Sh. Vijay Kumar Jain, Sh. ... vs Mr. A.R. Marwah (Now Dead Through ...
2003 Latest Caselaw 139 Del

JUDGMENT

S.N. Kapoor, J.

1. Heard.

2. This appeal is directed against an order of dismissal of a suit of Mr. Vijay Kumar Jain, a tenant. The brief facts giving an occasion to filing of this appeal are as under.

3. Sh. Sant Ram Marwah was landlord of the premises in dispute. He filed an eviction petition and that eviction petition was allowed on 9th October, 1972. Three years time was granted to vacate the shop. Sh. Sant Ram Marwah died on 27th May, 1984 leaving behind respondents No. 1 to 4 as his legal heirs and representatives. Out of these four legal representatives, Sh. A. R. Marwah for himself and on behalf of respondent No. 2, Sh. N. C. Marwah accepted Rs.105/- towards monthly rent from June 1974, and agreed to create a fresh tenancy at the rate of Rs.250/- per month with effect from 1st October, 1975 and accordingly a rent receipt for a sum of Rs.250/- was issued on 4th October, 1975. Sh. D. B. Marwah, respondent No. 3 proceeded with the execution despite the fact that a fresh tenancy was created by respondents No. 1 and 2. Objection was filed against the execution application by the appellant and that objection is still pending. But since stay was not granted in those objections, he filed a suit. That suit was dismissed by the learned Trial Court. The First Appellate Court dismissed the appeal filed against dismissal of the suit.

4. Feeling aggrieved, the appellant has filed this appeal.

5. Following three substantial questions of law were raised in the second appeal:-

"1. Whether the creation of the fresh lease by respondents 1 and 2 in favor of the appellant amounted to a transfer of their interest by way of lease in favor of the appellant. If so, whether the appellants were entitled to resist the execution of decree by respondent No. 3?

2. Whether respondent No. 3 is entitled to execute the decree for physical possession without the consent of the respondents No. 1 and 2, the other co-owners?

3. Whether the lease created by respondents 1 and 2 in favor of the appellants amounts to a lease of their share only in favor of the appellants?"

6. The fact that the petitioner was allowed to continue as tenant by respondents No. 1 and 2, is not in dispute. It is no more in dispute that respondent No. 3 did not agree to this letting out and did not give any consent in writing to let out the premises. It is also an undisputed fact that there was no partition of the property in dispute.

7. While it is trite to say that all the co-owners have co-extensive right in respect of each and every inch and portion of the tenanted premises as a legal proposition, yet there is very substantial question of law in peculiar facts and circumstances. Even the learned Senior Counsel appearing on behalf of the appellants does not deny the right of respondent No. 3, Sh. D. B. Marwah. His submission is that since partition has not taken place in between the parties and since the other two respondents have let out the premises to the appellant, the decree has been rendered unexecutable. So long as there is no partition respondent No. 3 could not pursue the execution proceedings at least to the extent of shares of respondents No. 1 and 2.

8. In this regard the learned senior counsel relies upon two judgments of the Supreme Court in support of his contentions. In Jagdish Dutt and another vs. Dharam Pal and others the Supreme Court made the following observations:

"7. When a decree is passed in favor of a joint family the same has to be treated as a decree in favor of all 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 favor 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 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 a part only where the share of the decree-holders are defined or those shares can be predicated or the share is not in dispute. Otherwise the executing Court cannot find out the shares of the decree-holders is foreign to the provisions of S. 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.

9. In terms of the judgment if the decree is passed in favor of the father, inherited by his three sons, it would be joint decree in favor of all the brothers. Though initially it was not a joint decree but by virtue of succession it has turned into a joint decree. Where a joint owner or joint decree holder wants to execute such a decree in execution for actual possession of the immovable property then he can claim, at the most, if the property had been partitioned, to the extent of his share. But, in case the property has not been partitioned and all other persons wanted to create a tenancy and accepted a person as a tenant, then it may not only be inconvenient and may be oppressive also. In certain cases like the present one, it is a case of hardship for joint decree holder Respondent No. 3 as well.

10. In the case of Jagdish Dutt and another vs. Dharam Pal and others (supra) the tenant himself had purchased half share of the tenanted premises and in that case the Supreme Court took the view that if whole of the decree could not be executed or otherwise the executing court cannot find out the shares of the decree-holders, the only course open for such a decree holder would be to approach an appropriate forum for filing a suit for partition and obtain necessary relief thereto. The Supreme Court had considered various decisions cited by both sides to which the Lordships had referred to and opined that they did not detract them from the principle stated by the Supreme Court as aforesaid.

11. The learned Counsel for the appellant further relied upon another judgment of the Supreme Court in Imambi vs. Azeeza Bee JT 2000 (9) SC 562. In that case also the tenant had purchased the property to the extent of the share of one of the joint decree-holders. It was held by the Supreme Court that since the tenant became co-owner in respect of half the part, the High Court committed error in law in recording to the contrary and dismissing the revision petition and initial application of the appellant under Section 47 C.P. C.. In that case also subsequent event and the changed circumstance of the tenant becoming a co-owner could not be rejected out of hand and it could not be held that the appellant continued to be a tenant in respect of the entire premises notwithstanding the agreement to sale in his favor.

12. It is thus apparent that while executing a decree the Executing Court is supposed to take into consideration the subsequent events after passing of the decree, particularly in cases where execution proceedings are brought by one of the decree holders while others have allowed the judgment debtor to stay in the premises by accepting him to be a tenant. In the aforementioned circumstance, the lease created by respondents No. 1 and 2 in favor of the appellants would amount to a lease of their share only in favor of the appellants. They could not be treated to be tenant in respect of a share of the respondent No. 3. But respondent No. 3 is not entitled to execute the decree for physical possession alone. In terms of the judgment of the Supreme Court in the two aforementioned cases after creation of the fresh lease by respondents No. 1 and 2 in favor of the appellants amounted to transfer of their interest by way of lease in favor of the appellants and the appellants are lawfully entitled to resist execution of the decree by respondent No. 3 in respect to the shares of respondents No. 1 and 2. The decree is inexecutable for the present so long the share of respondent No. 3 is not separated. In such circumstances, the only remedy available for the aggrieved joint decree-holder would be to claim mesne profits of his share and to file a suit for partition if he wants to take possession of his share.

13. For the aforesaid reasons, the appeal has to be accepted and so long as the property is not partitioned among the co-owners/respondents, the respondent Sh. D.B. Marwah would not be entitled to execute the decree relating to recovery of possession. However, the appellants cannot claim the same relief in respect of share of mesne profits, for that would be divisible part of the decree.

14. Appeal is accepted accordingly.

15. Parties are left to bear their own costs in the aforementioned circumstances.