan
MANU/SC/0191/2005: 2005 III AD (SC) 525, Kamal
Saroj Mahajan Vs. Charanjit Lal Mehra
MANU/DE/0824/2004 : 2004 VI AD (Delhi) 537 and
Mercury Travels (India) Ltd. Vs. Mahabir Prasad
MANU/DE/0001/2001 : 89 (2001) DLT 440 (DB) but
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the same are found to be of no assistance on the said
issue.
34. The senior counsel for the appellant though has
drawn attention to the partition deed to contend that
there has been division by metes and bounds but has
not been able to cite any case law to the contrary,
neither at the time of hearing nor thereafter.
35. On the contrary, I find the Division Bench of the
High Court of Kolkata in Dr. Amar Prasad Goopta
Vs. Arun Kumar Shaw MANU/WB/0089/1979 : AIR
1979 Cal 367 and the High Court of Allahabad in
Mahmudul Haq Vs. Seventh Addl. District and
Sessions Judge MANU/UP/0774/1984 to be holding
that there is no splitting up of the pre-existing tenancy
on partition amongst landlords. It is also not the case
of Ashok that the firm which was a tenant had agreed
to partition."
24. The contention of the counsel for the appellant/defendant
however is that Ashok Kumar supra is contrary to Sk. Sattar Sk.
Mohd. Choudhari supra.
25. Sk. Sattar Sk. Mohd. Choudhari supra was not noticed or
dealt with in Ashok Kumar supra. In Sk. Sattar Sk. Mohd.
Choudhari supra, a shop measuring 23'x19' was let out in the year
1964. In the year 1974, one of the brothers of the person who had let
out the shop and who was receiving the rent thereof informed the
tenant that in a partition between the brothers, a portion measuring
23'x12-1/2' of the shop had fallen to the share of the said brother and
the tenant was called upon to pay the rent to the said brother and on
non-payment of rent, petition for eviction from the said portion,
under the provisions Hyderabad Houses (Rent, Eviction and
RSA No.148/2017 Page 17 of 35
Lease) Control Act, 1954, was filed. It was the plea of the tenant,
that his tenancy was indivisible and the petition for eviction from
part of the shop was not maintainable and he had never attorned to
the brother who had filed the petition for eviction and the partition
claimed, was not bona fide. The Rent Controller ordered eviction of
the tenant and the appellate authority dismissed the appeal. However
the High Court reversed the order of eviction, primarily on the
ground that the partition between the brothers would not affect the
lease which would remain indivisible and eviction proceedings at the
instance of only one of the co-landlords was not maintainable.
However the Supreme Court allowed the appeal and restored the
order of eviction, reasoning (i) that Section 36 of the Transfer of
Property Act read with Section 8 of the said Act enacts the rule
relating the apportionment by time; Section 37 refers to
apportionment by estate; (ii) before a tenant can be required to split
up the rent and pay separately to each owner, he has to be informed
of the transfer by a notice, which by itself will be sufficient to
convert the single obligation into several obligations and the tenant
will be liable to pay rent to each co-sharer separately; (iii) it is open
to the owners to apportion the rent inter se but if no such
apportionment is made, the obligation of the tenant remains single
and in that situation the lessor will not be allowed to split up the
tenancy by recovering the rent of a part only; (iv) under Sections 36
& 37 of the Transfer of Property Act, even if the estate is in
possession of a tenant who is under an obligation to pay rent, there
can still be severance of such estate; (v) however the properties
RSA No.148/2017 Page 18 of 35
which are covered by leases, are dealt with separately in Section 109
of the Transfer of Property Act; (vi) though partition is not a transfer
within the meaning of Section 109 of the Transfer of Property Act
but if a suit for partition is filed and partition is brought about
through a decree of Court, it would amount to transfer vide Section
2(d) and Section 5 stands overridden by Section 2(d) of the Transfer
of Property Act; (vii) though tenancy cannot be split up either in
estate or in rent or any other obligation by unilaterally act of one of
the co-owners, but if all the co-owners or the co-lessors agree
amongst themselves and split up by partition the demised property by
metes and bounds and come to have definite, positive and
identifiable share in that property, they become separate individual
owners of each separate severed portion and can deal with that
portion as also the tenant thereof as individual owner/lessor; (viii)
there is no right in the tenant to prevent the joint owners or co-lessors
from partitioning the tenanted accommodation among themselves;
(ix) whether the premises, which is in occupation of a tenant shall be
retained jointly by all the lessors or they would partition it amongst
themselves, is the exclusive right of the lessors to which no objection
can be taken by the tenant.
