Jahuri Sah & Ors Vs. Dwarka Prasad
Jhunjhunwala & Ors  INSC 114 (27 April 1966)
27/04/1966 MUDHOLKAR, J.R.
CITATION: 1967 AIR 109 1966 SCR 280
Bihar Buildings (Lease, Rent and Eviction)
Control Act 1947 (Bihar Act 3 of 1947)-Co-owner of house agreeing to Pay
compensation to other co-owner for occupation of houseRelationship of tenant
and landlord whether arises-Act whether applicable-Agreement to pay
compensation whether enforceable.
Adoption-Existence of deed of adoption
admitted-Oral evidence whether barred.
Two Hindu undivided families one of them
being represented by the appellants and the other by the respondents were coowners
of a house which was Purchased by them jointly. The appellants occupied a major
portion of the house on an agreed compensation being payable by them to the
respondents in respect of the latter's share occupied by them. On the
compensation not being paid as agreed, the respondents filed a suit for its
recovery, as well as for partition. In the plaint one S was mentioned as having
been adopted out of the plaintiff family and for that reason he was not
The appellants resisted the suit on the
grounds that: (i) S had not been impleaded although a co-owner, (ii) the suit
was barred by the Bihar Building (Lease, Rent and Eviction) Control Act, 1947
(Bihar Act 3 of 1947), and (iii) the contract for payment of compensation was
not enforceable as there was no ouster of the plaintiffs by the respondents.
The trial court decided in favour of the
appellants but the High Court held against them. They came to this Court by
HELD: (i) The suit was not incompetent
because S was not made a party thereto. The fact of adoption was stated in the
plaint and had not been specifically denied by the appellants in their written
statements. No specific issue on the question of adoption was raised and it
could not be therefore argued that S's adoption had not been established.
[284 A-B, F] Oral evidence of the fact of
adoption did not become inadmissible merely because the existence of a deed of
adoption was admitted. A deed of adoption merely records the fact that an
adoption had taken place and nothing more.
Such a deed cannot be likened to a document
which by its sheer force brings a transaction into existence. [284 D-E] (ii)
The mere fact that the defendants agreed to pay compensation to the Plaintiffs
for their occupation of the plaintiff's share would not bring into existence a
relationship of landlord and tenant. By this agreement the parties never
intended to Constitute a relationship of landlord and tenant between the
defendants and their coowners. Bihar Act 3 of 1947 was therefore inapplicable
and the suit could not be said to be barred under its provisions, [285 C] 281
(iii) Co-owners are legally competent to come to any kind of agreement for the
enjoyment of their undivided property and are free to lay down any terms
covering the enjoyment of the property. Ouster of a co-owner is not a sine qua
non for enabling him to claim compensation from the co-owner who is in
occupation and enjoyment of common property. [285 E-F]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 193 of 1964.
Appeal from the judgment and decree dated May
13, 1960 of the Patna High Court in Appeal from Original Decree No. 132 of 1955
and order dated February 15, 1962 in M. J. C. No. 2 of 196 1.
Sarjoo Prasad, S. C. Sinha and B. P. Jha, for
S. T. Desai and R. C. Prasad, for the
The Judgment of the Court was delivered by
Mudholkar, J. This is an appeal by certificate from a judgment of the Patna
High Court reversing that of the trial court dismissing the plaintiffs' suit
for partition and separate possession of their half share in a house and for
payment of compensation from May 2, 1947 to September 11, 1951 at the rate of
Rs. 200/p.m. with interest and for payment of compensation at the same rate
from the date of suit till the recovery of possession of their, share in the
The facts which are not disputed before us
are these: The property in dispute which is situate within the limits of the
municipality of Bhagalpur was purchased jointly by five persons, Juri Mal,
Gajanand, Ramasahai Sah, Jahuri Sah and Ramgali Sah. The first two of these are
father and son (and were members of a joint Hindu family). Both of them are
dead. Plaintiffs 1 to 4 are the sons and plaintiff 6 is the widow of Gajanand
and plaintiff No. 5 is the widow of Jurimal. Jurimal, Gajanand (constituted a
joint Hindu family) and plaintiffs 1 to 4 constituted a joint Hindu family.
Ramsahai, Jahauri Sah and Ramgali were brothers and were members of a joint
Hindu family. Jahuri Sah is defendant No. and Ramgali Sah is defendant No. 2.
They, along with the remaining defendants, are members of a joint Hindu family
of which Jahauri Sah is the karta.
