D.L. MEHTA, J.—This appeal is directed against the judgment and decree dated 3rd September 1986 passed by the learned District & Sessions Judge, Sikar in Civil Regular First Appeal No. 47/85, by which the decree of the trial court dated 7th February 1983 passed by the learned Munsiff, Sikar was confirmed. 2. Respondent-plaintiff instituted a suit against the defendant appellant. In para-7 of the plaint it was submitted that the disputed shop is in his exclusive possession. It was further submitted that on 7. 10. 77 the defendant-appellant placed additional lock on the shop. It was also submitted that the defendant appellant is interfering with his possession and is not allowing the plaintiff to enjoy the shop. Plaintiff appellant also prayed that the mandatory injunction may be issued against the defendant-appellant for the removal of the extra locks placed by him. It was further prayed that the prohibitory injunction should also be issued against the defendant-appellant restraining him from interfering with the possession of shop in future. He has also claimed damages at the rate of Rs. 100/-P. M. Defendant submitted that there was a joint tenancy. It was further submitted in yara-7 of the written statement that some of the goods of the defendants are lying there. He further asserted that some of the joint goods of the plaintiff and the defendant are lying there. Thus, he denied in para-7 the exclusive possession of the shop and submitted that there is a joint possession. He denied also the other allegations made in additional pleas. Some objections were also raised which are not very relevant for the determination of this appeal. Thus, he denied in para-7 the exclusive possession of the shop and submitted that there is a joint possession. He denied also the other allegations made in additional pleas. Some objections were also raised which are not very relevant for the determination of this appeal. After considering the pleadings of the parties, the following issues were framed by the court below: 1- vk;k oknh mÙkj okyh nqdku dk Lora= :i ls fefr psr kqDyk 9 lEor~ 2015 ls fdjk;snkj gks x;k vkSj oknh fdjk;k nsrk jgkA 2- vk;k izfroknh us mÙkj okyh nqdku ds nks rkys ceqftc en ua- 7 c;ku nkok yxk fn;s] bldk nkos ij D;k vlj gSA 3- vk;k oknh 100@& :- ekfld nj ls gtkZ izkIr djus dk vf/kdkjh gSA 4- vk;k oknh fMØh gqDe bErukbZ izkIr djus dk vf/kdkjh gSA 5- vk;k nqdku eqrnkfo;k dh dher nk;jh nkos ds fnu 15000@& :- Fkh blh dnj jde ij dksVZ Qhl isk fd;s fcuk nkok pyus ;ksX; ugha gksaA 6- vk;k nkok ekfy;r nqdku ds fygkt ls U;k;ky; gktk ds vf[r;kj lekvr ls ckgj gSA 7- vk;k izfroknh 100@& gtkZ [kkl oknh us izkIr djus dk vf/kdkjh gS\ 8- lgk;rk\ The evidence of both the parties was recorded by the court below. Both the courts below decreed the suit of the plaintiff. Aggrieved against the judgment and decree passed against the defendant-appellant by the Courts below, the defendant-appellant has submitted this second appeal before this Court. 3. This Court while admitting the appeal on 24th September 1986 framed the following substantial questions of law; 1. Whether even after making the express surrender by the plaintiff-respondent in the eviction suit regarding the tenancy rights in the disputed shop of 5th October 1977, the plaintiff was entitled to file the present suit ? 2. Whether the plaintiff-respondent could surrender his tenancy rights as a co-tenant in the suit shop without the consent of the defendant-applicant and even thereafter he could again acquire the same rights simply because the landlord could not get actual physical possession from the other co-tenant i.e. the defendant-appellant ? 4. It is an admitted position that the defendant-appellant Phool Chand and Khaju Lal plaintiff-respondent were the joint tenants of Babu Lal. Joint tenancy was created in the year 1955. The rent which was to be paid was Rs. 4. It is an admitted position that the defendant-appellant Phool Chand and Khaju Lal plaintiff-respondent were the joint tenants of Babu Lal. Joint tenancy was created in the year 1955. The rent which was to be paid was Rs. 35/- P.M. It is also an admitted position that both the parties to this litigation could not continue the business as such, they entered into an agreement on 8th April 1958, Vide Ex. 1, agreement dated 8th April 1958 it was agreed upon that part of the premises will be in the exclusive possession of the defendant-appellant Phool Chand and remaining part will be in the exclusive possession of plaintiff Khaju Lal. It was also agreed upon that the joint tenancy shall continue. Rent was also divided between the parties and it was agreed that Khaju Lal will pay Rs. 5/- to Phool Chand defendant