HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved Reportable Case :- WRIT - A No. - 59959 of 2015 Petitioner :- Radhey Shyam Gupta Respondent :- Additional District Judge & 8 Others Counsel for Petitioner :- Salil Kumar Rai Counsel for Respondent :- Arvind Srivastava Hon'ble Mrs. Sunita Agarwal,J.
Heard Sri Salil Kumar Rai, learned counsel for the petitioner and Sri Arvind Srivastava, learned counsel for the respondents.
In the release proceeding, an application 32-Ga under Section 10 CPC in Rent Control Appeal No.3 of 2014 has been filed by the petitioner before the Appellate Court with the prayer to stay the proceedings with the plea that the applicant/tenant had purchased the share of one of co-owners in the shop in question and he has been impleaded in the partition suit pending between the co-owners of the building in which the shop in question exists. The Appellate Court has rejected the application on the ground that the applicant may assert his right as a co-owner in the shop in question in an appropriate proceedings, but being a tenant he cannot say that the release application cannot proceed against him.
Challenging the order of rejection, contention of the petitioner is that the right of the petitioner to seek a partition of the house or to retain possession of the shop in question as one of the co-owners cannot be disputed in view of the assignment by the co-owner. The registered sale deed executed in favour of the petitioner has not been challenged by any of the co-owners. Now with the purchase, he became the co-owner of his share in the shop in question and, therefore, he cannot be evicted as a tenant on the personal need of another co-owner.
The court below has failed to consider that the petitioner has been impleaded in the partition suit for declaration of his share. In case the petitioner is evicted in the release proceeding, he may not get this shop even in the partition suit as the fact of dispossession may weigh against the petitioner. In that eventuality, his right to get the shop back as a co-owner even after assignment of the rights by one of the co-owners will materially be affected. The lower Appellate Authority has erred in not considering this aspect of the matter. It is not a case where the petitioner is a third party or a person who is seeking the shop as a stranger. The right of the petitioner to retain the possession as a tenant of the whole shop and as a co-owner for a portion of the shop cannot be taken away. The basis of this submission is that even in the release proceedings under section 21(1) (a), the prescribed authority can part release the tenament. The release proceeding, therefore, are to be stayed in order to meet the ends of justice, in the peculiar facts and circumstances of the case.
Repelling this submission, learned counsel for the respondent submits that the status of the petitioner as a tenant in the shop in question does not change with the purchase of a portion of the share of one of the co-owners. It is well settled that one of the co-owner landlord can maintain the release, the consent of other co-owners of the disputed property in such a case is assumed.
As far as status of the petitioner is concerned, his interest in the property as a tenant would not merge with the interest of the landlord. He continues to be tenant unless he purchases the whole interest in the tenanted accommodation. Admittedly, the purchase is only for the share of one of the son of the co-owner, and therefore, it does not bring to an end to the relationship of landlord and tenant. As far as the partition suit is concerned, mere fact of impleadment of the petitioner in the same would be of no relevance for the purpose of release in absence of determination of his share vis-a-vis other co-owners and transfer of possession under the partition decree.
Moreover, the application under Section 10 C.P.C. in the release application is not maintainable as the complete Code is not applicable in the summary proceedings. The Code applies to a limited extent as per Section 34 of the Act read with Rule 22 of the Rules, 1972. This apart, the controversy in the release application is not directly and substantially the same as in the partition suit. The petitioner being a stranger to the joint family, his right to seek partition are subject matter of adjudication in the partition suit whereas in the present proceeding he is only a tenant. The release proceedings cannot be stayed on the mere apprehensions raised by the petitioner.
In rejoinder, learned counsel for the petitioner reiterates that the petitioner cannot be termed as stranger. It is not a case where a third person is seeking to enter into the possession of a joint family property after purchase. Infact the petitioner is already in possession of the shop and in case he is evicted in the release proceedings, his right in the partition suit for seeking determination of his share in the shop in question and further to get possession would be materially effected.
Having heard learned counsel for the parties and perused the record, there can no be any dispute about the maintainability of the release application by one of the co-owners landlord in view of Full Bench decision in Gopal Dass and others vs. Ist Additional District Judge, Varanasi 1987 (1) ARC 281.
As far as the status of the petitioner or merger of his interest as co-owner is concerned, indisputably, fraction of the share of one of the co-owners in the tenament has been purchased by the tenant. His status vis-a-vis other co-owners will remain that of the tenant.