26. No other judgment has been relied upon by the counsel for the
appellant/defendant and no other argument in this regard has been
urged.
27. My research shows that Ashok Kumar supra was not appealed
against. I further find the Supreme Court, in M. Meeramytheen Vs.
RSA No.148/2017 Page 19 of 35
K. Parameswaran Pillai (2010) 15 SCC 359, to have held that a
subsequent partition between co-landlords cannot divide the original
single tenancy and enable one of the landlords in whose share part of
the tenanted premises had fallen, to seek eviction of the tenant
therefrom. Accordingly, the order of eviction passed by the Courts
below was set aside.
28. In Ashok Kumar supra, reliance was placed on Dr. Amar
Prasad Goopta Vs. Arun Kumar Shaw AIR 1979 Cal 367 (DB) and
on Mahmudul Haq Vs. Seventh Addl. District and Sessions Judge
1984 SCC OnLine All 17, both holding that there is no splitting up of
the pre-existing tenancy on partition amongst landlords. The
reasoning which prevailed for holding so was, that (i) though by
virtue of Section 109 of the Transfer of Property Act, a transferee of
a portion of the premises acquires all the rights of the lessor in
respect of the portion of the premises transferred, but the question is,
whether the transferor/lessor had a right to evict the lessee from a
part of the premises; (ii) there can be no doubt that the lessor cannot
evict the lessee from a part of the property leased; (iii) a suit for a
decree for partial eviction is not maintainable; (iv) as the lessor has
no right to evict the lessee from part of the property, it is absurd to
think that Section 109 of the Transfer of Property Act has conferred
such a right to the transferee of a part of the premises leased; (v)
even if the lessee, pursuant to the transfer has apportioned the rent,
such apportionment does not have the effect of severing the tenancy,
because under Section 37 of the Transfer of Property Act the tenant
is bound to apportion the rent; (vi) the third paragraph of Section 109
RSA No.148/2017 Page 20 of 35
of the Transfer of Property Act also provides for apportionment of
rent by mutual agreement amongst the lessors, transferee and the
lessee, failing which the same may be made by the Court; (vii) the
relationship of landlord and tenant arises out of a contract; (viii) a
contract of tenancy with respect to whole of the premises, cannot in
law, consequent to partition between owners/lessors stand converted
to new contracts of tenancy with respect to each of the sub-divided
premises let out as a whole, in the absence of plea and proof of fresh
contracts of tenancy having been created with respect to each part of
the partitioned property, with the owners thereof; (ix) that neither the
transferee nor a co-sharer, on partition, can be allowed to disturb the
lessee in possession of the property leased out to him; the lessors can
of course get rent of their share apportioned; apportionment of rent is
made for the convenience of the lessors but the law does not further
lay down that on transfer of defined portion of the tenancy, the
original tenancy will get spilt up into as many portions as there might
be co-sharers after the transfer; (x) even in the event of transfer by a
single owner of the leased property to two persons whose shares in
the transferred property have been clearly defined, the lease does not
become split up into two; (xi) the right of the lessee to remain in
possession of the accommodation let out to him, without
interruption, is conferred by clause (c) of Section 105 of the Transfer
of Property Act and the tenancy cannot be split unless the transferor,
transferee and the lessee, all agree to it; and, (xii) the conduct of the
tenant in agreeing to pay rent to different landlords according to their
shares, would not imply any fresh tenancy.
