Delhi District Court
Smt. Abnash Rani Suri vs Smt. Santosh Chaudhary on 5 September, 2011
IN THE COURT OF SH. BRIJESH KUMAR GARG:
ADDITIONAL DISTRICT JUDGE08, CENTRAL, DELHI.
SUIT NO. 243/2011
SMT. ABNASH RANI SURI PLAINTIFFS
VS.
SMT. SANTOSH CHAUDHARY DEFENDANTS
05.09.2011
ORDER
This order shall dispose off the application of defendant no.
1 & 2, under Order 7 Rule 11 R/W Section 151 CPC, moved on 10.12.2008.
2 It has been stated in the application that the plaintiff has filed the present suit for possession, recovery of arrears of rent and injunction. Originally, the suit was filed against the applicants by four coplaintiffs, who claimed to be the coowners of the suit property, in equal, but undivided shares.
3 It is further stated that on 23.11.2003, the plaintiff no. 1 expired and vide order dated 8.11.2004, the plaintiff no. 2 was brought on record as her legal representative. It is further stated that on 3.9.2003, the plaintiff no. 3 & 4 sold their 50 % undivided share in the suit property to one Qutub Apartments Pvt. Ltd. and prior to sale of their undivided share, they also moved an application before the court for deleting their names from the array of parties. Vide order dated 21.9.2006, the said application was allowed and the names of plaintiff no.
3 & 4 were deleted from the array of parties.
4 It is further stated that after deletion of plaintiff no. 3 & 4, the present suit is not maintainable as the same is barred for splitting up of tenancy. It is further stated that plaintiff no. 3 & 4 had already sold their undivided 50 % share in the suit property to defendant no. 3 and defendant no. 3 is not claiming the possession of the suit property from the remaining defendants and therefore, the plaint be rejected under the provisions of Order 7 Rule 11 CPC.
5 Reply to this application has been filed by the plaintiff, wherein, it has been stated that the present application is misconceived and has been moved to stall the process of law. It is further stated that on the date of institution of the present suit, all the coowners had validly terminated the tenancy of defendant no. 1 & 2 and therefore, the question of splitting up of the tenancy does not arise, even on a subsequent date.
It has been prayed that the present application be, therefore, dismissed with costs.
6 Sh. C.P. Vig Adv. for the plaintiff, Sh. Sanjeev Kakra & Sh. Saif Mehmood, Advocates for the defendant no. 1 & 2 and Sh. Anil Sapra Adv. for defendant no. 3 have addressed their arguments on the present application. The main contention of the Ld. counsel for the applicants i.e. defendant no. 1 & 2, has remained that after selling off the undivided 50 % share by the original plaintiff no. 3 & 4 to defendant no.
3, the suit of the plaintiff is not maintainable as the splitting up of the tenancy is not permissible under the law. The counsel for the defendant no. 3 has also argued that defendant no. 3 had already extended the tenancy of remaining defendants by executing the lease deed dated 25.8.2009 and the defendant no. 3 does not want the possession of his undivided share and the portion of the suit property and therefore, the suit premises, for which, the plaintiff is claiming possession, is not identifiable and therefore, the present plaint be rejected.
7 On the other hand, the Ld. counsel for the plaintiff has argued that the question of splitting up of tenancy does not arise at all as all the coowners were originally the plaintiffs to the present suit and any subsequent development cannot frustrate the right of the plaintiffs and therefore, the suit of the plaintiff, for possession of the entire suit premises is well maintainable.
8 I have carefully gone through the case file and I have given my considered thoughts to the arguments addressed by the Ld. counsels for the parties. From the pleadings of the parties and from the submissions of their Ld. counsels for the parties, the following admitted facts have emerged:
i) That the present suit was instituted by all the coowners against the defendants for possession, recovery of arrears of rent and for permanent injunction.
ii) That during the pendency of the suit, the plaintiff no. 1 Sh. P.L. Suri expired, on 23.11.2003, and vide order dated 8.11.2004, the plaintiff no. 2 was impleaded as a plaintiff, being the legal representative of deceased Sh. P.L. Suri.
iii) That the original plaintiffs no. 3 & 4 have sold their undivided share in the suit property to the defendant no. 3.
iv) That the defendant no. 3 had already extended the tenancy of defendant no. 1 & 2 vide lease deed dated 25.8.2009, in respect of its undivided 50 % share in the suit property.