The property in question was purchased by the
two joint families, each family having half interest therein. The date of the
transaction was June 26, 1942. At the time of the purchase of the property it
was in the possession of Mohanlal Marwari as a tenant. He was evicted there from
by a decree of the court and hereafter it was let out to Government, the
compensation having been settled at Rs. 100/per mensem. The Government vacated
he house after some time where after the defendants occupied the 120(a) 282
house excepting a portion thereof which was in the occupation of Isri Sah and
Shib Charan Sah as tenants paying a monthly rent of Rs. 30 Half of this rent
was being realised by each family.
According to the plaintiffs when the
defendants entered into possession of the property they agreed to pay Rs. 200/per
mensem as compensation to the plaintiffs' family with respect to their half
share in the property. They, however, did not pay any compensation to the
plaintiffs despite the agreement.
On these allegations the plaintiffs
instituted their suit.
In the plaint they stated that Gajanand had
another son named Shankarlal but he was given in adoption to Sreelal, P. W. 6
and he was, therefore, not joined as party to the suit.
The defendants denied the claim and -stated
that the suit was barred by the provisions of the Bihar Buildings (Lease, Rent
and Eviction) Control Act, 1947 (Bihar Act 3 of 1947) (hereafter referred to as
the Act) as well' as by the rule of estopping. They also raised the plea that
under the contract entered into between the two families Rs. 501p.m.
was payable as compensation and not Rs. 200/p.m.
as alleged by the plaintiffs. According to them the-suit was barred by the rule
of estoppel. They contended that the claim for compensation for a period prior
to the expiry of 3 years from the date of suit was barred by time. They also
raised some other contentions in the written statement but it is unnecessary to
refer to them inasmuch as we must confine ourselves to the points urged before
us by Mr. Sarjoo Prasad on their behalf. The points are: (1) that the suit for
partition and separate possession was not maintainable-, and (2) that the
contract under which the plaintiffs claimed compensation is not enforceable.
The, suit is said to be not maintainable because (a) one of the co-owners of
the property was not joined as a party to the suit and, (b) also because it was
barred by the Act. The contract for payment of compensation was said to be not.
enforceable as there was no ouster of the
plaintiffs by the defendants.
The trial court held that the provisions of
the Act applied and by virtue of those provisions the plaintiffs were not
entitled to a decree for eviction of the defendants nor were they entitled to a
decree for, compensation and that the adoption of Shankarlal not having been
proved the suit as constituted was not maintainable.
On this point, the High Court arrived at
different conclusions. The view, taken by the High Court was that the
provisions of the Act did not apply to this cage, that the defendants not
having specifically denied the fact of adoption and no issues thereon having
been raised the trial court erred in holding that the adoption was not proved
and that non-joinder of Shankarlal was not an impediment to the institution of
the suit. Further 283 according to the High Court the contract to pay
compensation at the rate of Rs. 200/p.m. was duly established and that as it
was competent to a civil court to enforce the contract the suit for recovery of
arrears of compensation was maintainable. The High Court accepted the
defendants' contention that the claim for arrears must be limited to a period
of three years prior to the institution of the suit.
It allowed interest on the arrears at 6% p.a.
and decreed the claim of the plaintiffs for partition and for arrears of
compensation. The plaintiffs then moved the High Court under s. 151 read with
O.XX, r. 18, Code of Civil Procedure for granting them appropriate relief with
respect to their claim for compensation, for use and occupation of the house
from the date of suit till delivery of possession of their share after passing
the final decree. The High Court allowed this application and directed that the
plaintiffs shall also be entitled to compensation from the date of institution
of the suit until recovery of physical possession of their share after
partition or until the expiry of three years from the date of its decree,
whichever event first occurs. It also made an appropriate order regarding
Aggrieved by this decree of the High Court as
amended by its subsequent order upon the plaintiffs' application under s.
151 read with O.XX, r. 18, C.P.C. the
defendants have come up to this Court.
In our opinion the High Court was right in
holding that the Act is inapplicable to this case. The plaintiffs and
defendants were admittedly co-owners of the property. As the property had not
been partitioned it was open to either or both the parties to occupy it. The
defendants occupied the property except a small portion which was in possession
of the tenants. The plaintiffs acquiesced in it because of an agreement between
the parties that the defendants would pay Rs. 200/p.m. as compensation to them.
The defendants did not dispute that there was an agreement about payment of
compensation between the parties but their plea was that the amount agreed to
was Rs. 501p.m. and not Rs. 200/p.m.
Their contention in this behalf was rejected
by the High Court which accepted the plaintiffs' contention that the amount was
Rs. 200/p.m. This part of the High Court's judgment is not challenged before us
by Mr. Sarjoo Prasad.