RSA No.148/2017 Page 21 of 35
29. I also find an earlier judgment of the Calcutta High Court in
Adam Ali Vs. Chandu Molla AIR 1928 Cal 876 to have held that the
act of partition among the landlords, without a concurrence of the
tenant, though surely has the effect of dividing the holding so as to
give to each of the owners the right to recover their shares of the rent
which had been fixed on the portions allotted to their share, but that
cannot be said to confer a new right upon the owners/landlords to
bring in ejectment against the tenants who were not liable to be
evicted previous to partition; thus if the tenant was entitled to
continue as a tenant with regard to the entire tenancy holding, by
partition it cannot be said that the tenant was liable to be evicted
from a part of the property.
30. Mudholkar J., speaking for the Bombay High Court (Nagpur
Bench) in Daulatsingh Gulabsingh Vs. State of Bombay 1957 SCC
OnLine Bom 221 also negatived the contention that Section 109 of
the Transfer of Property Act results in severance of the lease where a
part of the leased premises is transferred by the lessor. It was held
that only new right which comes into being upon a transfer of a
portion of the demised premises is a right to the apportionment of
land. The contention that since one of the rights of the transferor was
to terminate the lease and this right passed to the transferee
consequent on the transfer was rejected reasoning that it has to be
borne in mind that while the transferor had a right to terminate the
entire tenancy, he never had a right to terminate only a part thereof;
thus what would pass to the transferee consequent on the transfer,
would be only such right as the landlord unquestionably had and not
RSA No.148/2017 Page 22 of 35
something which the landlord never had; no new right to terminate a
part of a tenancy was held to came into being by virtue of a transfer.
31. On the reasoning given above, of eviction from part of the
tenanted premises leased out as whole being not permissible in law,
suffice it is to refer to Harihar Banerji Vs. Ramshashi Roy AIR
1918 Privy Council 102 and to S. Sanyal Vs. Gian Chand AIR 1968
SC 438, Habibunnisa Begum Vs. G. Doraikannu Chettiar (2000) 1
SCC 74 holding that the contract of tenancy being single and
indivisible, in the absence of any statutory provision to that effect,
cannot stand substituted by a contract of tenancy of different portions
with different landlords thereof. Mention may also be made of
Chemons India Pvt. Ltd. Vs. Vijay Singh Sandhu 204 (2013) DLT
260.
32. I do not find anything in language of Section 37 or Section 109
of the Transfer of Property Act for splitting up of a single tenancy
into several tenancies. All that the said provisions provide is, (i) that
if in consequence of a transfer, a property is divided and held in
several shares and the benefit of any obligation relating to the
property "as a whole" passes from one to several owners of the
property, the corresponding duty shall be performed in favour of
each of the owners in proportion to value of his share in the property,
provided that the duty can be severed and that the severance does not
substantially increase the burden of the obligation; if the duty cannot
be severed or if the severance would substantially increase the
burden of the obligation, the duty shall be performed for the benefit
RSA No.148/2017 Page 23 of 35
of such of the several owners as they shall jointly designate; and, (ii)
that the transferee shall possess all the rights to the property or part
transferred. Nothing in the said provision provide for splitting up of
the single tenancy into several tenancies.
33. The counsel for the appellant/defendant in this regard though
has also referred to Bismillah Be Vs. Majeed Shah (2017) 2 SCC
274 but the same is not found to have application to the facts of the
present case. All that the said judgment holds is that though by virtue
of Section 116 of the Indian Evidence Act, 1872, the tenant is
estopped from challenging the title of his landlord during
continuance of the tenancy, yet the tenant/lessee is entitled to
challenge the derivative title of an assignee/vendee of the original
landlord/lessor of the demised property in an action brought by the
assignee/vendee against the tenant for his eviction from the demised
property under the Rent laws; this right of a tenant however is
subject to the caveat that the tenant/lessee has not attorned to the
assignee/vendee; if the tenant/lessee pays rent to the assignee/vendee
of the tenanted property, then it results in creation of an attornment
between the parties, which in turn deprives the tenant/lessee to
challenge the derivative title of an assignee/vendee in the
proceedings. The said judgment cannot be permitted to be stretched
to the question, whether on partition/transfer there is splitting up of
erstwhile single tenancy.
