Surendra Kumar Jain And Anr. vs Attar Chand Jain And Ors.
2004 Latest Caselaw 608 Del

JUDGMENT

Dalveer Bhandari, J.

1. This appeal is directed against the judgment of the learned Single Judge dated 20.12.2001 passed in EA 225/1999 in Ex. No. 69/96.

2. Brief facts which are necessary to dispose of this appeal are recapitulated as under:

3. Attar Chand Jain, decree holder purchased the property in question in auction. This is not disputed that the possession of the property except Shop No. 615 is with the auction purchaser. Shop No. 615 is stated to be in occupation of Surender Kumar Jain and Devender Kumar Jain. Warrants of possession for delivery of the physical possession of the premises were issued. Objections were filed in which it was stated that the property in dispute had been purchased by late Ram Chand. On the ground floor, the business was started under the name and style of M/s. Kedar Nath Ram Chand. The said business was dissolved on 6.7.1941. Thereafter Ram Chand's two sons Nem Chand and Moti Lal started the partnership business under the name and style of M/s. Nem Chand and Brothers in this shop i.e. 615. According to the objectors, that the property was let out by Ram Chand at the rent of Rs. 25/-per month. Business of M/s. Nem Chand and Brothers was subsequently dissolved on 8.7.1956.

4. The decree holder Attar Chand along with Moti Lal, Nem Chand started the business under the name and style of M/s. Kedar Nath Ram Chand. The said business continued in this very shop. The partnership was dissolved on 3.11.1959. The decree holder Attar Chand Jain separated from the business of M/s. Kedar Nath Ram Chand and allowed the business from his shop. The other partners namely Moti Lal and Nem Chand continued the business under this very name. It is significant to mention that on 17.6.1961 Moti Lal also separated himself from the business being run by the firm of M/s. Kedar Nath Ram Chand vide the deed of partnership dated 11 th September, 1961. Nem Chand and co-owner also associated Surender Kumar and Devender Kumar Jain. They carried on business under the name and style of M/s. Kedar Nath Ram Chand. It is pleaded that this partnership was also dissolved through a dissolution deed dated 8.7.1966. Nem Chand and Dhanender Kumar Jain left the business and it was taken over by Surender Kumar and Devender Kumar. Another partnership dated 8.7.1966 was executed. It is asserted that from the very beginning M/s. Kedar Nath Ram Chand are in, occupation of the shop as tenant and decree holder has no right to ask for the vacant possession or to compel the firm to vacate under the provisions of Order 21 Rule 95 of the Code of Civil Procedure. It is the further case of the objector that the partnership is still in existence and carrying on the business under the name and style of M/s. Kedar Nath Ram Chand. On these pleadings following issues were framed:

"(1) Whether defendant No. 1 spent Rs. 25,000/- or any amount for building superstructure on House No. 4676? If so, its effect? O.D.

 (2)    Whether premises Nos. 4343 to 4345 are also joint Hindu family property and the present suit, as such, is partial partition and therefore, liable to be dismissed? O.D. (Onus objected to).  
 

 (3)    Whether the suit has been over-valued for jurisdiction? If so, what is the correct valuation? O.D. 
 

 (4)    Whether all coparceners are residing in House No. 4676 and the house, therefore, cannot be partitioned by metes and bounds? O.D. 
 

 (5)    Whether Shri Sultan Singh separated from the joint Hindu family during the life-time of his father and his descendants, therefore, have no interest in the property in dispute? O.P. (Onus objected to). 
 

 (6)    Whether defendant No. 3 has any share in the property in dispute? If not, what are her right therein, if any, and with what effect? O.P. 
 

 (7)    Whether the suit is barred by limitation? O.D. No. 4. 
 

 (8)    Whether the plaint does not show any cause of action against defendant No. 4? O.D. No. 4. 
 

 (9)    Whether all members of joint Hindu family have not been imp leaded? If so, its effect? O.D. No. 4. 
 

 (10) Whether the suit has not been properly valued for Court-fees? If so, what is the correct valuation? O.D. No 4. 
 

 (11) Whether Kedar Nath Ram Chand is in occupation of shop Nos. 615,587 as a tenant? If so, its effect? O.D.
 

 (12) Relief.  
 