9 It is a matter of record that after sale of 50 % share by plaintiffs no. 3 & 4, the application was moved by them for their deletion from the array of parties and the said application was allowed by the Ld. Predecessor of this court, vide order dated 21.9.2006.
10 In support of his contentions, the Ld. counsels for the plaintiff has relied upon the following judgments: (i) India Umbrella Manufacturing Co. & Ors. Vs. Bhagabandel Agarwalla(Dead) by Lrs. and others, reported as, AIR 2004 Supreme Court 1321; (ii) Surender Kumar Jain & Anr. Vs. Attar Chand Jain & Ors, reported as, 2004 VIII AD 238; (iii) Hardeo Rai Vs. Sakuntala Devi & Ors., reported as (2008) 7 Supreme Court Cases 46; (iv) Peethani Suryanarayana & Anr. Vs. Repaka Venkata Ramana Kishore & Ors., reported as (2009) 11 Supreme Court Cases 308; (v) Ramdas Vs. Sitabai & Ors., reported as 2009 (7) SCC 444 and (vi) judgment dated 4.7.2011 in case titled as S.N. Sheopuri Vs. Fab India Overseas P. Ltd.
11. On behalf of defendant no. 1 & 2, the Ld. counsels have relied upon the following judgments: (i) Sk Sattar Sk Mohd Choudhari Vs. Goundappa A Bukate, reported as AIR 1997 SC 998; (ii) Habibunnisa Begum Vs. G Doraikanu Chettiar, reported as AIR 2000 SC 152; (iii) Abdul Salam Vs. Ghouse Bi, reported as 1989 (1) KarLJ 16= Manu/KA/0329/1988 and (iv) Ravinder Singh Vs. Bhagwant, reported as (2003) 135 PLR 15 + Manu/PH/0564/2003.
12. From the perusal of the record and from the perusal of the various judgments cited by the Ld. counsels for the parties, I am of the considered opinion that these judgments are not applicable to the facts and circumstances of the present case as, in the considered opinion of this court, the question of splitting up of tenancy does not arise at all.
13. It has been held by the Hon'ble Supreme Court of India in case titled as Pramod Kumar Jaiswal & Ors. Vs. Bibi Husn Bano & Ors., reported as 2005 AIR (SC) 2857, as under:
17. Obviously, the taking of an assignment of a fraction of the reversion, or the rights of a coowner landlord, does not and cannot bring about a determination of the lease in terms of Section 111(d) of the Transfer of Property Act. That a lease is not extinguished because the lessee purchases a part of the reversion was laid down by the Privy Council in Faquir Baksh v. Murli Dhar (58 Indian Appeals 75). Their Lordships after setting out the terms of Section 111 of the Transfer of Property Act quoted with approval the statement of the law made by the trial court in that case that for a merger to take place, " The fusion of interests required by law is to be in respect of the whole of the property." This Court in Badri Narain Jha and others v. Rameshwar Dayal Singh and others (1951 SCR 153) held that if a lessor purchases the whol of the lessee's interest, the ease is extinguished by merger, but there can be no merger or extinction where one of several joint holders of the mokarrai interest purchases portion of the lakhraj interest. It was held that when there was no coalescence of the interest of the lessor and the lessee in the whole of the estate, there could be no determination of the lease by merger. We do not think that it is necessary to multiply authorities in the face of the plain language of the provision and the authoritative pronouncements of the Privy Council of this court referred to above. The position emerging from the relevant provision of the Transfer of Property Act is that the lease or tenancy does not get determined, by the tenant acquiring the rights of a coowner landlord and a merger takes place and the lease gets determined only if the entire reversion or the entire rights of the landlord are purchased by the tenant.
