India Umbrella Manufacturing Co. & Ors Vs. Bhagabandei Agarwalla  Insc
14 (5 January 2004)
& Ashok Bhan
C.A.No.5358 of 1996) R.C. Lahoti, J.
suit property consists of a house and outhouses bearing Municipal No. 47 Ward
No.5 (new Ward No.20), S.R.C.B.
Road, Fancy Bazaar, Guwahati.
The house property is situated over a piece of land which bears patta Nos. 1382
and 1064. The entire property including the land and the building standing
thereon was owned by late Ladi Aggrawalini. It was in possession of two
tenants. On 24.8.1957, late Ladi Aggrawalini made a gift of the suit property
in favour of her two daughters namely Bhagabandei and Buchi Devi. The tenants
were informed and they attorned in favour of the donee sisters. On 1.6.1967,
fresh deeds of lease came to be executed between the two co-landlords jointly
and the two tenants individually. M/s. India Umbrella Manufacturing Company
(the appellant in Civil Appeal No. 5357 of 1996) agreed to continue to hold the
tenancy premises on a monthly rent of Rs.1200/- undertaking to pay Rs.600/-
each to the two co-owners. M/s. Bharat Stores & Agencies through its
proprietor Tulsiram Swami (who and whose alleged sub-tenants are the appellants
in Civil Appeal No. 5358 of 1996) agreed to continue in possession of the
tenancy premises on a monthly rent of Rs.500/- undertaking to pay Rs.250/- to
each of the two co-owners separately. Thus, though the property was undivided
and jointly owned by the two sisters, the rent agreed upon by the two tenants
was by consent apportioned in equal shares between the two co-owner landladies.
year 1971-72, the two co-owners namely Bhagabandei and Buchi Devi initiated
proceedings for partition of land in Case No.63 of 1971-72 under the local law
governing the partition of land holdings.
to the order passed in the Partition Case, Partition Patta No.1382 with Dag
Nos. 2435, 2436, 2437, 2438, 2439, 2400 and 2484 was issued in the name of Bhagabandei
and Partition Patta No. 1064 with Dag Nos. 2327, 2379, 2339, 2333, 2386 and
2387 was issued in the name of Buchi Devi.
land was thus partitioned. The two sisters did not consider it necessary to
have the structure of house standing over the land also partitioned by metes
and bounds inasmuch as they had mutually agreed to demolish the superstructure
and then to construct their separate houses on their respective pieces of land
which had fallen to their respective shares pursuant to the land partition
extent of what has been stated hereinabove the facts are not disputed. The
co-owner and co-landlady sisters joined together in filing suits for ejectment
of the two tenants. The two landladies pleaded that they did not have any other
house of their own and on being vacated by the tenants the present structure
was to be demolished and on reconstruction used for their own occupation. The
tenants were alleged to have defaulted in payment of rent and then fallen into
arrears. There was also allegation of creation of sub-tenancy. The trial Court
found the plaintiffs not entitled to the decree for eviction and directed the
suits to be dismissed vide judgment and decree dated 30.4.1981.
disheartened by the dismissal of the suit, Buchi Devi transferred, by
registered deed of sale dated 12.6.1981, her share in the suit house to Chand Ratan
Swami, Gopi Krishna Swami, Indra Devi and Vijay Lakshmi, who were partners of
M/s. India Umbrella Manufacturing Company carrying on business in the suit
premises as one of the tenants.
to the sale, Bhagabandei alone filed appeals laying challenge to the dismissal
of the suits. Buchi Devi, having lost her interest in preferring and
prosecuting the appeals, was impleaded as a proforma respondent.
purchasers of Buchi Devi's share in the suit property were also joined as
parties to the appeal. During the pendency of the appeal, on 5.7.82, the buyers
of the share of Buchi Devi filed an application in the appeal submitting that
they were not interested in the ejectment of the tenants so far as their share
in the property is concerned and prayed for the suit being dismissed. Another
application was filed by the tenant submitting that right to evict vests in the
co-landlords and as one of them had transferred away her rights and the
transferees were not interested in pursuing eviction, the appeal was
incompetent and hence liable to be dismissed. On 23.3.83, the learned District
Judge allowed the appeal by a common judgment in the two appeals arising out of
the two suits and directed decrees for eviction to be passed holding the
availability of all the three grounds for ejectment in favour of the appellant
namely bona fide need, default in payment of rent and subletting of the
premises. As to the application dated 5.7.82 filed by Buchi Devi's transferees
and the other application filed by the tenant- respondent, the learned District
Judge opined that they were of no consequence. However, in the operative part
of the judgment, the learned District Judge added a rider. He directed that
inasmuch as some of the partners of the tenant firm M/s. India Umbrella
Manufacturing Company have purchased the rights of Buchi Devi in the house
property they were not liable to be ejected unless and until the house property
has been partitioned between the two co-owners, though they would continue to
pay rent to Bhagabandei in the same proportion in which it was being paid till
then. Thus, in substance, it appears that the learned District Judge has found
the interest of the landlords in the suit house to the extent of one half, i.e.
owned by Buchi Devi, having vested in the partners of one of the tenants firm
M/s. India Umbrella Manufacturing Company and therefore the tenancy having been
extinguished to the extent of one half by merger but continuing to the extent
of one half equivalent to the share owned by Bhagabandei. The other tenant was
directed to be ejected.
aggrieved by the appellate judgment, the two tenants preferred two civil
revisions in the High Court. In the civil revisions the buyers pendente lite
reiterated their stand that they were not interested in seeking eviction and
therefore the decree for eviction should be set aside.
the tenant M/s. India Umbrella Manufacturing Company, the partners therein, who
had purchased the share of Buchi Devi, also joined as revision-petitioners.