34. As far as the argument of the counsel for the
appellant/defendant with respect to receipts is concerned, admittedly
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the receipts were prepared by the tenant and sent along with the
cheques for rent. It has already been discussed above that mere
apportionment of rent or the act of the tenant of paying proportionate
rent to the transferee or to another who has been found to have share
in the property, in the absence of a plea or evidence of a fresh
contract of tenancy, does not constitute a fresh contract of tenancy.
35. What follows is that in the absence of fresh agreement of
lease, there can be no splitting up of tenancy.
36. Neither has the appellant/defendant pleaded any fresh
agreement nor has the counsel for the appellant/defendant urged so.
On the contrary, the contention of the counsel for the
appellant/defendant is of splitting up of tenancy being a legal
consequence of partition and which is not found to be a correct
proposition of law especially in view of recent dicta in M.
Meeramytheen supra.
37. There is thus no merit in the contention, that the tenancy of the
appellant/defendant under Nannu Mal Jain with respect to the
premises stood split up into separate tenancies under Nannu Mal Jain
and his wife Chander Kala Jain or the payment by the
appellant/defendant of half of the rent to Nannu Mal Jain and the
other half to Chander Kala Jain by separate cheques having resulted
in splitting up of tenancy. The position has already been well
enunciated in Dr. Amar Prasad Goopta and Mahmudul Haq supra.
38. Before parting with the subject, I may however record that
both Sections 37 & 109 of the Transfer of Property Act provide for
RSA No.148/2017 Page 25 of 35
consequences of transfer of property. Section 5 of the Transfer of
Property Act defines 'transfer' as an act by which a living person
conveys property in present or in future to one or more other living
persons or to himself and one or more other living persons. Strictly
speaking, in the case of partition, there is no transfer/conveyance of
property from one person to another; what happens is that the shares
of more than one owner of the property, hitherto undivided, are
determined and/or property divided by metes and bounds. Thus
though the question hereinabove has been discussed in the context of
Section 37 and Section 109, stricto sensu the said provisions are not
applicable to a case of transfer.
39. I am thus of the view that the proposition urged does not admit
any question of law which is not finally settled or is not far from
difficulty or calls for discussion of alternate views and which alone
as per dicta in Chunilal V. Mehta and Sons, Ltd. Vs. Century
Spinning and Manufacturing Co., Ltd. AIR 1962 SC 1314 and
Kashmir Singh Vs. Harnam Singh (2008) 12 SCC 796, constitutes a
substantial question of law.
40. That brings me to the contention of the counsel for the
appellant/defendant on which notice was issued i.e. of the First
Appellate Court having erred in not considering the challenge made
by the appellant/defendant in the First Appeal to the orders of the
Suit Court closing the right of the appellant/defendant to cross-
examine PW2 and PW3 examined qua the rate of mesne profits. The
First Appellate Court is indeed found to have erred in holding the
RSA No.148/2017 Page 26 of 35
said orders to have attained finality on no challenge immediately
being made thereto. The counsel for the appellant/defendant has
rightly referred to Section 105(1) of the CPC in this regard which
entitled the appellant/defendant to challenge the same in First Appeal
preferred against the final judgment in the suit.
41. However merely for the said error committed by the First
Appellate Court, the Second Appeal will not be entertainable. The
same would not constitute a substantial question of law. I have thus
perused the Suit Court record requisitioned in this Court to find,
whether the closure by the Suit Court of the right of the
appellant/defendant to cross-examine PW2 and PW3 amounts to
violation of the principles of natural justice or an error, defect or
irregularity affecting the decision of the suit, within the meaning of
Section 105 of the CPC.
