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PETITIONER: JAGDISH DUTT & ANR.

       Vs.

RESPONDENT: DHARAM PAL & ORS.

DATE OF JUDGMENT:       12/04/1999

BENCH: B.N.  KIRPAL, S.  RAJENDRA BABU.

JUDGMENT:

Rajendra Babu, J. :

       A   suit   for   ejectment  was  instituted  by  the appellants on the grounds of arrears of rent and sub-letting by Dharam Pal (Respondent No.  1) and  Sat  Pal  (Respondent No.2).  The suit was decreed by the trial court on March 31, 1987.   Appeal against that decree, second appeal thereafter and further special leave petition to this Court against the decree in second appeal stood  dismissed.    The  appellants herein  levied  execution  on  February  5, 1991 and certain objections thereto were raised that Judgment Debtor No.    I was  unnecessarily arrayed as a party in the proceedings and he was not in possession of the disputed premises.  judgment Debtor No.  2 claimed that he was a tenant in respect of the shop in question and  his  tenancy  was  not  terminated  In accordance with  law.    This  contention  was belied by the finding recorded by the High Court in second appeal that the said Sat Pal (Respondent No.  2) was  not  a  tenant  but  a trespasser of   the   shop.     Hence  the  objections  were overruled.  Against that order a revision petition was filed which was also dismissed, of course, granting some  time  to vacate the premises subject to certain conditions.

       In the  execution petition respondent No.  2 claimed that  he  had  purchased  the  undivided  interest  of   the coparceners  in  the  Hindu  Undivided  Family of the decree holder and, therefore, actual physical possession cannot  be given  but  only  symbolic  possession  can  be given to the appellant-decree holder.    The   Executing   Court,   after inquiry, upheld  this contention.  That order was challenged in the High Court The High Court set aside the order made by the executing  court  and  remitted  the  matter  to  it  to investigate the quantum of share purchased by respondent No. 2.  If a good or larger share as opposed to an insignificant share had   been   purchased  by  respondent  No.    2  khas possession cannot be given to the appellant and if  only  an insignificant  portion  had  been purchased by him, the khas possession shall be given to the appellant.  It  is  against this   order   the   present  special  leave  petitions  are preferred.

       The learned counsel  for  the  appellants  contended that   it   is  not  open  to  the  respondents  during  the subsistence of tenancy  or  in  the  suit  for  recovery  of possession  of  the property after termination of tenancy to

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set up title in himself or in any other person.  Respondents had  to  surrender  possession  and  seek  remedy,  if  any, separately  in  case  he acquires title subsequently through some other person and he placed strong reliance  in  support of  this  proposition  on the decision of this Court in Sant Lal Jain vs.  Avtar  Singh  1985  (2)  SCC  332.    He  also contended that in a case of this nature where only a portion of the undivided interest had been purchased by the judgment debtor  there  would  be  no  merger of interest in terms of Sector 111(d) of the  Transfer  of  Property  Act  1832  and submitted  that the concept of merger would arise only if no property remains outside the sale.  In the present case only 1/3rd undivided share having  been  purchased  the  judgment debtor  cannot  resist the recovery of possession and placed reliance on the decision of this Court  in  Shah  Mathuradas Maganlal & Co.    vs.    Malage  &  Qrs 1976 (3) SCC 660 and Parmar Kanaksinh Bhagwansinh (Dead)  by  LRs  vs.    Makwana Shanabhal Bhikhabhai & Anr.  1995 (2) SCC 501.

       On the other  hand,  the  learned  counsel  for  the respondents  submitted  that  a  lease of immovable property determines in case the interests of lessee and lessor in the whole of the property becomes vested in one  person  and  in the  present  case  such  an event having taken place to the extent of the undivided share  of  the  coparceners  of  the joint  family,  decree  passed  in  favour of the appellants cannot be executed.  If that is so, the  possession  of  the entire  property  cannot  be obtained by the appellants and, therefore, only symbolic possession can be given and  placed reliance  on  the  decisions  in  Hasimathunnisa  Beaum  Vs. Vithal Rao Gangail & Anr.   AIR  1979  Andhra  Pradesh  273; Milki  Ram  &  Ors. vs. Raghurandan & Ors. Air 1982 H.P. 87; and Bawa Maharaj Singh vs. Bawa Gurmukh Singh  &  Ors.,  AIR 1965 Punjab 166.

