Punjab-Haryana High Court
Yashpal vs Ram Bilas And Ors. on 4 October, 2002
Equivalent citations: (2003)133PLR804, 2003 A I H C 387, (2003) 1 PUN LR 804, (2003) 1 CIVILCOURTC 175, 2003 HRR 140, (2003) 1 RENCR 72, (2003) 3 CURCC 406
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal
JUDGMENT Satish Kumar Mittal, J.
1. This judgment will dispose of three Regular Second Appeals bearing Nos. 502 of 1981, 613 and 837 of 1981 as they are arising from the judgment passed by the learned Additional District Judge, Jind dated 24.11.1980, vide which he has dismissed two appeals one cross-objection, confirming the judgment and decree passed by the trial Court.
2. The brief facts of the case are that shop in dispute was originally owned by one Ram Gopal. It was inherited by his two sons, namely, Jai Narain and Chet Ram in equal shares. The shop in dispute, which is double storey building is 90' in length and 18' width, and is situated in Jind Mandi. The front portion of the shop opens in the Mandi and the rear portion of the same opens towards the back of the Mandi. In the year 1956, Chet Ram, who was co-sharer to the extent of half share, let out the front portion of the shop to M/s Karta Ram Rameshwar Dass without the consent and authority of the other co-sharer, namely, Jai Narain. Subsequently, after the death of Chet Ram, his sons and daughters sold their half share in the shop in dispute to Yash Pal son of Rameshwar Dass (defendant No. 1) vide registered sale-deed dated 20.8.1975. On 26.9.1975, Jai Narain (plaintiff) filed the suit for partition of the aforesaid shop in which he had impleaded Yash Pal as defendant No. 1 as well as the firm M/s Karta Ram Rameshwar Dass as defendant No. 2. In the said suit for partition, there was not dispute about the share of the parties and a preliminary decree was passed by the Sub Judge, 1st Class, Jind vide its judgment dated 19.11.1976 for partition of the shop in dispute in favour of the plaintiff and against defendant No. 1. The share of the plaintiff in the suit property was declared to be half and defendant No. 1 was of another half, and Mr. Chattar Singh, Advocate, was appointed as Local Commissioner to report about the mode of partition.
3. After passing of the preliminary decree, as aforesaid, the Local Commissioner submitted his report suggesting that the shop in dispute should be divided horizontally, that is to say in such a way that one party would get the front portion opening in the Mandi and the other would get the back portion. This mode suggested by the Local Commissioner was not acceptable to the plaintiff-Jai Narain (who died during the pendency of the suit and his legal representatives were impleaded). He filed objections against his report. His contention was that shop in dispute should be partitioned longitudinally by constructing a wall through and through and only that partition will be a just partition on between the parties and partitioning the shop horizontally by giving front portion to one party and the back portion to another party, will be unjust and unequal, as the front portion of the shop which opens in the Mandi, is the only valuable portion of the shop. Therefore, both the parties should be given equal share of the front portion of the shop in dispute. Defendant No. 2, who was the tenant of the Chet Ram in the front portion of the sop in dispute, raised a contention that he is in occupation of the front portion of the shop as a tenant and tenancy created by a co-sharer is binding on the other co-sharer and he can be evicted only under the provisions of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (hereinafter referred to as 'the Rent Act') and no wall can be raised dividing his tenanted premises into two portions. Defendant No. 1 took the stand that the shop in dispute should be given to another party and difference between the value of the front and back portion of the shop should be assessed and the person who gets the back portion can be compensated by the difference of value. It is pertinent to mention here that defendant No. 1-Yash Pal is the son of Rameshwar Dass son of Karta Ram. Therefore, defendant No. 1 is the son of the sole proprietor of the firm i.e., defendant No. 2.
4. The trial Court vide its judgment and decree dated 22.12.1979 decreed the suit of the plaintiff and it was held that the shop in dispute shall be partitioned equally longitudinally by constructing a middle wall through and through and the defendant No. 2-M/s Karta Ram Rameshwar Dass shall continue to occupy the portion of the shop unless evicted in due course of law. It was held that the front portion of the shop is more valuable than the rear portion. The payment of difference of value cannot compensate the loss of the party which gets the rear portion of the shop. The report of Local Commissioner for partition of the shop horizontally cannot be accepted as it will result into unequal and unjust partition. The contention of defendant No. 1 that partition of the shop in dispute longitudinally will make the building unsafe and will result into demolition of the same, was not accepted. It was held that the only way to do the equal and unjust partition among the parties is to partition the shop longitudinally by erecting a wall in the middle of the shop through and through. Regarding defendant No. 2, it was held that though this second defendant did not take up a specific plea that his tenancy was under both the owners, yet in view of the wide nature of the definition of 'landlord' given under Section 2(c) of the Act, the plaintiff would also be deemed to be a landlord of the shop in question which was given on rent to defendant No. 2 by other co-sharers and he cannot be evicted from the portion of the shop fallen into the share of the plaintiff except by way of an ejectment application to be filed before the Rent Controller under the provisions of the Rent Act.