18. In Abul Alim V. Sheikh Jamal Uddin Ansari (Supra) relied on by the learned counsel for the appellants, the question has not been considered with reference to the relevant provision of the Transfer of Property Act referred to above. There is also no discussion on this question. It appears that in that case, an application filed by the landlord under Section 21(1) (a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 for release of the building from the tenant, was held to be not maintainable because the tenant had in the meanwhile acquired coownership in the demised shop. It is simply stated:
'that the change of status of the tenant to that of being an equal coowner of the uppartitioned property, would, therefore, lead to an irresistible conclusion that the release application was not maintainable. It is not disputed that there has been no partition of the suit premises till date. The High court was under the circumstances not justified in upsetting the findings of the trial court and the appellate court in exercise of its powers under writ jurisdiction.' . . . . . .
21. In T. Lakshmipathi and ors., vs. P. Nithyananda Reddy and others(supra) this Court considered the question in detail in the context of Sections 105 and 111 of the Transfer of Property Act and came to the conclusion that there isn o determination of the lease in terms of Section 111(d) of the Transfer of property Act where a tenant acquires only partial ownership interest. After referring to the decision of the Privy Council, the decision of this Court and other relevant materials, this Court held that the lease cannot be said to have been determined by merger so long as the interests of the lessee, the lesser estate and that of the owner, the larger estate, do not come to coalesce in full. This Court also noticed that merger was largely a question of intention dependent on certain circumstances and the courts will presume against it when it operates to the disadvantage of a party.
With respect we find that the position has been correctly stated in T. Lakshmipathi and ors. v. P. Nithyananda Reddy and others(supra). The subsequent decision in India Umbrella Manufacturing Co. and Others V. Shangabandei Agarwalla (dead) by Lrs. Savitri Agarwalla (Smt.) and Others (supra) also proceeds on the same lines and supports the above position. We approve the principle of law stated in T. Lakshmipathi and ors. v. P. Nithyananda Reddy and others(supra).
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23. When an owner of property grants a lease to another, he retains with himself the reversion and transfers the right as a lessee to the transferee. When that transferee, the first lessee, leases out the building or a part thereof further, that lessee retains with him the reversion of that sublease and transfers to the sublessee only the rights of a lessee under him. Even in spite of the transfer of the reversion of the first lease by the ultimate landlord to the sublessee, the original lessee, on the strength of the tenancy created by him, is entitled to seek eviction of his tenant, namely, the subtenant on the strength of his letting. The fact that the subtenant had acquired the ultimate reversion, might not stand in the way since so long as the tenancy in favour of the original lessee is not terminated in the mod known to law, that lessee would continue to enjoy the rights of the transfer in his favour by way of lease. The merger takes place in terms of Section 111(d) of the Transfer of Property Act, only in a case where the interests of the lessee and that of the lessor in the whole of the property, become vested at the same time in one person, in the same right. In Nalakath Sainuddin V. Koorikadan Sulaiman (supra) such a subtenant had rightly approached the Rent Control Court for eviction of his lessor, the lessee from the landlord, by invoking the relevant provisions of the Rent Control Act on the strength of the transfer of ownership in his favour by the head lessor. The rights under the original lease still continued with the original lessee and the right in the property to possess, outstanding with the lessee had not come into the hands of the sublessee merely on the strength of the assignment of the ultimate reversion. It could not, therefore, be said that there was a coalescing of the interest of the lessee and the lessor in the assignee landlord, (the subtenant) in respect of the original lease in the whole of the property as contemplated by Section 111(d) of the Transfer of Property Act. The decision in Nalakath Sainuddin V. Koorikadan Sulaiman (supra) is of no avail to the appellants.
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33. Here in this case, the lessee has acquired only the rights of certain coowner landlords and may have the right to work out his rights against the others. The right to work out his rights would not enable him to plead that the two rights in the whole of the property has come to vest in him. What is involved in the present case is the question whether on the acquisition of the rights of some of the co owner landlords by the tenant, there is an extinguishment of the tenancy by merger as postulated by Section 111(d) of the Transfer of Property Act. T. Lakshmipathi answers that question and with respect, answers that question correctly.
