M/S
Karta Ram Rameshwar Dass Vs. Ram Bilas & Ors [2005] Insc 664 (23 November 2005)
B.N.Agrawal & A.K.Mathur (@ Slp (C) Nos. 7982-83 Of 2003)
B.N.Agrawal, J.
Leave granted.
These appeals by defendant No. 2 arise out of judgment rendered by Punjab
& Haryana High Court in second appeals.
The short facts are that a shop measuring 90' in length and 18' in width
situate in Jind Mandi was originally owned by one Ram Gopal and upon his death,
his two sons, namely, Jai Narain and Chet Ram inherited the same in equal
shares. In the year 1956, Chet Ram one of the sons of Ram Gopal, who was
co-sharer to the extent of half share, let out front portion of the shop to M/s
Karta Ram Rameshwar Dass defendant No. 2 with the consent and authority of the
other co-sharer Jai Narain. Subsequently, Chet Ram died and upon his death, his
sons and daughters sold their half share in the disputed shop to one Yashpal defendant
No. 1 under registered sale deed dated 20th August, 1975. Thereafter on 26th September, 1975, Jai Narain, another co- sharer filed a suit for partition of his
half share in the aforesaid shop in which Yashpal, the purchaser, and the firm
M/s Karta Ram Rameshwar Dass were impleaded as defendant Nos. 1 and 2
respectively. The share of the plaintiff in the shop in question was not
disputed. In the said suit, a preliminary decree was passed in favour of the
plaintiff to the extent of his half share in the shop in question and a Local
Commissioner was appointed to effect partition who submitted report to the effect
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 other
would get its back portion. The plaintiff filed objections to the report of the
Commissioner and according to him the shop should have been partitioned
longitudinally by constructing a wall through and through, which partition
would be a just one between the parties and partitioning the shop horizontally
by giving front portion to one party and back portion to another would be
unjust and unequal especially when the front portion of shop, which opens in
the Mandi, would be more valuable one whereas back portion less valuable.
Defendant No.2 who was the tenant in the front portion of the shop objected to
the prayer made by the plaintiff stating therein that by erecting a wall, his
tenanted premises would be divided into two portions which would amount to
evicting him from a portion of the tenanted premises without taking recourse to
the provisions of the Haryana Urban (Control of Rent and Eviction) Act, 1973
(hereinafter referred to as 'the Act'). Defendant No. 1, who is purchaser from
Chet Ram, took the stand that the objections to the local commissioner's report
filed by the plaintiff were fit to be rejected.
The trial court allowed the objections filed by the plaintiff to the report
of the local commissioner and passed a final decree directing that the shop in
question should be partitioned longitudinally by constructing middle wall
through and through but the tenant would continue to occupy the shop let out to
him unless and until he is evicted therefrom by taking recourse to the
provisions of the Act. Against the final decree passed by trial court, two
appeals were filed before the lower appellate court; one by heirs and legal
representatives of Jai Narain (since dead); and other by the purchaser
defendant No.1. The tenant-firm defendant No. 2 filed a cross objection in the
appeal filed by the legal representatives of Jai Narain. The appellate court
upheld the final decree passed by the trial court by dismissing both the
appeals as well as the cross objection. Thereafter, three appeals were filed
before the High Court; one by the heirs of Jai Narain; another by defendant No.
1 transferee from Chet Ram; and the third by tenant-firm (defendant No.2). The
High Court dismissed appeals filed by the transferee as well as the tenant but
allowed the same filed by legal representatives of Jai Narain, modified decrees
of trial court as well as the lower appellate court and granted decree in favour
of the plaintiff for vacant possession directing the tenant to be evicted from
that portion of the tenanted premises which had fallen to the share of the
plaintiff in the final decree. Hence, these appeals by special leave.
Learned counsel appearing on behalf of the appellant in support of the
appeals has raised two points. Firstly, it has been submitted that the tenancy
was indivisible as such the claim for its partition was unwarranted; and
secondly, the tenant-firm could be evicted only by filing an eviction
proceeding in accordance with the provisions of the Act upon grounds enumerated
thereunder and decree for recovery of vacant possession from it passed by the
High Court in the partition suit was not permissible under law. On the other
hand, learned counsel appearing on behalf of the respondents submitted that a
tenant could not object to the claim for partition by a co- sharer so long the
same is bona fide and the High Court was quite justified in passing a decree
for recovery of vacant possession against the tenant.
