L.D. Sindhi vs G.P.Sen
2021 Latest Caselaw 11448 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Judgment reserved on 16.11.2021 
 
Judgment delivered on 09.12.2021 
 

 
Court No. - 85
 
Case :- SECOND APPEAL No. - 1718 of 1988
 
Appellant :- L.D. Sindhi
 
Respondent :- G.P.Sen
 
Counsel for Appellant :- S.M. Chaturvedi,A.N. Bhargava,Anita Misra
 
Counsel for Respondent :- R.P.Tewari,K.P. Tewari,Rama Nand Gupta,Rishikesh Tripathi,S.S.Sengar
 

 
Hon'ble Syed Aftab Husain Rizvi,J.

1. This second appeal has been filed against the judgment and decree dated 18.7.1988 passed by Civil Judge, Jhansi in Civil Appeal No. 201 of 1985 (Ganesh Prasad and others vs. Ramesh Singh and others). Learned appellate court has allowed the appeal filed against the judgment and decree dated 30.9.1985 in Original Suit No. 70 of 1976 (Ganesh Prasad and others Vs. Ramesh Singh and others) set-aside the judgment and decree of the trial court by which the original suit was dismissed and has decreed the suit of plaintiff for partition for a share of 3/8 in the disputed shop.

2, In brief the facts are as follows:-

Ganesh Prasad and others filed a suit for partition before the trial court. It was pleaded that Chiranji Lal, father of plaintiff nos. 1 and 2 and defendant no. 1 and husband of plaintiff no. 3 was tenant in possession of shop no. 393/2 Chamanganj Sipri Bazar, Jhansi and was running a barber shop. Defendant no. 1 also worked with him. Plaintiff was employed in railway and whenever he got time and opportunity he also performed the hair cutting work and plaintiff no. 2 also cooperated in the said vocation. Chiranji Lal died on 23.8.1974. After the death of Chiranji Lal plaintiffs and defendant no. 1 became tenants of the shop and came in possession. Defendant no. 1 with malafide intention of getting exclusive possession stopped giving the accounts of income. Plaintiffs have 3/4 share in the tenancy of the shop. The length of the alleged shop is 16 fit and width 8 fit and it can be partitioned between the parties.

3. Defendants in their written statements denied that plaintiffs are tenant of the disputed shop. They further pleaded that tenancy rights can not be partitioned. It was further alleged in the written statement that plaintiff no. 1 is an employee of railway while plaintiff no. 2 is a teacher. Plaintiff no. 3 being a woman of the plaintiff are not doing vocation of hair cutting. If the disputed shop is partitioned and any construction is erected then the landlord will evict him. Lastly it was also pleaded that tenancy rights can be acquired by succession but it cannot be partitioned. Defendant no. 5 filed separate written statement in which he denied the plaint case and further pleaded that plaintiffs and other defendants have no concern with the disputed shop. They are not entitled to get possession of the disputed shop. No permanent partition can be made. The owner of the disputed shop is Sri 1008 Raghunathji temple and answering defendants is its tenant on a monthly rent of Rs. 75/- and in possession of the disputed shop. After getting the disputed shop on rent the answering defendant has invested a lot of money in it and got it reconstructed. He is regularly paying the rent to the landlord and running hotel business in it. He also pays the electricity and water tax dues. Plaintiff has not arrayed Sri Raghunathji temple who is necessary party while plaintiff nos. 1 to 4 have been wrongly impleaded. Neither plaintiffs nor defendant nos. 1 to 4 are in possession of the disputed shop. They are also not tenant of the disputed shop, hence, the plaintiffs have no right to get the disputed shop partitioned.

4. Learned trial court framed 12 issues and after taking evidence from both the parties held that plaintiffs have failed to prove that they have 3/4 share as co-tenants in the shop in dispute. It further held that tenancy rights can not be partitioned. Tenants have only right to use the tenanted property, hence, suit for partition is not maintainable. On the basis of the aforesaid findings the learned trial court dismissed the suit by the judgment and order dated 30.9.1985.

5. Aggrieved by the aforesaid judgment and decree plaintiffs filed Civil Appeal No. 201 of 1985. The learned first appellate court reversed the findings of the trial court and held that plaintiffs being joint tenants have 3/8 share in the disputed shop and further that tenancy rights can be subject to partition. Learned first appellate court set-aside the judgment and decree of the trial court and decreed the plaintiffs suit in the terms that plaintiffs having title in the disputed shop, have right to get possession of 3/8 share of the disputed shop and use it and has ordered to prepare preliminary decree in the aforesaid terms.

6. Following substantial questions of law are involved in the second appeal:

i) Whether the tenancy rights can be subject to partition and suit for partition is maintainable for partition of tenancy rights ?

ii) What will be the effect of surrender of tenancy right of respondent no. 4 (defendant no.1) being in exclusive possession of the disputed shop and possession being delivered to the landlord and thereafter to appellant (defendant no. 5).

7. Learned counsel for the appellant (defendant no. 5) vehemently contended that suit for partition was not maintainable. No partition by metes and bounds of disputed shop can be made between the tenants as it will involve construction which will come in the category of material alteration, not permitted by the Rent Control Act and also can be a ground for eviction of the tenant. Learned counsel also contended that the disputed shop is very small in size, hence, physical partition is not possible. Lastly he contended that tenancy rights can not be subject to partition.