5. Against the aforesaid judgment and decree passed by the trial Court, two appeals were filed, one by the legal representatives of Jai Narain and second by defendant No. 1-Yash Pal. The firm M/s Karta Ram Rameshwar Dass filed cross objection in the appeal filed by the legal representatives of Jai Narain. These appeals as well as the cross-objection were dismissed by the learned Additional District Judge by a common judgment. Aggrieved against the aforesaid judgment, the following three appeals have been filed.
6. (1) R.S.A. No. 502 of 1981 have been filed by Yash Pal (defendant No. 1). His contention is that the shop in dispute should have been partitioned horizontally by keeping in view the respective possession of the parties and that its the mode which was suggested by the Local Commissioner, namely, Mr. Chattar Singh. The partition of the land longitudinally is not only impracticable, impossible and unjust but it will weaken the structure of the shop and may result into demolition of the same.
7. (2) R.S.A. No. 613 of 1981 have been filed by the firm M/s Karta Ram Rameshwar Dass. Its contention is that the firm is in possession of the front portion of the shop in dispute as a tenant of co-sharer, namely, Chet Ram whose share has been purchased by Yash Pal. His tenancy is protected under the provisions of the Rent Act and under the provisions of the said Act, there cannot be a physical partition of the tenanted premises as its tenancy is indivisible in nature. Therefore, no wall can be erected through its tenanted premises.
8. (3) R.S.A. No. 837 of 1981 have been filed by the legal representatives of Jai Narain, who was plaintiff in the suit. Their contention is that the firm M/s Karta Ram Rameshwar Dass took the front portion of the shop in rent from Chet Ram, who was co-sharer of the shop in dispute to the extent of half share. The said tenancy was created without the written or implied consent of the other co-sharer, namely, Jai Narain and he was not bound by the said tenancy created by the other co-sharer, namely, Chet Ram. Subsequently, defendant-Yash Pal who is the son of the sole proprietor of the firm, namely M/s Karta Ram Rameshwar Dass purchased the share of Chet Ram from his legal representatives. The contention of the appellants in this appeal is that a tenant inducted by a co-sharer without the consent of the other co-sharer ceased to be a tenant qua the co-sharer on partition and the Courts below have committed grave illegality while holding that the firm is entitled to the protection under the Rent Act and it may not be evicted from the portion of the shop which fallen in their share except by filing an ejectment petition on the grounds mentioned in the Rent Act. By doing so, defendant No. 2, who was not their tenant, has been imposed upon them as tenant, which is not permissible under the law.
9. I have heard the respective arguments of the learned counsel for the parties in all the aforesaid three appeals and have gone through the judgments as well as record of the Courts below.
10. Shri S.D. Sharma, learned Senior counsel for the appellant in R.S.A. No. 502 of 1981 has submitted that partition of the shop in dispute longitudinally will diminish the entire value of the shop which is only 18' wide. He submitted that the Courts below should have accepted the report of the Local Commissioner, who had proposed that the shop should be divided horizontally by giving compensation to the person who gets the rear portion of the shop. He further submitted that partition ordered by the Courts below is totally unjust and impracticable and it will cause manifest injustice to the parties. On the other hand, learned counsel for the plaintiff submitted that the partition effected by the Courts below is perfectly valid and just keeping in view the various facts and circumstances taking into consideration by the Courts below. He further submitted that a firm finding of fact has been recorded as far as the mode of partition is concerned and that finding is a pure finding of the facts and the same cannot be interfered in this Regular Second Appeal.
