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PETITIONER: JAHURI SAH & ORS.

       Vs.

RESPONDENT: DWARKA PRASAD JHUNJHUNWALA & ORS.

DATE OF JUDGMENT: 27/04/1966

BENCH: MUDHOLKAR, J.R. BENCH: MUDHOLKAR, J.R. HIDAYATULLAH, M. BACHAWAT, R.S. SHELAT, J.M.

CITATION:  1967 AIR  109            1966 SCR  280

ACT: 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  house- Relationship  of  tenant  and  landlord  whether  arises-Act whether  applicable-Agreement  to pay  compensation  whether enforceable. Adoption-Existence  of deed of adoption  admitted-Oral  evi- dence whether barred.

HEADNOTE: Two  Hindu undivided families one of them being  represented by the appellants and the other by the respondents were  co- owners 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  impleaded. 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 special leave. 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

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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  co- owners.  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]

JUDGMENT: 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   the appellants. S. T. Desai and R. C. Prasad, for the respondents. The Judgment of the Court was delivered by Mudholkar, J. This is an appeal by certificate from a  judg- ment  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 house. 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 therefrom 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

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some time whereafter 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. 501- p.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  conclu- sions.   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

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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 costs. 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. 501- p.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  envidence  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

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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  un-

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divided  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  co- owners  compensation.   No authority was  cited  by  learned counsel  in support of his contention that ouster of  a  co- owner  is  a  sine qua non for enabling him  to  claim  com- pensation from the co-owner who is in occupation and  enjoy- ment   of  common  property.   We,  therefore,  reject   the contention. In the circumstances, therefore, we dismiss the appeal  with costs. Appeal dismissed. 286