42. It is found, (i) that the issues in the suit were framed on 3rd
May, 1994; (ii) however the statement of the respondent
no.1/plaintiff was recorded only on 29th January, 1997; (iii) statement
of PW2 Shri P. Satish Sethi, General Manager of the branch of
Vijaya Bank at 2/10, Daryaganj, Delhi was recorded on 21st July,
1998; Shri Sanjay Bhardwaj proxy counsel for the
appellant/defendant present on behalf of the appellant/defendant on
that date refused to cross-examine the said witness and sought
adjournment; finding that the suit was being adjourned several times
for recording the evidence of the said witness, adjournment was
denied and right to cross-examine PW2 closed; (iv) thereafter,
RSA No.148/2017 Page 27 of 35
several dates were consumed in the application of the
respondents/plaintiffs for amendment of the plaint and completion of
pleadings in the amended plaint; (v) the appellant/defendant did not
file any application seeking opportunity to cross-examine PW2; (vi)
the respondents/plaintiffs examined PW3 Shri D.K. Suri, Senior
Manager, Allahabad Bank on 27th May, 1999; none appeared for the
appellant/defendant from morning till 1320 hours to cross-examine
the said witness and hence the opportunity to cross-examine the said
witness was also closed and the suit put up on 28 th July, 1999 for
evidence of the appellant/defendant; (vii) the appellant/defendant did
not make any application explaining absence on 27th May, 1999 or
seeking opportunity to cross-examine PW3; (viii) the sole witness of
the appellant/defendant was examined and cross-examined on 12th
May, 2007 and 5th November, 2007; and, (ix) the appellant/defendant
at no point of time, till the judgment in the suit, applied for an
opportunity to cross-examine PW2 or PW3 or explained the reasons
for non-cross-examination of the said witnesses when their
examination-in-chief was recorded.
43. The suit, as aforesaid, remained pending from 1st October,
1993 till 28th February, 2013 i.e. for nearly twenty years.
44. I have also perused the First Appellate Court file requisitioned
in this Court to see the errors pleaded, by the appellant/defendant in
the memorandum of First Appeal, in the orders dated 21st July, 1998
and 27th May, 1999 by which the right of the appellant/defendant to
cross-examine PW2 and PW3 respectively was closed. All that is
RSA No.148/2017 Page 28 of 35
pleaded is, (i) that the counsel for the appellant/defendant could not
appear in cross-examination "on account of some difficulty"; (ii) that
the Suit Court did not consider that PW2 was a crucial witness; (iii)
that the testimony of PW2 itself had been brought on record to the
Court after several opportunities and equal number of opportunities
should have been afforded to the appellant/defendant also to cross-
examine PW2; (iv) that the Court, notwithstanding non-appearance
of the counsel for the appellant/defendant on 27th May, 1999, after
examining PW3, should have adjourned the suit for cross-
examination of PW3.
45. It would thus be seen that there was no explanation whatsoever
lest sufficient cause in the memorandum of First Appeal, for failure
of the appellant/defendant to cross-examine PW2 and PW3. On the
contrary, the counsel for the appellant/defendant appears to be under
an obviously wrong impression that it is not the duty of the counsel
to at least appear on the dates fixed for hearing and that the Court,
notwithstanding the counsel's non-appearance, is required to await
the counsel and/or issue "invitation" to the counsel to come to the
Court and perform his duty. There is not a whisper in the
memorandum of First Appeal as to why the appellant/defendant did
not immediately apply to the Suit Court as indeed in law it could
have done, for an opportunity to cross-examine PW2 & PW3. It
appears that the appellant/defendant did not have anything to cross-
examine the said witnesses and was only interested in keeping the
suit pending as indeed the appellant/defendant has succeeded in
doing for nearly twenty years. If the suit had proceeded as is the want
RSA No.148/2017 Page 29 of 35
of the appellant/defendant, it would have perhaps remained pending
for double that amount of time.
46. Even before me, the counsel for the appellant/defendant has
not given any such reason or explanation whatsoever.
47. Once that is so, the Second Appeal cannot be entertained for
the reason of error aforesaid committed by the First Appellate Court.
The outcome of the First Appeal would have still been the same.