11. I have considered the arguments raised by the learned counsel for the parties and am of the opinion that the mode of partition of the shop in dispute, as ordered by the Courts below, is perfectly valid and there is no ground to interfere with this finding of facts recorded by the Courts below. It has been found by both the Courts below as a matter of fact that the front portion of the shop is having more value than the rear portion. It has also been found that in Mandi where the shop in dispute is situated, such kind of partition longitudinally has been effected in various cases. It has also been found that as a fact that partition of the shop in dispute longitudinally will neither demolish the shop nor it will diminish the value of the same. It has further been found that in case the shop is divided into two portions longitudinally, then both the portions will have the staircase, one from the front side and another from the back side, as two staircases are existing in the shop to go upstairs on the first floor. It has also been held that proposal made by the Local Commissioner is not acceptable as the same will not be an equal partition of the property. These findings of the Courts below are findings of facts. Mr. S.D. Sharma, learned counsel, then submitted that the following questions of law are involved in the appeal:-
(i) Whether the judgment and decree of both the Courts below are not executable because of contradictory finding on issues No. 4 and 5?
(ii) Whether the report of the Local Commissioner can be ignored without setting it aside?
12. I have considered the submissions made by the learned senior counsel for the appellant in light of the discussion made above. I am of the opinion that the aforesaid questions are not the questions of law but they are the questions of facts. In view of the decision of the Hon'ble Supreme Court in Pukeerappa Rai v. Seethamma Hengsu 'D' by L.R.s and Ors.,' J.T. 2002(5) S.C. 537, this Court cannot interfere in the pure findings of facts recorded by the Courts below, even if they are grossly erroneous. Therefore, I find no force in the appeal by defendant No. 1 (Yash Pal) and the same is hereby dismissed.
13. Now, the other two appeals R.S.A. No. 613 of 1981 and 837 of 1981 are being considered together. In these appeals, Sh. D.D. Gupta, learned counsel representing the LRs of plaintiff-Jai Narain submitted that defendant No. 2 was inducted as a tenant by the co-sharer of half share without the consent and authority of their predecessor, Jai Narain. They are not bound by the said tenancy created by Chet Ram, whose share has been purchased by defendant No. 1. They contended that the law is settled one that when joint property is leased out by one of the co-sharer and the other co-sharer obtains a decree for partition, the tenant will not be entitled to any protection under the Rent Act and he will restrict himself to the portion got in partition by his landlord. The tenant cannot ipso, facto become a tenant of the other co-sharer. On the other hand, Shri M.L. Sarin, learned senior counsel for defendant No. 2 submitted that a joint owner can induct a tenant on the whole or part of the premises in his possession. A tenant of a co-sharer will become the tenant of the other co-sharer. He submitted that a joint owner can induct a tenant on the whole or part of the premises in his possession. A tenant of a co-sharer will become the tenant of the other co-sharer. He submitted that under the rent Act, the 'landlord' and the 'tenant' have been defined. The definition of 'landlord' under the said Act means any person for the time being entitled to receive rent in respect of any building whether on his own account or on behalf of any other person. Therefore, a tenant inducted by the co-sharer will become the tenant of other co-sharer as he can receive the rent from himself or on behalf of other person. Therefore, a tenant inducted by a co-sharer is entitled to the protection of the Rent Act. Such tenant can not be ejected from the premises even if other co-sharer gets the joint property partitioned. He submitted that since the tenant so inducted is protected under the provisions of the Rent Act, therefore, he cannot be ejected from the part of the tenanted premises by the Civil Court, even in a suit for partition. He submitted that the following questions of law are arising in the appeal filed by defendant No. 2:-
(1) Whether the tenancy of a building in an urban area to which the Haryana Urban Control of Rent and Eviction Act applies is divisible?
(2) Whether a tenant can be ordered to be evicted from a building situated in an Urban Area to which the Haryana Rent Act applies, by a Civil Court?
(3) Whether a co-sharer is a landlord of a tenant inducted in a building by another co-owner?
(4) Whether the construction of a wall dividing the tenancy portion will amount to evicting the tenant from the part of his tenancy?
14. I have considered the arguments raised by the learned counsel for both the parties. From the arguments and pleadings of the parties, one substantial question of law is arising that whether a tenant of a co-sharer does ipso-facto become a tenant of the other co-sharer when he was inducted without the consent and authority of the other co-sharer. If the answer to these question is in the negative, then the second question will arise that in case the other co-sharer gets the property partitioned and in that partition he gets some portion of the tenanted premises, whether the tenant is bound by the result of partition and he has to be evicted from that portion.