Both the revision petitions have been dismissed.
two appeals by special leave have been filed by the two tenants joining the
buyers of one half share belonging to Buchi Devi also as appellants. The
landlords have not chosen to file any appeal against that part of the judgment
of the High Court which has upheld the judgment of the appellate Court putting
an embargo on the right of the plaintiff-decree- holder to execute the decree
for eviction from that part of the property which is in possession of M/s.
India Umbrella Manufacturing Company as tenants "until the suit house is
partitioned amicably or through Court".
heard the learned counsel for the parties we are satisfied that the appeals are
liable to be dismissed. It is well settled that one of the co- owners can file
a suit for eviction of a tenant in the property generally para 25). This
principle is based on the doctrine of agency. One co-owner filing a suit for
eviction against the tenant does so on his own behalf in his own right and as
an agent of the other co-owners. The consent of other co- owners is assumed as
taken unless it is shown that the other co-owners were not agreeable to eject
the tenant and the suit was filed in spite of their disagreement. In the
present case, the suit was filed by both the co-owners.
the co-owners cannot withdraw his consent midway the suit so as to prejudice
the other co-owner. The suit once filed, the rights of the parties stand crystallised
on the date of the suit and the entitlement of the co- owners to seek ejectment
must be adjudged by reference to the date of institution of the suit; the only
exception being when by virtue of a subsequent event the entitlement of the
body of co-owners to eject the tenant comes to an end by act of parties or by
operation of law.
had willingly joined with Bhagabandei in filing the suit.
the continuity of litigation she parted with her share in the property.
out of the two tenants purchased her share. It seems that the tenancy is in the
name of a partnership firm and some of the partners have purchased the share of
Bhagabandei. It is not clear if all the partners or only a few out of all the
partners are the buyers. The fact remains that they have purchased only a share
in the property and not the entire property. The applicability of doctrine of
merger within the meaning of Clause (d) of Section 111 of the Transfer of
Property Act, 1882 is not attracted. In order to bring the tenancy to an end the
merger should be complete, i.e. the interest of the landlord in its entirety
must come to vest and merge into the interest of tenant in its entirety. When
part of the interest of the landlord or the interest of one out of many
co-landlords-cum-co-owners comes to vest in the tenant, there is no merger and
the tenancy is not extinguished. In our opinion, the first appellate Court was
not justified in placing a rider on the right of the decree-holders to execute
the decree unless the property was partitioned between the co-owners. However,
we need not dwell much upon this aspect as that part of the decree has achieved
a finality as the landlords have not pursued their challenge to the decree of
the first appellate Court by filing special leave petitions in this Court.
decree, in so far as the other tenant and sub-tenants i.e. the appellants in
C.A. No.5358/1996 are concerned, has to be sustained. The partners of the other
tenant firm i.e. M/s. India Umbrella Manufacturing Co. (appellant in C.A.
No.5357/1996) have purchased the property pendente lite and therefore they
cannot be allowed to take a stand contrary to the one taken by their
predecessor in interest and to the prejudice of the other plaintiff whose
rights they have not purchased. Their filing an application that they were not
interested in securing eviction of the other tenant is in the facts and
circumstances of the case immaterial and irrelevant.
order to cut short further litigation we are inclined to invoke the
jurisdiction vesting in this Court under Article 142 of the Constitution. As
noted in the earlier part of the judgment, the land standing below the
structure has been partitioned. The need for partitioning the super structure
standing over the land was not felt by the co-owner-landlords as the super
structure was just debris in their assessment as they had decided to demolish
the same and reconstruct the property separately on their respective pieces of
land falling to their respective shares by virtue of partition. In the absence
of the super structure having been actually partitioned it can be assumed that
the super structure would go with the land and each of the co-owners would, in
any case, be entitled to that part of the super structure which corresponds
with the land underneath as fallen to the separate shares of the two. The
decree for eviction in favour of the heirs of Bhagabandei (who has died during
the pendency of the proceedings and whose heirs have come on record) as against
the judgment-debtors Sekhar Chand Swami, Smt. Chanda Devi Swami and M/s. Bharat
Stores & Agency shall be available for execution and the tenants shall be
liable to be evicted from that part of the house and super structure as
corresponds with the share of the land which has fallen to the share of Bhagabandei.
the pendency of this appeal, we had directed, vide order dated 11.9.2003, the
parties to explore possibility of settlement, if any, and also to draw an
agreed map of the property showing the house property divided into two portions
indicated in separate colours, so as to point out that part of the property to
which the heirs of Bhagabandei would be entitled and that part of the property
to which Buchi Devi and now her transferees, pendente lite, would be entitled.
Unfortunately, the parties have not been able to draw an agreed map. Both the
parties have filed their separate maps. On a perusal of the two maps, we do not
find any substantial difference therein. Out of the two maps we find the one
drawn by M/s. Gautam Baruah & Associates on 26.9.2003 and filed by the
plaintiff-landlords to be comparatively more accurate and clear. That map shall
be transmitted to the trial Court and shall form part of the decree.
the appeals are dismissed with costs throughout. The judgment and decrees of
the appellate Court maintained by the High Court are confirmed. However, in
order to save the tenants from the peril of sudden eviction it is directed that
the decree for eviction shall not be available for execution for a period of
three months from today subject to the tenant- appellants filing an usual
undertaking and clearing the entire money part of the decree by making deposit
with the executing Court within a period f four weeks from today. Decrees in
the terms of the judgment of the first appellate Court, if not already drawn up
by it, shall be drawn by the trial Court annexing the map as a part of the