appellant. It was also agreed upon that defendant-appellant will pay his share of Rs. 30/- and will make payment to the Babu Lal. It was also agreed upon between the parties that if any one of the parties vacates the shop he will hand over the vacant possession of his part to the other co-tenant and the other co-tenant will pay the whole rent. This agreement continued upto 5.3.61. Defendant Phool Chand made a complaint to the plaintiff-respondent that his share of the rent is on the higher side. Ex. 2 agreement was entered into between the parties and it was agreed that defendant appellant shall pay Rs. 22 and 8 Annas as his share of the rent to Khaju Lal and Khaju Lal shall pay Rs. 12 and 8 Annas of his share and make the payment to the landlord. Joint tenancy continued. Land lord Babu Lal filed a suit against both the defendants for eviction on number of grounds which are not very relevant for the purpose of determination of the appeal. The suit was initially contested by both the parties jointly. On 15.10.77 the Commissioner inspected the premises and submitted the report to the Court in that suit, which is Ex. 3. 5. At the time of hearing of this appeal application under Order 41 Rule 27 was submitted by the present appellant. He wanted to produce before the Court the copy of the compromise entered into between the land lord Babu Lal and the present plaintiff- respondent, Khaju Lal. 3. 5. At the time of hearing of this appeal application under Order 41 Rule 27 was submitted by the present appellant. He wanted to produce before the Court the copy of the compromise entered into between the land lord Babu Lal and the present plaintiff- respondent, Khaju Lal. He also wanted to produce the site plan. Mr. Mandhana, counsel for the respondent submitted that he is having no objection if the defendant-appellant is allowed to submit the document in the court, provided he is allowed to submit two documents dated 7.12.77 in the court which are the proceedings of the order of the Court. Mr. Mandhana accepted the documents produced by the defendant appellant and similarly, Mr. Garg accepted the documents submitted by the plaintiff respondent in the course of appeal. Both the parties have admitted the documents produced by each other as such, no additional oral evidence was necessary. Compromise dated 5.10.77 has been marked as Ex. HA, 1 and the site plan has been marked as Ex. HA, 2. Similarly, the proceeding has been marked as H.P.I and the order has been marked as H.P. 2. Both the courts below have given a concurrent finding in favour of the plaintiff-respondent that on the date of filing the suit he was in the exclusive possession of the part of the premises which came to his share vide Ex. 1 dated 8.4.1958. 6. I will deal with the first substantial question of law formulated by the court referred to above. 7. The plea of surrender was not taken by any of the parties. In the pleadings, there is no issue on this point also. Appellant has raised this point for the first time in the second appeal and has also produced Ex. H.A. 1 dated 5.10.77 to show that the plaintiff-surrendered the part of the joint premises in favour of the land lord vide Ex.HA/1. Ex.HA/1 is a compromise petition which was filed by the then defendant Khaju Lal who is the plaintiff in this case and submitted to the court that he is surrendering his right of tenancy in favour of the landlord. It was also mentioned therein that the land lord has accepted the surrender and has taken over the possession of the premises which was exclusively in the possession of Khaju Lal under an agreement dated 8.4.58. It was also mentioned therein that the land lord has accepted the surrender and has taken over the possession of the premises which was exclusively in the possession of Khaju Lal under an agreement dated 8.4.58. This petition was contested by the present appellant in that suit and the court vide order dated 7.12.77, marked as H.P./2 rejected the compromise application and further directed to the plaintiff Babu Lal to deliver possession back to Khaju Lal. In the proceeding of the suit filed by Babu Lal marked as Ex. P. 1 it has been specifically mentioned therein that the compromise cannot be verified and landlord Babulal should hand over the keys to the plaintiff- respondent Khaju Lal. The question has been formulated by the court on the basis of the ground taken in second appeal, though, it was not raised in the pleadings and there was no issue in the court below. 