8. Learned counsel for the respondents in reply contended that a suit for partition of tenancy rights is maintainable and tenancy rights can be subject to partition between joint tenants. Learned counsel contended that after the death of Chiranji Lal all his legal heirs the respondents by way of inheritance became joint tenants. Learned counsel further contended that no construction of any permanent nature will be required for partition of the disputed shop. It can be conveniently partitioned between the joint tenants by temporary partition wall and can be used by all the joint tenants as per their share.

9. It is not disputed that property in question is commercial in nature, hence, after the death of Chiranji Lal all his legal heirs will inherit as joint tenants. Now the legal question is whether the tenancy rights can be subject to partition. The Allahabad High Court way back in 1878 in the case of Mohammad Bakhsh and others Vs. Mana and others 1896 ILR 18 All 334 has held that tenancy rights between joint tenants can be subject to the partition. Delhi High Court in R.F.A. No. 73 of 2010 decided on 13.8.2015, in case of Dilip Kumar Vs. Om Parkash and others relying on earlier decisions Iresh Duggal Vs. Virender Kumar Seth MANU/DE/3068/2014 and Bharat Insulation Co. Vs. Suraj Prakash MANU/DE/1761/2015 has answered the question in positive and held that there is no bar in any law whatsoever to partition the tenancy rights.

10. The learned Single Judge while answering the question of partition of tenancy rights and maintainability of partition suit has also taken into account the contention which are being raised by the counsel for the appellants that due to its smaller size or otherwise the property is not devisable by metes and bounds and has observed that even if the tenancy premises, owing to its small size or otherwise owing to the restrictions placed by the landlord are not divisible by metes and bounds, the same can always be partitioned by one or more of the several legal heirs appropriating the tenancy rights to himself/themselves to the exclusions of others in consideration of payment of ovalty or otherwise to the other legal heirs. So the law is clear on this point. Joint tenants have right to partition in the tenancy rights. What will be the mode of partition may depend upon the nature of tenanted property which can be looked into in final decree proceedings. The findings recorded by the first appellate court on this point is according to law and just and proper. There is no illegality in this finding of the learned appellate court. The learned trial court has failed to appreciate the point of law in this regard and findings recorded by it was erroneous. Learned appellate court has rightly reversed the findings of the trial court on this point.

11. Learned counsel for the appellant further contended that after the death of Chiranji Lal respondent no. 4 was in actual exclusive possession of the disputed shop. He was paying the actual rent. On 5.1.1982 he surrendered the tenancy rights and gave possession to the landlord who after taking possession let it to the appellant and now appellant is in possession of the disputed shop. Learned counsel contended that the respondents have no right regarding the disputed shop and appellant is sole tenant in possession, hence, suit for partition is not maintainable.

12. Learned counsel for the respondents contended that Chiranji Lal was the original tenant and after his death the legal heirs became joint tenants of the disputed shop. Surrender by one of the joint tenants will not be binding on the remaining joint tenants and will apply only to the extent of the share of respondent no. 4. Remaining respondents have never surrendered the tenancy right in favour of the landlord, hence, their rights of tenancy will exist and suit for partition is maintainable. Learned counsel placed reliance on the following citations:-

(i) 1989 Law Suit (SC) 264 H.C. Pandey Vs. G. C. Paul

(ii) 1979 ARC 242 Arya Kumar Ghosh and others Vs. Iind Addl. District Judge, Allahabad and others.

13. It is not disputed that Chiranji Lal was the original tenant of the shop and plaintiffs and defendant no. 1 to 4 are their legal representatives. The disputed shop is a commercial property, hence, after the death of Chiranji Lal all of his legal representatives will inherit the tenancy rights as joint tenants. It also stands proved from the evidence that only defendant no. 1 Ramesh Sen was professing vocation of hair cutting with his father in the disputed shop and after the death of Chiranji Lal he was in exclusive possession. None of the plaintiffs were in possession at any period of time in the disputed shop. It is true that surrender by one of the joint tenants will not amount to surrender by remaining joint tenants. A joint tenant can surrender only his rights. But in the present case only one of the joint tenants namely Ramesh Sen (defendant no. 1) was in actual and exclusive possession of the disputed shop. During pendency of the case he surrendered tenancy rights in favour of landlord and in pursuance thereof he also handed over the possession of the entire shop to the landlord who let it to the appellant (defendant no. 5) Lakshman Das Sindhi. It also stands proved from the evidence that at present only appellant Lakshman Das Sindhi is in possession of the disputed shop as tenant. So in the circumstances of the present case the rights of other joint tenants plaintiffs and defendant nos. 2 to 4 if any have become extinguished. Implied surrender will be presumed. The subject matter of the suit was tenancy rights in the disputed shop which is no more in-existence and the tenanted shop is in exclusive possession of the newly inducted tenant the appellant. Hence, the suit has become infructuous and now no decree for partition of tenancy rights can be passed. The second question is decided in the aforesaid terms.

14. From the above discussions it is clear that subject matter of the present case has become extinguished. There is no tenancy rights of respondents in-existence, hence, the suit has become infructuous and is liable to be dismissed in the aforesaid terms. The second appeal is liable to be allowed.

15. The second appeal is allowed. Judgment and decree dated 18.7.1988 passed by Civil Judge, Jhansi in Civil Appeal No. 201 of 1985 Ganesh Prasad and others Vs. Ramesh Singh and others is hereby set-aside. The original suit no. 70 of 1976 (Ganesh Prasad and others Vs. Ramesh Singh and others) stand dismissed.

Parties shall bear their own costs.

Dt/- 09.12.2021

Masarrat