15. In the present case, undisputedly defendant No. 2 was inducted as a tenant in the front portion by Chet Ram, who was having only half share in the shop in question. The said tenancy was created without the written or implied consent of the other co-sharer, namely Jai Narain. It is also not the case of defendant No. 2 that the said tenancy was created by Chet Ram on behalf of Jai Narain also. It is also not the case of defendant No. 2 that Jai Narain shared the rent paid by him or he ever acquiesced in any manner to the tenancy created by Chet Ram. In view of these facts, it cannot be said that defendant No. 2 had become ipso-facto a tenant of Jai Narain. A co-sharer has interest in the whole joint property and also in its every parcel, and his possession is, in the eyes of law, possession of all co-sharers even if all but one are actually out of possession. A co-sharer is also entitled to rent out his share and put the tenant in possession of the portion under his possession, but a co-sharer has no right to bind by his transfer or leasing out of the property to a tenant to the other co-sharer. Such transfer or leasing out the property shall always be subject or adjustment at the time of partition. If in partition, a portion of the tenanted premises falls in the share of another co-sharer, who neither inducted the tenant nor gave any consent to induct the tenant, he will always be entitled to get the possession of the share fallen to his share in partition. It is the settled law that a person, to whom a parcel of land has been allotted by a decree for partition of a civil Court, does not take it subject to a permanent lease granted by his former co-owners without his concurrence when the land was joint property of all the co-sharers. Learned counsel for the legal representatives of Jai Narain, relied upon decision of this Court report in Ram Saroop Sant Ram Agganval v. Chanan Singh Arjun Singh and Ors., (1964)66 P.L.R. 832, wherein it has been held as under:
"When land jointly owned, is leased out by one of the co-sharers, and the other co-sharer obtained a decree for partition, the tenant can be ejected in execution. The lessee cannot contend that he is the tenant of the whole land by virtue of the lease deed and is thus protected against ejectment. A tenant let on the land by one of the co-sharers does not ipso facto become a tenant of the other co-sharers. It is of course open to the other co-sharers to adopt the tenant let on the joint land by one of the co-sharers."
16. No decision to the contrary has been cited at bar by learned counsel for defendant No. 2 for the proposition that a tenant let on the property by one of the co-sharers of the joint property ipso facto becomes a tenant of the other co-sharers. Defendant No. 2 never took up the plea that though he had been brought upon the front portion of the shop by Chet Ram, he was accepted as tenant by the other co-sharer, namely Jai Narain, and that he acquiesced his being tenant of the joint property. Learned counsel for defendant No. 2 argued that if this proposition is accepted, then it will be easy for joint owners to get ejected the tenant lawfully inducted by one of the co-sharer by joining hands and by showing a sham partition between them or by filing a suit for partition and getting the same decreed on the basis of the consent. In my opinion, this apprehension of learned counsel for defendant No. 2 is without any basis. In the present case, it is not the case set up by defendant No. 2. He never pleaded such facts in the written statement. If in given circumstances, such facts are brought on record, the Court might take a different view and it can be held that the partition was not a bona fide partition. But by no stretch of imagination, a tenant settled by one of the co-sharers on joint property without the consent of other co-sharer can become tenant of other co-sharer. It is open to the joint owners either to authorise one of the co-sharers to settle a tenant on the joint property or to adopt a tenant settled by one of the co-sharers as their tenant. These are questions of fact and have to be proved in each individual case. So far as the present case is concerned, it is not the case of defendant No. 2 that he had been settled on the property as a tenant with the concurrence of the other co-sharer, namely Jai Narain, or that he has acquiesced his tenancy of the joint property.
17. Learned senior counsel for defendant No. 2 also argued that the tenancy of defendant No. 2 is indivisible and the same cannot be partitioned in a suit for partition, filed by one of the co-sharers. He contended that the civil Court has no jurisdiction to dispossess a tenant even in a suit for partition. He submitted that a tenant, though he may be inducted by one of the co-sharers without the consent of other co-sharer in the joint property, can be ejected only by filing an ejectment application under the Rent Act. He also submitted that even a landlord cannot get partial ejectment from the tenanted premises when the tenancy is indivisible. He referred to the definition of 'landlord' in Section 2(c) of the Act, according to which a co-sharer of a joint property will deemed to be the landlord of the tenant inducted by him in a portion of the joint property. As such, contract of tenancy is single and indivisible and an application of ejectment of the tenant is not maintainable. In support of his contention, he relied upon the following decisions:
(i) Miss S. Sunyal v. Gian Chand, A.I.R. 1968 S.C. 438.
(ii) Panna Lal v. Devjil, 1976 Rent Control Journal 817:1978(1) R.C.R. (Rent) 530 (P&H).
(iii) Shri Krishan Dev v. Babu Nand Kiskore, (1970)72 P.L.R. 1013.