8. Mr. Mandhana, counsel for the plaintiff- respondent submits that this substantial question does not arise at all as both the courts have considered the pleadings of the parties and the issues framed. He submits that there was no issue, no pleadings and the Court should recall the formulation of this question. After admitting Ex. HA/1, dated 5.10.77 this point can be argued without any evidence whatsoever and it is not proper to recall the question which has been formulated by my brother Honble Justice Bhargava. 9. In the case of Sher Singh vs. Kalu Singh (1) the Court held that where a co-tenant relinquishes his undivided share and on such relinquishment his sons succeeds and where they are recognised by the landlord as tenants instead of their father, the arrangement is valid." This case is not of much relevance in the instant case as the property of which there was a co-tenancy was of occupancy land. Occupancy agricultural land can be divided and if the division is also accepted by the landlord then automatically one of the persons who had the share in the occupancy land can relinquish his part. 10. Occupancy agricultural land can be divided and if the division is also accepted by the landlord then automatically one of the persons who had the share in the occupancy land can relinquish his part. 10. In the case of Konijeti Venkayya vs. Thammana peda Venkata Subbarao (2) their Lordships held as under:- "The fact that common property has not been divided by metes and bounds and allotted in severalty to the co-sharers does not stand in the way of the interest of one co-sharer being conveyed to a stranger or another co-sharer. The interest of a co-sharer in common property can be sold, mortgaged or leased to another co-sharer or to a strager, Sections 7,8 and 44 of the Transfer of Property Act recognise the validity of such transfers. It is not the law that one co-sharer can only release his interest in favour of the other co-sharers. There can be a conveyance of the interest of one co-sharer to another co-sharer or to all the remaining co-sharer with the statutory and other covenants applicable to such conveyance. A lessee from a co-sharer is entitled to the rights of his lessor and can even enforce a partition if it is necessary to give effect to his lease. The sole ground on which partition may be allowed or refused is the ground of convenience. As there can be a valid lease of his interest by a co-sharer in favour of another co-sharer, it is open to the lessee to surrender his interest in the lease to his lessor under section 111(e) of the Transfer of Property Act. On such surrender the lease would stand terminated." 11. In the case of Devu Subhano v. Badruddin Hussain (3), their Lordships were considering the provisions of Bombay Tenancy and Agricultural Lands Act as well as the provisions of Section 111. Their Lordships held as under:- "There is nothing in Section 44 of the Transfer of Property Act to hold that under that section the surrender will not be counted. Nor is there anything in the provisions of Clause (d) of S. 111 of that Act to support the contention that one of the tenants or lessees of a joint tenancy cannot surrender his right" 12. Nor is there anything in the provisions of Clause (d) of S. 111 of that Act to support the contention that one of the tenants or lessees of a joint tenancy cannot surrender his right" 12. In the case of Lala Shyamlal Debidin Kalar V. Gond Singh (4), their Lordships have held as under:- "A co-tenant is entitled to cultivate the entire holding and has the right to pay its rent if he so desires. A co-tenant cannot surrender an undefined portion of an entire holding to the detriment of his co-tenants. The landlord therefore, cannot eject a co-tenant from an undefined portion of the holding. A co-tenant is therefore, entitled to the possession of the whole holding." 13. The ratio decidendi in this case is that one or two or more co-tenants is at liberty to transfer to the land-lord the lights which he holds in the land against the landlord. This case is to a great extent applicable in the facts and circumstances of this case. The right to transfer the co-tenancy right exists in the co-tenant. The question which needs consideration is whether landlord accepts the transfer and treats the transferee as a co-tenant is altogether a different question. Tenancy creates the vested right and contractual right between the parties, i.e. landlord and the co-tenants. Landlord may decline to accept the transferee as a co-tenant on number of grounds including the ground that there is no security for the payment of future rent. The principle laid down cannot be applied in the instant case as the question of merger of right of co-tenancy in the landlord is not here in the instant case. In this respect the case cited by Mr. Garg is distinguishable. 