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CASE NO.: Appeal (civil)  6986-6987 of 2005

PETITIONER: M/s Karta Ram Rameshwar Dass                                

RESPONDENT: Ram Bilas and others                                             

DATE OF JUDGMENT: 23/11/2005

BENCH: B.N.AGRAWAL & A.K.MATHUR

JUDGMENT: J U D G M E N T  (@ 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 \026 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 \026 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 \026 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

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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 \026 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 \026 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

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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.