5. It is alleged that during his life-time Nem Chand executed Will dated 3.6.1977 wherein it was declared that Nem Chand was the owner of 1/3rd share of the property. The auction purchaser was an attesting witness to the Will and it was mentioned in the Will that Kedar Nath Ram Chand was the tenant therein. Thus it is alleged that the auction purchaser is estopped from claiming that objectors are not the tenants of the said property. A rejoinder was filed by the auction purchaser. It was pointed out that the suit for partition was filed by the decree holder for partition of the house bearing No. 4676, Gali Mohan Singh, Pahari Dhiraj, Delhi and the partition of the shops. On 17.7.1970 the Court recorded the statement of the parties that it was held that auction purchaser and his two brothers were owners of the property to the extent of one-third share each. Subsequently vide the same proclamation property was sold to the decree holder (Attar Chand Jain). It is denied that the objectors are the tenants of the property in question. It has been pleaded that a tenancy even if created in the name of the partnership firm is always accepted as the tenancy in favor of the party who constituted the partnership business. The firm is only a compendious name but not a legal entity which is entitled to claim tenancy right. It was asserted that even if the shop has been purchased and owned by Ram Chand and he had let it to M/s. Nem Chand and Brothers which comprised of Nem Chand Jain and Moti Lal Jain even then the tenancy came to an end immediately on the death of Ram Chand in the year 1944 for the reason that Nem Chand and Moti Lal being the partners were the tenants thereto. According to the auction purchaser Attar Chand, Nem Chand and Moti Lal were co-owners of the property and, therefore/there could not be any tenancy in their favor.

6. It is also asserted that the objectors are judgment debtor Nos. 6 and 7 and sons of Nem Chand and they are bound by judgment and a decree. It was categorically denied that any tenancy has been created and it had never been agreed . that Nem Chand and Moti Lal shall collect the rent from Kedar Nath Ram Chand.

7. The objectors highlighted the fact that right from very beginning when the decree holder (auction purchaser) had filed the suit, it has been alleged that it was Kedar Nath Ram Chand who were the tenant as a firm in the property. It was the said firm that was paying the rent. He highlighted that in all the earlier litigations it had been alleged that the said firm had been a tenant in the property and even in the Will executed by the father of the objectors to which the decree holder is an attesting witness. By the order of the learned Single Judge on 10.10.2001, the Court directed that the objectors may file affidavit as to when they were the tenant in the property, who had let out the property to that effect and what was the status of the person who let out the property to them. Surender Kumar Jain filed the affidavit. It is pointed out that in the year 1966 Nem Chand and Dhanender Kumar opted out and the business was carried on by Surender Kumar Jain and Devendera Kumar Jain who were still carrying on the business. The tenancy was created in respect of the firm by Nem Chand who was controlling the affairs of the property. It is also the case of the objector that they have been regularly paying the rent of the shop. It may be pertinent to mention that in the proclamation objectors are mentioned as the tenants but such mention in the proclamation would not conclusive proof of tenancy.

8. It is not disputed that the property initially was purchased by Lala Ram Chand father of Nem Chand, Attar Chand and Moti Lal and after the death of three sons had one-third share in the property. The case of the objector is that Moti Lal had separated himself from the business of Kedar Nath Ram Chand on 17.6.1961. Objector contends that thereafter vide of the deed dated 11.9.1961 Nem Chand co-owner also associated Surender Kumar Jain, the objector along with Dhanender Kumar and they carried on business under the name and style of M/s. Kedar Nath Ram Chand in the suit property. The said firm was dissolved on 8.7.1966. Nem Chand Jain and Dhanender Kumar separated themselves from the business and Surender Kumar and Dhanender Kumar had taken over the said business. The learned Single Judge has given reference to the written statement filed by Nem Chand Jain in Civil S. No. 110/1987 which reads as under :