14. Mr. Garg has also cited before me the case of Mubarak Hussain v. General of Evacuee Property, New Delhi (5), His Lordship has held as under:- "It is well settled that joint tenants are not only tenants in respect of their shares but they are tenants of the entire area and in cases of joint tenancy each tenant has a right to occupy the entire leased property. Conseque-ntly, the position is that on surrender of the rights by one of the co-tenants the other co-tenant has a right to recognise the surrender or to insist on the performance of the original lease deed. Conseque-ntly, the position is that on surrender of the rights by one of the co-tenants the other co-tenant has a right to recognise the surrender or to insist on the performance of the original lease deed. But there is nothing in law to compel one to hold that a co-tenant should not be held bound by the deed of surren-der that he executes:- He had created a permanent lease jointly in favour of his two sons N and W.N surrendered his rights to H who accepted it. On Ns migration to Pakistan, proceedings under S. 7, Administration of Evacuee Property Act were started. In those proceedings the Custodian-General held that the surrender by N was not valid. Held, that it was for W the co-tenant, to elect whether to assert his right to the entire demised land on the ground that the surrender by N alone did not bind him or to accept the surrender made by his brother. No rights in the demised property, however, had been left in N who had surrendered his rights to his father. That being so Ns share in property could not vest in the custodian. It was no concern of the Custodian Department whether the property after surrender by N vested in H or in W as both of them were admittedly non-evacuees. Therefore, the decision of the Custodian, Department on this point was not in accordance with law and this error was apparent on the face of the order." 15. This is a case in which the co-tenancy rights of one of the tenant who has surrendered the right and interest of co-tenancy in favour of his father was challenged by the Custodian Department. Their Lordships considered the proposition of law that the Custodian Department does not come in the picture at all. The objection can be raised by the co-tenant or the land-lord. Co-tenant in the instant case agreed to accept the other tenant, namely, his father co-tenant in place of his brother. No objection was raised by the landlord. Custodian Department cannot raise any objection being a stranger. 16. Mr. The objection can be raised by the co-tenant or the land-lord. Co-tenant in the instant case agreed to accept the other tenant, namely, his father co-tenant in place of his brother. No objection was raised by the landlord. Custodian Department cannot raise any objection being a stranger. 16. Mr. Garg has also cited before me the case of Rasappa Gounder v. G.N. Ramaswami (6), in which it has been held as under:- "There is nothing in the T. P. Act or the T. N. Cultivating Tenants Protection Act prohibiting the surrender of interest of one of the lessees in favour of the lessor. In such a case the proportionate interest of the lessee is vested in the lessor and the lessor or the remaining lessees would be entitled to claim a partition of their respective interest." 17. The question before me for consideration is whether the co-tenant can surrender his interest in the lease hold premises in favour of lessor. Mr. Garg has submitted that in a case where one of the co-tenant surrenders his interest to the lessor, the lessees interest is enlarged and the lessor does not derive any right or interest at all. 18. Mr. Mandhana appearing on behalf of the respondent submitted that in the instant case it is not necessary to consider this point as the surrender has not taken effect. A lease is not a mere contract but is a transfer of interest in immovable property in consideration of the payment of money by the transferee to the transferor. The lease hold interest is like any other interest in immovable property capable of being inherited or transferred. Being in a state of inheritance, the interest of the lessee rests on his executors and legatees. 19. Ordinarily I am of the opinion that one of the lessees can surrender his interest in the lease-hold premises in favour of the lessor or any one in which the transferee of the lease-hold right will be entitled to call for partition of the interest alone. However, I will make it clear that the lease hold interest can be transferred by the co-lessee with the consent of the lessor, because, he may not accept the transferee on number of grounds including the ground of unsecured payment of rent. However, I will make it clear that the lease hold interest can be transferred by the co-lessee with the consent of the lessor, because, he may not accept the transferee on number of grounds including the ground of unsecured payment of rent. However, it is not necessary for me to determine in this case whether the co-lessee can transfer his share to the stranger who is neither the co-tenant nor the lessor. In the instant case, in fact, vide Ex 1 dated 8. 