Similarly, it cannot be said in the aforesaid circumstances that the
non-cross-examination by the appellant/defendant of PW2 and PW3
affected the outcome of the suit.
48. The only other argument of the counsel for the
appellant/defendant is, (i) that the Suit Court has arbitrarily awarded
damages/mesne profits at the same rate as claimed in the amended
plaint; (ii) that mesne profits have been awarded relying on
depositions of PW2 and PW3, without giving any reason as to why
the deposition of only one of the said witnesses has not been
accepted; and, (iii) that the rate at which mesne profits have been
awarded would be much lower if determined on the basis of
testimony of one of the witnesses only.
49. I may at the outset mention that though the
appellant/defendant in the First Appeal also challenged the rate at
which mesne profits have been awarded, but the First Appellate
Court has qua the rate also concurred with the findings of the Suit
Court. Thus, there are concurrent findings of the Courts below qua
the rate of mesne profits and I have wondered whether any
RSA No.148/2017 Page 30 of 35
substantial question of law can be said to arise with respect to the
challenge in the Second Appeal qua the rate at which mesne
profits/damages for use and occupation have been awarded.
50. Supreme Court, in Damodar Lal Vs. Sohan Devi (2016) 3 SCC
76, referring to Kulwant Kaur Vs. Gurdial Singh Mann (2001) 4
SCC 262, Krishnan Vs. Backiam 2007) 12 SCC 190, Gurvachan
Kaur Vs. Salikram (2010) 15 SCC 530 and S.R. Tewari Vs. Union of
India (2013) 6 SCC 602 held, (a) that the First Appellate Court under
Section 96 CPC is the last Court of facts; (b) the High Court in Second
Appeal under Section 100 CPC cannot interfere with findings of fact
recorded by the First Appellate Court under Section 96 CPC; (c) the
findings of fact of First Appellate Court can be challenged in Second
Appeal on the ground that the said findings are based on no evidence
or are perverse; (d) even if the finding of fact is wrong, that by itself
will not constitute a question of law; the wrong finding should stem
out of a complete misreading of evidence or it should be based only on
conjunctures and surmises; (e) if to a reasonable man, the conclusion
on the facts in evidence made by the Courts below is possible, there is
no perversity; (f) inadequacy of evidence or a different reading of
evidence is not perversity; (g) Code of Civil Procedure (Amendment)
Act, 1976 introduced a definite restriction on the exercise of
jurisdiction in a Second Appeal; (h) where it is found that findings
stand vitiated on wrong test and on the basis of assumptions and
conjunctures and resultantly there is an element of perversity involved
therein, the High Court will be within its jurisdiction to deal with the
issue; this is however only in the event such a fact is brought to light
RSA No.148/2017 Page 31 of 35
explicitly; (i) the findings of fact recorded by Court can be held to be
perverse if the findings have been arrived at by ignoring or excluding
relevant material or by taking into consideration
irrelevant/inadmissible material or if the finding is against the weight
of evidence or if the finding so outrageously defies logic as to suffer
from vice of irrationality; (j) however if there is some evidence on
record which is acceptable and which could be relied upon, the
conclusion would not be treated as perverse and the findings will not
be interfered with.
51. Applying the aforesaid parameters, the arguments aforesaid of
the counsel for the appellant/defendant qua the rate of mesne profits,
do not raise any substantial question of law. The Suit Court in this
regard has reasoned, (i) that PW2 deposed that Vijaya Bank had
taken basement of property bearing no.2/10, Daryaganj, measuring
1874 sq. yds. in January, 1988 at a rent of Rs.12 per sq. ft. per month
w.e.f. 1998 with an increase in rent after five years by 25% over the
last paid rent; (ii) that PW3 Shri D.K. Suri, Senior Manager,
Allahabad Bank also deposed of having taken premises in Daryaganj
area on 30th March, 1990 at a rent of Rs.1,90,825/- per month.