(iv) Sk. Sattar Sk. Mohd. Choudhari v. Gundappti Amabadas Bukate, A.I.R. 1997 Supreme Court 988 and
(v) Habibunnisa Begum and Ors. v. G. Doraikannu Chettiar and Ors., J.T. 1999(9) S.C. 286.
18. I have gone through the aforesaid judgments cited by learned senior counsel for defendant No. 2. These judgments are not relevant for the adjudication of the present controversy, except the decision in Sk. Sattar Sk. Mohd Choudhari's case (supra). The ratio of the said judgment itself goes against defendant No. 2. in that case, a shop was inherited by four brothers from their father. The eldest brother was managing the property and in the year i954, the said shop was let out by the elder brother to the respondent when the younger brother was minor. Subsequently, partition took place among the brothers and a portion of the shop fell to the share of younger brother, who was appellant before the Hon'ble Supreme Court. In spite of the information given by the younger brother to the tenant, he did not pay the rent to him and consequently, his tenancy was terminated, which led to filing of ejectment petition against the respondent. The respondent opposed the said ejectment application on the plea that the shop having been let out to him on behalf of several brothers, he could not be legally evicted at the instance of one of them, as tenancy was indivisible. He pleaded that the suit for partition was not maintainable. Initially, suit of the appellant was decreed by both the Courts below but the High Court of Bombay set aside the judgments passed by the Courts below. While reversing the judgment of the Bombay High Court, the Hon'ble Supreme Court held as under:-
"As pointed out earlier, a co-sharer cannot initiate action for eviction of the tenant from the portion' of the tenanted accommodation nor can he sue for his part of the rent. The tenancy cannot be split up either in estate or in rent or any other obligation by unilateral act of one of the co-owners. If, however, all the co-owners or the co-lessors agree among themselves and split by partition the demised property by metes and bounds and come to have definite, positive and identifiable shares in that property, they become separate individual owners of each severed portion and can deal with that portion as also the tenant thereof as individual owner/lessor. The right of joint lessors contemplated by Section 109 comes to be possessed by each of them separately and independently. There is no right in the tenant to prevent the joint owners or co-lessors from partitioning the tenanted accommodation among themselves. Whether the premises, which is in occupation of a tenant, shall be retained jointly by all the lessors or they would partition it among themselves, is the exclusive right of the lessors to which no objection can be taken by the tenant, particularly where the tenant knew from the very beginning that the property was jointly owned by several persons and that, even if he was being dealt with by only one of them on behalf of the whole body of the lessors, he cannot object to the transfer of any portion of the property in favour of a third person by one of the owners or to the partition of the property. It will, however, be open to the tenant to show that the partition was not bona fide and was a sham transaction to overcome the rigours of Rent Control laws which protected eviction of tenants except on specified grounds set out in the relevant statute."
19. From the aforesaid judgment, it is clear that there is no right in the tenant to prevent the joint owners from partitioning the tenanted accommodation among themselves. He cannot object to the transfer of any portion of the property in favour of the other co-sharer in partition. However, it will be open to the tenant to say that the partition was not bona fide and was a sham transaction to overcome the rigours of Rent Control laws which protect the eviction of tenants except on specified grounds set out in the relevant statute. This is not the stand taken by defendant No. 2 in the present case. A co-sharer of a joint property cannot transfer a better title or confer a better right upon any person or the tenant than he himself has. He cannot induct a tenant on the whole property without the consent or authority of other co-sharers to an extent that even in partition-such tenant will not be ejected from the portion falling into the share of other co- sharers. It is well settled that once co-sharer holding possession of certain properly let out a portion of the joint property to third person, such letting out may not be illegal, invalid or void, so as to entitle the other co-owners to obtain khas possession of the joint property by eviction of tenant. The other co-owner can sue for joint possession and if on partition, the portion settled with tenant is allotted to other co-sharers, they will be entitled to khas possession of that portion by ejecting the tenant.
20. In view of the aforesaid discussion, it cannot be said that defendant No. 2 cannot be asked to vacate portion of the shop consequent upon its partition between the co-
sharers. The finding on issue No. 4 recorded by the Courts below is thus liable to be set aside and thus issue is decided in favour of the plaintiffs. R.S.A. No. 613 of 1981, filed by defendant No. 2, is accordingly dismissed and R.S.A. No. 837 of 1981, filed by the legal representatives of Jai Narain is hereby allowed. The judgments and decrees passed by the Courts below are modified and a decree for vacant possession of the portion of the property failing to the share of the plaintiffs is also passed in their favour with no order as to costs.