Section 111 of the Transfer of Property Act deals with the situation wherein the lease of an immovable property is determined. Clause (d) of Section 111 provides that the lease would be determined only in a case where the interests of the lessor and the lessee in the whole of the property vests at the same time in one person in the same right. For the merger to be effective so as to determine the lease the purchase is to be of the entire tenament. The tenant had acquired only initial co-ownership interest in the shop in question, the lease, therefore, cannot be said to have been determined by merger so long as the interest of the lessee in the lesser estate and that of the owner in the larger estate do not merge in full. This issue has been set at rest by the Apex Court in Pramod Kumar Jaiswal And Others vs Bibi Husn Bano & Others reported in AIR 2005 SC 2857. Paragraphs '15' and '16' are relevant and quoted as under:-
"15. Here in this case, the lessee has acquired only the rights of certain co- owner landlords and may have the right to work out his rights against the others. The right to work out his rights would not enable him to plead that the two rights in the whole of the property has come to vest in him. What is involved in the present case is the question whether on the acquisition of the rights of some of the co-owner landlords by the tenant, there is an extinguishment of the tenancy by merger as postulated by Section 111 (d) of the Transfer of Property Act. T. Lakshmipathi answers that question and with respect, answers that question correctly."
"16. A plain and grammatical interpretation of Section 111(d) of the Transfer of Property Act leaves no room for doubt that unless the interests of the lessee and that of the lessor in the whole of the property leased, become vested at the same time in one person in the same right, a determination of the lease cannot take place. On taking an assignment from some of the co-owner landlords, the interests of the lessee and the lessor in the whole of the property do not become vested at the same time in one person in the same right. Therefore, a lessee who has taken assignment of the rights of a co-owner lessor, cannot successfully raise the plea of determination of tenancy on the ground of merger of his lessee's estate in that of the estate of the landlord. It is, thus, clear that there is no substance in the contention of the learned counsel for the appellants that in the case on hand, it should have been held that the tenancy stood determined and the application of the landlord for a direction to the tenant to deposit the rent in arrears should have been dismissed. The position of the appellants as tenants continue and they are bound to comply with the requirements of the Rent Control Act under which the order for deposit has been passed against them. The High Court has rightly dismissed the revision."
Learned counsel for the petitioner has not been able to dispute that his status remains that of the tenant in the shop in question even after purchase of the share of one of the co-owners.
The contention that though the tenancy cannot be splitted, however, under Section 21(1)(a) of the Act,1972, the Prescribed Authority can consider for part release of the tenament and in that eventuality, it can also consider the petitioner's right to retain the possession of the shop being the co-owner after assignment. This contention of learned counsel for the petitioner is misconceived in as much as in the release proceeding, the Authority is concerned with the status of petitioner as a tenant and further whether the relationship of landlord and tenant exist. The question of part release, if any, will be considered by the Rent Control Authority at the time of consideration of the release on the merits of the personal need of the landlord and the comparative hardship. The proposition placed by the learned counsel for the petitioner is highly imaginary and does not find support from any legal principle.
One person cannot have two status, one of a tenant and other of a co-owner of one tenament at the same time. This apart, Section 10 C.P.C. Is not applicable in the release proceedings. The prayer for stay of the proceedings of release in view of the impleadment in the partition suit is misconveived.
Lastly learned counsel for the petitioner has relied upon judgment of this Court in AIR 1975 Allahabad 413(Jado Rai vs. Onkar Prasad) in Civil Revision No. 688 of 1972 and AIR 1982 SC 83 (P.V. Shetty bs. B.S. Giridhar to submit that in a situation where section 10 C.P.C. is not applicable, the Court/authority has power to stay the proceedings of subsequent suit under Section 151 C.P.C., whenever invoked, the provisions under Section 151 C.P.C. are applicable and under its inherent power the Rent Control Authority or the Appellate Authority can stay the proceedings pending before it.
Dealing with this submission, suffice is to say that the petitioner has failed to make out a case for invoking the inherent power of the Rent Control Authority.
This Court further does not think it proper to burden this judgment with the rulings relied upon by the learned counsel for the respondents when there is no dispute with regard to the legal propositions considered therein.
The writ petition is dismissed.
Order Date :- 6.11.2015 P.P.