M/S. KARTA RAM RAMESHWAR DASSversusRAM BILAS AND ORS.

                M/S. KARTA RAM RAMESHWAR DASS                                   A
                                     v.
                          RAM BILAS AND ORS.

                          NOVEMBER 23, 2005

               [B.N. AGRAWAL AND A.K. MATHUR, JJ.]                              B

     Rent and Eviction:

      Suit of partition of a shop by the co-owners, portion of which occupied
by the tenant-Objection against partition by tenant-Sustainability of-Held:     C
Not sustainable-Tenant cannot object to partition unless he shows that same
was not bona fide and was intended to overcome the rigours of rent control
laws which protected eviction of tenants.

      Partition of a shop by the co-owners, portion of which occupied by the D
tenant-High court ordering recovery of possession from the tenant of the
portion which fell to the share ofplaintiff-Correctness of-Held: Not correct
as tenant can be evicted only in accordance with law under the provisions of
rent control legislation-Haryana Urban (Control of Rent and Eviction) Act,
1973.
                                                                                E
      The shop in question was originally owned by one R. On his death,
his two sons plaintiff and C inherited the same. C rented out the front
portion of the shop with the consent of plaintiff. On the death of C, h'is
heirs sold half share in the shop. Thereafter, plaintiff filed a suit for
partition of his half share in the shop. Trial Court passed a preliminary
decree in favour of plaintiff and appointed a local commissioner to effect      F
partition. His report stated that the division of shop must be done
horizontally i.e. in such a way that one party would get the front portion
opening in the Mandi and other would get its back portion. Plaintiff raised
objection to the report stating that the shop should have been partitioned
longitudinally by constructing a wall through and through. Appellant-           G
tenant raised objection that by erecting a wall, his tenanted premises would
be divided into 2 portions which would amount to evicting him without
following due process of rent law.

     Trial Court passed final decree directing partition of the shop
                                    415                                         H
                                                                                      t'




    416                     SUPREME COURT REPORTS [2005) SUPP. 5 S.C.R.

A longitudinally by erecting middle wall through and through but allowing
    tenant to continue to occupy the shop let out to him. Appellate Court
    upheld the order of trial court. On appeal, High Court upheld the decree
    in favour of plaintiff, however directed the tenant to be evicted from that
    portion of tenanted premises which had fallen to the share of plaintiff.
B   Hence these appeals.

          Partly allowing the appeals, the Court

            HELD: 1.1. 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
C   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 -0f tenanted premises which
    had fallen i11 their respective shares by filing separate proceedings .for
D   eviction under rent control laws on the grounds enumerated thereunder.
                                                                        1420-8-C)

          1.2. 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
E   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 tenar.t
    of that portion of the tenanted premises which had· fallen to the share of
    the plaintiff. The trial court was quite justified in directing that possession
F   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 thereunder. [420-D-E)

         Sk. Sattar Sk. Mohd Choudhari v. Gundappa Amabadas Bukate, AIR
    (1997) Supreme Court 1998, relied on.
G
         CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 6986-6987
    of 2005.

         From the Judgment and Order dated 4.10.2002 of the Punjab and
    Haryana High Court in R.S.A. Nos. 613 and 837 of 1981.
H
       KARTARAM RAMESHWAR DASSv. RAMBILAS [B.N.AGRAWAL, J.)417
                                                           ...
         Neeraj Kumar Jain, Aditya Kumar Chaudhary and Ugra Shankar Prasad          A
   for the Appellants.

        Amrit Lal Jain, D.D. Gupta, Pankaj Jain, P.N. Puri and Ms. Abha R.
   Sharma (NP) for the Respondents.

         The Judgment of the Court was delivered by                                 B
         B.N. AGRA WAL, 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
                                                                                    c
   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 - 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 Mis. Karta Ram Rameshwar Dass defendant No. 2 with the consent and D
    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 - 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 E
   Yashpal, the purchaser, and the finn 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. ii1
    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 F
   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 G
   parties and partitioning the shop horizontally by givirig 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 H
    418                      SUPREME COURT REPORTS [2005) SUPP. 5 S.C.R.

A   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. l, who is purchaser from Chet Ram,
    took the stand that the objections to the local commissioner's report filed by
B   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
C   to him unless and until he is evicted therefrom by taking recourse to the
    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. l. The tenant-firm - defendant No. 2 filed a cross objection in the appeal
    filed by the legal representatives of Jai Narain. The appellate court upheld the
D   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. I - 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
E   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.

F          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 pos!iession from it passed by
G   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.
H                                                                                        ...
                                                                                          )
   KARTA RAM RAMESHW AR DASS v. RAM BILAS [B.N. AGRAWAL, J.] 419

       In support of their submissions, both the parties have relied upon A
 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 B
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 l2Yz' fell in the share of Shaikh Sattar whereas the remaining
portion in the share of Shaikh Jaffar. Both the brothers intimated the tenant C
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 detennined 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 D
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 E
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 F
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 G
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 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 H
         420                     SUPREME COURT REPORTS [200S] SUPP. S S.C.R.

     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
     B   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
     C   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 ~enanted
         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
     D   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 evietion
         under the Act, and in ordering for recovery of possession from the tenant of
     E   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.

     F         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 wcant
         possession of the portion of the property falling to the share of the plaintiff
         pas 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 owu costs.
     G
         D.G.                                                     Appeals partly allowed.


'"