Accordingly, the Suit Court passed a decree for recovery of mesne
profits from the appellant/defendant for the months of August and
September, 1993 of Rs.1,43,660/-, w.e.f. 1st August, 1993 till 26th
February, 1998 @ Rs.71830.20p per month and w.e.f. 1st March,
1998 @ Rs.1,61,617.95 per month.
RSA No.148/2017 Page 32 of 35
52. The First Appellate Court has found the rate at which mesne
profits have been awarded by the Suit Court to be in consonance with
the evidence of PW2 and PW3.
53. In the aforesaid circumstances, the finding of fact qua the rate
of mesne profits cannot be said to be perverse and the counsel for the
appellant/defendant has also been unable to contend so. This Court,
in M.R. Sahni Vs. Doris Randhawa 2008 (104) DRJ 246, exercising
jurisdiction under Section 100 of the CPC, finding "some evidence"
to sustain finding of mesne profits, held the same cannot be faulted
with. Similarly, in Aisha Begum Vs. Mohd. Ibrahim 2010 SCC
OnLine Del 2807 it was held that no question of law lest substantial
question of law arose qua rate of mesne profits.
54. The counsel for the appellant/defendant has however handed
over in the Court the judgment titled Union of India Vs. M/s.
Banwari Lal & Sons (P) Ltd. 2004 (4) SCALE 443, though without
referring to the same, where, in the course of fixation of damages
under the Requisition and Acquisition of Immovable Property Act,
1952, reference was made to the valuation in the municipal record.
The said judgment can have no application. The Requisition and
Acquisition of Immovable Property Act, in Section 8 thereof lays
down the parameter for assessment of damages. On the contrary,
Section 2(12) of the CPC defines mesne profits as profits which the
person in wrongful possession of such property actually received or
might with ordinary diligence have received therefrom together with
interest on such profits. The benefit which the appellant/defendant
RSA No.148/2017 Page 33 of 35
derived from continuing in unauthorised possession of the premises
inspite of determination of tenancy with respect thereto, for merely
24 years, is the rent which the appellant/defendant would have paid
for similar accommodation if had immediately on determination of
tenancy vacated the premises. There could be no better measure of
such mesne profits than the prevalent rent of the premises in the
vicinity and on which evidence, mesne profits in the present case
have been determined.
55. Even otherwise, considering the prime location of the property
and the size thereof, the mesne profits determined are found to be on
the lower side only. The premises, earlier in the tenancy of the
appellant/defendant, as per the site plan Ex. P23 comprises of a total
covered area of 2394.34 sq. ft. and the mesne profits awarded of Rs.
1,43,660/- w.e.f. 1st August, 1993 till 26th February, 1998 @
Rs.71830.20p per month and w.e.f. 1st March, 1998 @
Rs.1,61,617.95 per month cannot be said to be outrageously absurd.
56. The counsel for the respondents/plaintiffs states that the
respondents/plaintiffs have filed cross-objections qua the date from
which interest is payable. It is contended that there is no clarity in the
judgment of the Suit Court affirmed by the First Appellate Court in
this regard.
57. The Suit Court has awarded interest @ Rs.6% per annum,
without specifying the date from which the interest is to run and till
when.
RSA No.148/2017 Page 34 of 35
58. The cross-objections are not found on record and are reported
to be lying in the Registry in objections.
59. The counsel for the appellant/defendant however has no
objection to the same being clarified. He also states that it be also
clarified that the amounts paid by the appellant/defendant from time
to time are to be adjusted out of the mesne profits decreed.
60. The counsel for the respondents/plaintiffs has no objection.
61. Accordingly, while dismissing this Second Appeal as not
raising any substantial question of law, it is clarified (i) that interest
on mesne profits @ 6% per annum is to be computed on the mesne
profits due for each month, from the end of that month and till the
date of payment/realisation; and, (ii) that from the mesne profits
decreed for each month, the amount if any paid by the
appellant/defendant to the respondents/plaintiffs for that month is to
be deducted.
62. The counsel for the appellant/defendant having argued this
appeal expeditiously and in a fair manner, no costs.
63. Trial Court record be sent back.
RAJIV SAHAI ENDLAW, J.
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