"L. Ram Chand purchased Shop Nos. 615-587 (new) and 724 (old) and started a business in the above said shop, in the ground floor, in the name of Messers Kedar Nath Ram Chand. This business was dissolved on Asadh Sudi 12, Sambat 1998. Thereafter the plaintiff, Shri Nem Chand and Shri Moti Lal started in partnership a cloth business in the name of Messers. Nem Chand and Bros. In the said shop No. 615-587, Lala Ram Chand let out the above shop to the firm M/s. Nem Chand and Bros. On Asadh Badi 12, Sambat 1998 at Rs. 25/ - per month. The business of Messers Nem Chand and Bros, was dissolved on 8th of July, 1956 and in its place the plaintiff, Shri Moti Lal and Shri Nem Chand started a business in the name of Messers Kedar NathRam Chand. This business was also carried on in the above mentioned shop. In the year 1959, Shri Attar Chand Jain separated from the business Messers Kedar Nath Ram Chand and defendant Nos. 1 and 2 continued the business in the name of Messers Kedar Nath Ram Chand in the said shop. In 1961, Shri Moti Lal, defendant No. 2 also separated himself from the business, Messers Kedar Nath Ram Chand. Thereafter the defendant No. 1 has also separated himself from the firm Messers Kedar Nath Ram Chand. The firm Messers Kedar Nath Ram Chand is in occupation of the ground floor of the premises i.e. Shop No. 615-587 as a tenant of defendant Nos. 1 and 2 and the parties have no right to eject or take possession of the shop from Messers Kedar Nath Ram Chand under the Delhi Rent Control Act, 1959, and they are only the Lessers of the shop. The premises Nos. 4343 to 4345 situated at Pahari Dhiraj, Sadar Bazar, Delhi, also in the joint Hindu family property and the plaintiff has not ncluded that property in the suit."

The learned Single Judge observed that though it was pleaded that Nem Chand also separated from the partnership business, there is no mention that it was let out to the objector, as such. In fact, in the earlier written statement that had been filed in the same suit, Nem Chand pleaded that after his brother Moti Lal separated from the business, he carried on the business himself. Learned Single Judge further observed that looking from other angle it could be seen that it was not pleaded by Nem Chand at any stage that objectors had let out the property in question. The learned Single Judge has also mentioned that one of the three brothers (co-owners) had left the firm and even if they were taken to be the tenants it must be held that unless there was a fresh contract, which is not even shown to be in existence, a new tenancy could not be created. In that view of the matter the objectors can have no right to sell the property.

9. Learned Single Judge also observed that Nem Chand has let out the property to the objectors being a co-owner of the same. Even this contention, in the peculiar facts, will have little say in the matter. Firstly, even if it be taken that there is such a letting during the pendency of the suit filed by the auction purchaser/ decree holder admittedly auction purchaser was one of the co-owners of the property. Section 52 of the Transfer of Property Act will apply with all its rigour. Not only that, a co-owner will not be in a position to create the tenancy without consent of the other co-owners it is also not pleaded or shown that Nem Chand, if at all, had taken permission of the other co-owners. Reliance has been placed in the case of Ram Gopal Sawhney v. Suraj Balram Sawhney and Sons and Ors., , that a co-owner cannot create a tenancy of joint property without the consent of the other co-owners. If one co-owner does so, others are not bound by that act.

10. Mr. Kapur, learned Counsel for objector also has placed a reliance on a judgment of the Apex Court in the matter Ram Chandra Verma v. Shri Jagat Singh Singhi and Ors., 1996 (1) AD SC 364. The other main grievance of the learned Counsel for the objector is that learned Single Judge ought to have given an opportunity to adduce the evidence. Learned Single Judge has dealt with this aspect of the matter in the totality of facts and circumstances of this case. It is not necessary to adduce evidence in this case. Learned Counsel for decree holder has placed reliance on the judgment of the Supreme Court in Silverlineforum Pvt. Ltd. v. Rajiv Trust and An., . The Supreme Court has observed that it is clear that Executing Court can decide whether the resister or obstructer is a person bound by the decree and if he refuses, the adjudication mentioned in Order 21 Rule 97(2) need not necessarily involve a detailed inquiry or collection of evidence. The Court can make the adjudication on admitted facts or even on averments made by the resister. In other words the question of permitting the party to adduce the evidence would primarily be decided on the facts and circumstances of each case.

11. The learned Single Judge in impugned judgment has carefully dealt with documents, submission and relevant case law, in our considered view no interference is called for in the impugned order.

12. EFA (OS) 3/2002 is accordingly dismissed as devoid of any merit. In the facts and circumstances, the parties to bear their own costs.