       We will  first  deal  with  the  contention  that  a judgment   debtor   has  to  surrender  his  possession  and thereafter  seek  his  remedy  in  case  he   acquires   any subsequent  right  in  the disputed property is attracted or not.  A careful reading of the decision  in  Sant  Lal  Jain case (supra) would reveal that during the term of tenancy or in  the  suit  for  recovery  of  possession  thereof  after termination of such tenancy the tenant cannot set  up  title in  himself  and  he  has to surrender possession on tenancy being terminated and he has to seek his remedy separately in case he acquires title subsequent to the decree through some other person.  It is also made dear therein that he need not do so if he had acquired title  to  the  property  from  the lessor  or some one claiming through him in which case there would be a merger of two rights.  In that  case,  the  facts were  that  the original owner had leased the property which was held by the licensee through the lessee; that a sale had been effected in favour of the licensee  but  the  lease  in favour  of  the  original  lessor  was  continued;  that his interest was different from that of the original owner which was transferred to the licensee and thus there would  be  no merger of  interests.    In  that  view  of  the  matter the decision in Sant Lal Jain case [supra] will not  be  of  any assistance to the appellants.

       We  need  not examine the scope of Section lll(d) of the Transfer of Property Act inasmuch as respondent No.    2 is held  to  be  a  trespasser and not a lessee.  We have to find out the effect of the purchase of undivided interest of some of the coparceners in family of the  decree  holder  in

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respect  of  the  property  which  is  the subject-matter of execution.

       When a decree is passed in favour of a joint  family the  same has to be treated as a decree in favour of ail the members of the joint family in  which  event  it  becomes  a joint decree.  Where a joint decree for actual possession of immovable  property  is  passed  and  one of the coparceners assigns or transfers his interest in the subject  matter  of the decree in favour of the judgment debtor, the decree gets extinguished  to  the extent of the interest so assigned and execution could lie only to the extent of remaining part  of the decree.    In case where the interest of the coparceners is  undefined,  indeterminate  and  cannot  be  specifically stated  to be in respect of any one portion of the property, a decree cannot be given effect to before  ascertaining  the rights  of  the  parties  by  an  appropriate  decree  in  a partition suit.  It is no doubt true that the  purchaser  of the  undivided  interest  of  a  coparcener  in an immovable property cannot claim to be  in  joint  possession  of  that property with  all  the other coparceners.  However, in case where he is already in possession of  the  property,  unless the  rights  are  appropriately  ascertained,  he  cannot be deprived of the possession thereof for a joint decree holder can seek for execution of a decree in the whole and  not  in part of  the  property.  A joint decree can be executed as a whole since it is not divisible and it can  be  executed  in part  only where the share of the decree holders are defined or those shares can be predicted or  the  share  is  not  in dispute.   Otherwise the executing court cannot find out the shares of the  decree  holders  and  dispute  between  joint decree  holders  is foreign to the provisions of Section 47, CPC.  Order XXI, Rule 15, CPC enables a joint decree  holder to  execute  a  decree  in  its entirety but if whole of the decree cannot be executed, this provision cannot be  of  any avail.   In  that event also, the decree holder will have to work out his rights in an appropriate suit for partition and obtain necessary relief thereto.  Various decisions cited by either side to which we have referred to do not  detract  us from the  principle stated by us as aforesaid.  Therefore, a detailed reference to them is not required.

       In  this view of the matter, we think the High Court was justified in making the order under appeal.   Hence  the special leave  petitions  stand  dismissed.  No orders as to costs.