34. A plain and grammatical interpretation of Section 111(d) of the Transfer of Property Act leaves no room for doubt that unless the interests of the lessee and that of the lessor in the whole of the property leased, become vested at the same time in one person in the same right, a determination of the lease cannot take place. On taking an assignment from some of the coowner landlords, the interests of the lessee and the lessor in the whole of the property do not become vested at the same time in one person in the same right. Therefore, a lessee who has taken assignment of the rights of a coowner lessor, cannot successfully raise the plea of determination of tenancy on the ground of merger of his lessee's estate in that of the estate of the landlord. It is, thus, clear that there is no substance in the contention of the learned counsel for the appellants that in the case on hand, it should have been held that the tenancy stood determined and the application of the landlord for a direction to the tenant to deposit the rent in arrears should have been dismissed. The position of the appellants as tenants continue and they are bound to comply with the requirements of the Rent Control Act under which the order for deposit has been passed against them. The High Court has rightly dismissed the revision.
14. The above judgment of the Hon'ble Supreme Court has been followed in various subsequent judgments by the various High Courts in India. It has been held by the Hon'ble High Court of Madhya Pradesh, in case titled as Hameeda Begum V. Champa Bai Jain, reported as 2009(4) R.C.R. (Civil) 718, as under :
8. Following questions arise for consideration in appeal: "(i) Whether due to execution of sale deed dated 2.2.1982 and 20.9.1982 tenancy stood extinguished by merger as postulated under section 111(d) of TP Act or in other words purchaser of part of property Inder Kumar Jain and other defendants who have not purchased property continue to be the tenant and bound to comply with the requirements of Rent Controlling Act and are liable to be evicted on the grounds contemplated under the M.P. Accommodation Control Act?
(ii) Whether even by filing suit for partition the plaintiffs can recover possession of entire property from defendants no. 1,2 and 3, particularly when only part of tenanted premises has been purchased by Inder Kumar Jain, or the remedy is to recover the possession on the ground under Section 12(1) of M.P. Accommodation Control Act?
(iii) Whether the present suit can be said to be based on fresh cause of action and genuine requirement of plaintiff under Section 12 (1) (f) of M. P. Accommodation Control Act and considering the relief for declaration that sale deeds are null and void whether the decisions in previous civil suit out of which SA. No. 813/95 arose and the decision in CR No. 1676/01 (Hameeda Begum V. Champabai Jain) can be said to be res judicata and binding inter se parties, moreso in view of decision in Pramod Kumar Jaiswal and others V. Bibi Husn Bano(Supra) on question of law?
(iv) Whether the sale deeds dated 2.2.1982 and 20.9.1982 can be declared null and void due to failure of Inder Kumar Jain to sue for partition and separate possession within 12 years of purchasing the property by applying Article 65 of Limitation Act?
(v) In case defendant Inder Kumar is not tenant and in case of coowner whether he can retain the possession of the entire house whereas he had purchased smaller portion vide registered sale deeds dated 2.2.1982 and 20.9.1982 from one of the coowner?
9. In Ref. Question No. (i): The undisputed fact, in the instant case, is that Inder Kumar Jain had purchased only part of the property vide registered sale deeds dated 2.2.1982 and 20.9.1982, the property is undivided, the original tenant Shikhar Chand Jain was his father, in his lifetime he occupied the premises as tenant, he died in the year 1989. The tenancy right had devolved upon the LRs on death of Shikharchand Jain, Inder Kumar Jain defendant no. 3 is not the only person who inherited the tenancy, there are other tenants also, widow and her son defendant no. 1 and 2, and in our opinion, there is no merger of the tenancy by virtue of Section 111(d) of the Transfer of Property Act, 1882 which provides thus:
"111. Determination of lease, A lease of immovable property determines:
(d) In case the interests of the lessee and the lessor in the whole of the property become vested at the same time in one person in the same right."