He, however, challenged the finding of the
High Court that the claim to compensation was enforceable. But before we deal
with this matter it would be appropriate to deal with the reasons given by him
in support of the contention that the suit was not maintainable. He reiterated
the argument urged before the trial court based upon the non-joinder of
Shankarlal as a party to the suit. According to him, as Shankarlal's adoption
his not been established by the plaintiffs he was also a co-owner of the
property 284 and his non-joinder as a party to the suit rendered the suit
incompetent. The High Court has pointed out that the plaintiffs have clearly
stated in para 1 of the plaint that Shankarlal had been, given in adoption to
Sreelal. In neither of the two written statements filed on behalf of the
defendants has this assertion of fact by the plaintiffs been specifically
denied. Instead, What is stated in both these written statements is that the
defendants have no knowledge of the allegations made in para 1 of the plaint.
Bearing in mind that O.VIII, r. 5, C.P.C. provides that every allegation of
fact in the plaint, if not denied specifically or by necessary implication or
stated to be not admitted in the pleading of the defendant shall be taken to be
admitted, to say that a defendant has no knowledge of a fact pleaded by the
plaintiff is not tantamount to a denial of the existence of that fact, not even
an implied denial. No specific issue on the question of adoption was,
therefore, raised. In the circumstances the High Court was right in saying that
there was no occasion for the parties to lead any evidence on the point.
However, Sreelal who was examined as a witness on behalf of the plaintiffs has
spoken about the fact of adoption and his statement can at least be regarded as
prima facie evidence of adoption. It is true that he admits the existence of a
deed of adoption and of its non-production in the court. This admission,
however, would not render oral evidence inadmissible because it is not by
virtue of a deed of adoption that a change of status of a person can be
effected. A deed of adoption merely records the fact that an adoption had taken
place and nothing more. Such a deed cannot be likened to a document which by
its sheer force brings a transaction into existence. It is no more than a piece
of evidence and the failure of a party to produce such a document in a suit
does not render oral evidence in proof of adoption inadmissible.
We, therefore, agree with the High Court that
the plaintiffs' suit for partition of their half share in the property was not
incompetent because Shankarlal was not made a party thereto.
We will now deal with the other ground urged
by Mr. Sarjoo Prasad in support of his contention that the suit is not
maintainable. Under sub-s. (2) of s. II of the Act as it stood on the date of
the suit a claim for eviction of a tenant or a claim for recovery of possession
of a building and claim for rent thereof had to be made before the Rent
Controller alone and consequently the jurisdiction of the civil court for the
enforcement of such claims was ousted.
But, for the provisions of this section to
apply, the relationship between the plaintiff and the defendant should be that
of a landlord and tenant. If they are co-owners of the property and the
property is held by them as tenants-in common no question of relationship of
landlord and tenant comes into being as between them. The common case of the
parties is that they are in fact co-owners of the property and the respective
285 shares of the two families have not been demarcated. They, therefore,
continue to be tenants in common. It is true that the entire property (save a
small portion which was in possession of tenants) is in the actual occupation
of the defendants which means that they are in occupation not only of their
share in the property but also of the plaintiffs' share. That fact, however,
would not make them tenants of the plaintiffs. Under the law each
tenantin-common is entitled to the possession of the entire property, that is,
to every part of it though its right to possession is limited to the extent of
the share in the property. The mere fact that the defendants agreed to pay
compensation to the plaintiffs for their occupation of the entire property
(ignoring the portion in possession of the tenants) would not bring into
existence a relationship of landlord and tenant. By this agreement, the parties
never intended to constitute a relationship of landlord and tenant between the
defendants and their co-owners. The provisions of the Act are, therefore,
inapplicable. The second ground urged by Mr. Sarjoo Prasad, therefore, fails.
What we have to consider then is whether the
contract for payment of compensation is not enforceable. It is no doubt true
that under the law every co-owner of undivided property is entitled to enjoy
the whole of the property and is not liable to pay compensation to the other
co-owners who have not chosen to enjoy the property. It is also true that
liability to pay compensation arises against a co-owner who deliberately
excludes the other co-.owners from the enjoyment of the property. It does not,
however, follow that the liability to pay compensation arises only in such a
case and no other. Co-owners are legally competent to come to any kind of
arrangement for the enjoyment of their undivided property and are free to lay
down any terms concerning the enjoyment of the property. There is no principle
of law which would exclude them from providing in the agreement that those of
them as are in actual occupation and enjoyment of the property shall pay to the
other coowners compensation. No authority was cited by learned counsel in
support of his contention that ouster of a coowner is a sine qua non for
enabling him to claim compensation from the co-owner who is in occupation and
enjoyment of common property. We, therefore, reject the contention.
In the circumstances, therefore, we dismiss
the appeal with costs.