In support of their submissions, both the parties have relied upon
conflicting decisions of the High Courts but it is not necessary to refer to
the same as both the points are concluded by a judgment of this Court in the
case of Sk. Sattar Sk. Mohd. Choudhari v. Gundappa Amabadas Bukate AIR 1997
Supreme Court 998. In that case, a shop measuring 23' x 19' belonged to one Shaikh
Mohd. Choudhari who died in 1956 leaving behind his two sons, namely, Shaikh Jaffar
and Shaikh Sattar. In the year 1964, one of the brothers Shaikh Jaffar let out
the premises in question to a tenant Gundapa Amabadas Bukate who continued to
pay rent till 1974. In the meantime, there was a partition amongst the two
brothers, in which a portion of the shop measuring 23' x 12=' fell in the share
of Shaikh Sattar whereas the remaining portion in the share of Shaikh Jaffar.
Both the brothers intimated the tenant about the partition requesting him to
make payment of rent of the premises in question separately in equal proportion
to them but no rent was paid.
Accordingly by a notice, his tenancy was determined and consequently a
petition under Section 15 of the Hyderabad Houses (Rent Eviction and Lease)
Control Act, 1954 was filed by one of the brothers Shaikh Sattar for eviction
of the tenant on the ground of default as well as bona fide personal necessity
of the plaintiff. The tenant objected on the grounds that the partition was not
a bona fide one and petition for eviction by one of the brothers was not
maintainable. Both the grounds for eviction were denied by the tenant. The Rent
Controller granted eviction on both the grounds which was upheld in appeal.
Thereafter matter was taken to the High Court of Bombay by filing a civil revision
application which, after reversing both the orders impugned before it,
dismissed the eviction petition on the ground that the tenancy was indivisible
and partition amongst the brothers would not affect the same and the claim for
eviction at the instance of only one of the co-sharers would not be
maintainable. Challenging the decision of the High Court, the plaintiff filed
an appeal before this Court by special leave. During the pendency of the
appeal, the tenant purchased the share of Shaikh Jaffar in the property. It has
been laid down by this Court that if all the co-owners "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". It was
further laid down that there was no right in the tenant to prevent the co-
owners from partitioning the tenanted accommodation among themselves unless it
was shown that the partition was not bona fide and was a sham transaction to
overcome the rigors of rent control laws which protected eviction of tenants
except on grounds specified in the relevant statute meaning thereby that a
tenant could be evicted only by taking recourse to the provisions of rent
control laws upon proof of the grounds enumerated thereunder. This Court came
to the conclusion that the partition between the co-sharers was bona fide and
as the tenant had acquired the share of Shaikh Jaffar as owner thereof, the
claim for eviction from the remaining portion which fell to the share of the
plaintiff was granted.
In view of the foregoing discussion, we hold that in a suit for partition
filed by one co-sharer against another if a tenant is made party, he can object
to the claim for partition if it is shown that the same was not bona fide and
made with an oblique motive to overcome the rigors of rent control laws which
protected eviction of tenant except on grounds set out in the relevant statute.
After a partition is effected or a decree for partition is passed, it would
be open to the co-sharers to evict a tenant from that portion of tenanted
premises which had fallen in their respective shares by filing separate
proceedings for eviction under rent control laws on the grounds enumerated thereunder.
In the present case, the tenant failed to prove that the claim for partition
was not bona fide. Therefore, final decree in the suit for partition has been
rightly confirmed by the High Court but it was not justified in reversing
decree of the trial court, which directed that the possession of the tenant
could not be disturbed unless and until proceeding is initiated for its
eviction under the Act, and in ordering for recovery of possession from the
tenant of that portion of the tenanted premises which had fallen to the share
of the plaintiff. In our view, the trial court was quite justified in directing
that possession of the tenant would not be disturbed and it can be evicted only
in accordance with law by taking steps for eviction under the provisions of
rent control legislation upon the grounds enumerated thereunder.
In the result, the appeals are allowed in part and that portion of the
impugned judgment, rendered by the High Court, whereby a decree for vacant
possession of the portion of the property falling to the share of the plaintiff
has been passed in his favour is set aside and judgment and decree passed by
the trial court are restored in its entirety. In the circumstances of the case,
we direct that the parties shall bear their own costs.
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