In Inder Kumar Jain the interest of lessee and lessor in the whole of the property has not vested, at the same time, he has purchased only part of property. There is no merger of tenancy into coownership right. Question is what is the status of the defendants, their status in the absence of determination under Section 111 of T.P. Act is that of the tenant and Inder Kumar Jain defendant no. 3 is only a purchaser of part of the property and larger portion still belongs to the plaintiffs, defendants no. 1 & 2 continue in premises as coowner, even entire property hasnot been purchased, even part of the property cannot be said to be possessed by defendant no. 3 as coowner as there was no partition. The property remains undivided so far, is not disputed on facts. Until and unless there is merger of tenancy rights into the coownership right of Inder Kumar Jain, the status of the defendant no. 3 remains as tenant in the absence of merger of tenancy beside defendants no. 1 & 2 continue to be tenant which is precisely the question decided by the Apex Court in similar facts in Pramod Kumar Jaiswal and others, v. Bibi Husn Bano and others (supra) in which the lessee had acquired only the rights of certain coowner landlords and may have the right to work out his rights against the others. The right to work out his rights would not enable him to plead that the two rights in the whole of the property have come to vest in him. The question whether on the acquisition of the rights of some of the coowner landlords by the tenant, there is an extinguishments of tenancy by Section 111(d) of the Transfer of Property Act. On taking an assignment from some of the coowner landlords, the interests of the lessee and the lessor in the whole of the proprty do not become vested at the same time in one person in the same right. Therefore, a lessee who has taken determination of tenancy on the ground of merger of his lessee's estate in that of the estate of the landlord. The Apex Court has laid down that tenancy did not come to an end, the position of the lessee as tenant continued and they are bound to comply with the requirement of Rent Control Act under which order for deposit of arrears of rent has been passed against them. The ownership of the property which is subjectmatter of tenancy is certainly a larger estate than the tenancy itself. If the tenant acquires the entire interest of the owner in the whole of the state forming the subject matter of tenancy, tenancy could have merged into owners and the estate of tenant stands enlarged into that of a full owner. The tenant cannot be the owner/co owner and tenant at the same time. The Apex Court has laid down in Pramod Kumar Jaiswal and others v. Bibi Husn Bano and others (supra) thus:
"Ownership of the property which is the subjectmatter of tenancy is certainly a larger estate than the tenancy itself and naturally larger than the subtenancy. If the subtenant acquires the entire interest of the owner in the whole of the estate forming the subject matter of subtenancy, the subtenancy merges into ownership and the estate of subtenant stands enlarged into that of a full owner. The sub tenant cannot be the owner and the subtenant both at the same time. Of course, the situation would have been different if the subtenant would not have acquired the entire estate of the owner or the ownership interest in the entire estate forming subjectmatter of sub lease, as was the case in Badri Narain Jha an others vs. Rameshwar Dayal Singh and others, AIR 1951 SC 186 or in Shaikh Faqir Baksh v. Murli Dhar and others, AIR 1931 PC 63.
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14. On the admitted facts and based on the arguments, the only question that requires to be considered is the effect of the purchase of the rights of certain coowner landlords by the tenants of the building, on the lease originally taken by them and on the basis of which they held the building. A lease in terms of section 105 of the Transfer of Property Act gets determined on teh happening of one of the events referred to in Section 111 of the Transfer of Property Act. The clause relevant for our purpose is admittedly Clause(d). Insofar as it is relevant, the section reads:
"Section 111: Determination of lease A lease of immovable property determines
(a) x x x x
(b) x x x x
(c) x x x x
(d) In case the interests of the lessee and the lessor in the whole of the property become vested at the same time in one person in the same right.
(e) x x x x (f) x x x x (g) x x x x''
On a plain reading of the provision, it is clear that in case where a tenant takes an assignment of the rights of the landlord or the reversion, the lease is determined, only in a case where by such assignment, the interests of the lessee and the lessor in the whole of the property, become vested in the tenant. The emphasis in the section is clearly on the coalescing of the entire rights of the lessor and the lessee in the whole of the property in the hands of the lessee. The above provision incorporates the doctrine of merger at common law.
According to Blackstone(as quoted in Broom's Legal Maxims):
"When a less estate and a greater estate, limited subsequent to it, coincide and meet in one and the same person without any intermediate estate, the less is immediately annihilated; or in the law phraseology, is said to be merged, that is sunk or drowned in the greater; or to express the same thing in other words, the greater estate is accelerated so as to become at once an estate in possession."
In Cheshire and Bum's Modern Law of Real Property, 16th Edition, it is stated, " The term, 'merger' means that, where a lesser and a greater estate in the same land come together and vest, without any intermediate estate, in the same person and in the same right, the lesser is immediately annihilated by operation of law. It is said to be "merged", that is, sunk or drowned, in the greater estate." It is further stated: "The essentials are that the estates shall unite in the same person without any intervening estate, and that the person in whom they unite shall hold them both in the same right.
To illustrate the first essential, if A, who is tenant for life, with remainder to B for life, remainder to C in fee, purchases and takes a conveyance of C's fee, the intervening life interest of B, since it is vested, excludes the possibility of merger."
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35. Here in this case, the lessee has acquired only the right of certain coowner landlords and may have the right to work out his rights against the others. The right to work out his rights would not enable him to plead that the two rights in the whole of the property has come to vest in him. What is involved in the present case is the question whether on the acquisition of the rights of some of the coowner landlords by the tenant, there is an extinguishment of the tenancy by merger as postulated by section 111(d) of the Transfer of Property Act. T. Lakshmipathi answer that question and with respect, answers that question correctly, AIR 2003 SC 2427:2023 AIR SCW 2436.
36. A plain and grammatical interpretation of section 111(d) of the Transfer of Property Act leaves no room for doubt that unless the interests of the lessee and that of the lessor in the whole of the property leased, become vested at the same time in one person in the same right, a determination of the lease cannot take place. On taking an assignment from some of the coowner landlords, the interests of the lessee and the lessor in the whole of the property do not become vested at the same time in one person in the same right. Therefore, a lessess who has taken assignment of the rights of a coowner lessor, cannot successfully raise the plea of determination of tenancy on the ground of merger of his lessee's estate in that of the estate of the landlord. It is, thus, clear that there is no substance in the contention of the learned counsel for the appellants that in the case on hand, it should have been held that the tenancy stood determined and the application of the landlord for a direction to the tenant to deposit the rent in arrears should have been dismissed. The position of the appellants as tenants continue and they are bound to comply with the requirements of the Rent Control Act under which the order for deposit has been passed against them. The High Court has rightly dismissed the revision."
12. In Ref. Question No. (ii): In the instant case when we consider the facts also Smt. Champa Bai Jain, widow of late Shikharchand Jain has also inherited the tenancy beside Puranchand Jain son of Shikharchand Jain. Inder Kumar Jain, another son of Shikharchand Jain had only purchased part of the tenanted premises and ownership on larger part still remains with the plaintiffs/appellants. It is not the case that Champabai Jain and Puranchand Jain are enjoying the possession in separate portions, their possession as tenant continues. The status of Inder Kumar Jain also continues to be a tenant and he cannot be said to be in possession as coowner, he is in possession with other legal heirs of the tenant. Thus, there is no merger of tenancy into his rights of coownership. In case, it is held that Inder Kumar Jain also continues to be a tenant and he cannot be said to be in possession as coowner, that would also defeat the protection available under section 12 of the M.P. Accommodation Control Act. On facts which are essential for the decision, there is no dispute, it is purely a legal question whether tenancy comes to an end and it was not the question decided or even resorted to in the decision rendered in SA No. 813/95. Thus, remedy of the plaintiff is only to seek ejectment under M.P. AccommodationControl Act of Smt. Champabai and Puranchand Jain as tenancy had never been surrendered by Champabai Jain, Puranchand Jain and they have also not purchased the property, only part of the property has been purchased by Inder Kumar Jain, Inder Kumar continues to be the tenant. Ownership of larger part still remains with the plaintiffs and there is no other person in the body of coowners except Inder Kumar Jain along with the plaintiffs and the tenancy of Shikharchand Jain being heritable is enjoyed by his LRs and otherwise also as per section 111(d) of the TP Act it has not come to an end. In the previous decision, there is no finding recorded on this material aspect, consequently when status continues as tenant, obviously the recourse has to be for eviction under M.P. Accommodation Control Act by way of filing partition suit, tenants cannot be evicted in absence of ground under section 12 of the Act. The tenancy has been inherited by larger body of persons whereas purchase has been made by single person out of them, and even the tenancy of Inder Kumar has not merged into his coownership rights.
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38. Yet another submission has been raised by Sh. Ravish Agarwal, learned senior counsel that Division Bench of this Court in civil revision has taken a different view though leave to appeal has been granted and the appeal is pending before the Apex Court against the decision, it would be appropriate to refer the matter to a larger Bench. We would have referred the matter to a larger Bench, but for the availability of decision of Apex Court in Pramod Kumar Jaiswal and others vs. Bibi Husn Bano and others(supra) which clinches the issue and that section 111(d) of T.P. Act was not taken into consideration by Single Bench of this Court while deciding SA No. 813/95 and by Division Bench of this Court while deciding the Civil Revision No. 1676/01, moreover instant suit being based on fresh cause of action, we are not inclined to accept the submission to refer the case for decision to a larger Bench in view of availability of decision of Apex Court which is squarely applicable in the facts of the instant case to hold that defendants continue to be tenant, there is no determination of tenancy and they can be evicted in accordance with M.P. Accommodation Control Act.
39. In view of the aforesaid discussion, we reiterate that rule of res judicata cannot prevail in the instant case as tenancy continues apart from that present suit is based on question of title and fresh cause of action under Section 12(1) (f) of the Act. Moreover it is based on fresh cause of action for which decision on question of law cannot operate as res judicata and in the previous judgment rendered by this Court, relevant statutory provision and question of determination of tenancy was not gone into. Question is what is the status of the defendants as on today. In answer to the query made to Sh. Rqvish Agarwal, learned Senior counsel appearing for respondents simply stated that this is for the Court to determine. In our considered opinion, they are tenants, partition with one of tenants will not determine the tenancy in facts of case. The tenants cannot be denied protection under rent Act nor can be evicted except in accordance with M.P. Accommodation Control Act. No special law in derogation to decision of Apex Court in Pramod Kumar Jaiswal and others v. Bibi Husn Bano and others(supra) and statutory direction under Section 111(d) of TP Act by virtue of rule of res judicata can be mermitted to prevail between parties in view of fresh cause of action. Merely because one of cotenant Inder Kumar Jain purchased part of tenanted premises, the tenancy has not come to an end and this Court did not conclude in the previous decision that tenancy has come to an end due to purchase of part of tenanted property. The decision of Apex Court is binding precedent on question of law which was not decided by this Court in previous decisions. Even erroneous decision on question of law would not operate as res judicata cause of action being different. Rule of re judicata on facts of instant case cannot prevail.
16. In view of the above pronouncements, and in the facts and circumstances of the present case, I am of the considered opinion that that the subsequent fact of selling of the undivided share of 50 % by the original plaintiffs no. 3 & 4, cannot frustrate the rights of the other plaintiffs and therefore, I do not find any merit in the present application.
The same is, hereby, dismissed, being devoid of any merit, subject to imposition of cost of Rs. 5,000/ on the applicants. It is ordered accordingly.
Announced in the open court on this 5th day of September, 2011.
BRIJESH KUMAR GARG ADDL. DISTRICT JUDGE08 CENTRAL, DELHI.
SUIT NO. 243/2011
5.9.2011
Present: None for the plaintiff.
Sh. Amit Punj Adv. and Sh. Sumant Dey Adv. for
defendant no. 1 & 2.
None for remaining defendants.
Separate order on the application under Order 7 Rule 11 CPC, of defendant no. 1 & 2 has been passed, whereby, the said application has been dismissed, subject to imposition of cost of Rs. 5,000/. Adjourned for payment of cost by the defendant no. 1 & 2 and for arguments on the application under Order 12 Rule 6 CPC of the plaintiff on 24.9.2011.
BRIJESH KUMAR GARG ADJ08, CENTRAL, DELHI/05.09.2011