4. 58 the lease hold premises were divided between the co-tenant and they were in exclusive occupation of the part which came to their share. There was an agreement between the co-tenants that in case any of the co-tenant will like to surrender his share then he will be bound to transfer his share or interest in the lease to the other co-tenant. This agreement is having a binding effect between the parties to this litigation inter se as it creates a future right in one of the co-tenants in case the other co-tenant wants to surrender his share, right or interest in the leased out property. This agreement may enlarge the right of the co-lessee to occupy and enjoy the other part of the leased property which is going to be surrendered by the co-tenant. The co-tenant can claim as of right that in case of surrender by co-tenant his right or interest or share in the leased property should be enlarged. 20. Section-44 deals in the matter of transfer by one of the co-owner. There is no provision in the Transfer of Properly Act similar to Section 44 providing guidelines of law in the matter of transfer by one of the co-tenant. Transfer of Property Act is silent on this aspect. There is no specific provision by which the transfer of right of co-tenant can be restricted. Co-tenancy is an agreement or a contract between co-tenants or more than one lessees. The principles laid down in Section 44 cannot be followed in the case of transfer by one co-tenant to the stranger who is not a parly to the contract. There may be a position where the property cannot be partiable property. Co-tenancy is an agreement or a contract between co-tenants or more than one lessees. The principles laid down in Section 44 cannot be followed in the case of transfer by one co-tenant to the stranger who is not a parly to the contract. There may be a position where the property cannot be partiable property. For illustration, there is a shop of 6 x 8 which is in the co-tenancy of A and B. A, co-tenant in collusion with the lessor may surrender his share in favour of the lessor to deprive B of his right of enjoyment of the property particularly in the shop and carrying on business. A and B carry on business jointly but B can be deprived from the right of carrying on business in lease hold shop, which is not partiable. In such circumstances, the beneficial legislation will have to be taken into consideration like Premises and Rent Control Act and other legislations and it should be held that in such cases lease hold right of the co-tenant is enlarged and may be used to defeat the collusion between co-tenant and the lessor for the purpose of harming the interest of other co-tenant. Section-111 (e) of the Transfer of Property Act provides that the lease hold rights and interest under the lease can be surrendered by mutual agreement in favour of the lessor. Section-111 (f) provides that the lessee can surrender by implication in favour of the lessor. But, none of the section deals with the surrender by a co-tenant only and, for this purpose also Section 111 is also silent on this point. I have tried to lay down my hand on the law and also sought the assistance of the learned members of the Bar, but, I could not find out any provision in the Transfer of Property Act dealing with such contingencies. 21. For the reasons mentioned above, I am of the view that some times the rights of one of the lessees in the lease hold property may be enlarged on account of surrender or intended surrender by one of the co-lessees on the con-dition that the lessee who is getting the enlarged right will have the same additional liabilities which the co-lessee who is surrendering it. This additional liability will be because of the enlargement of his lease. 22. This additional liability will be because of the enlargement of his lease. 22. Now the question before me is whether in the facts and circumstances of this case what should be the right of the present appellant. Ordinarily, if there is a surrender then naturally the rights of the appellants should enlarge and he can claim that he should be allowed to enjoy the complete leased out property on accepting the additional liability with the intending co-tenant who was surrendering his right held in it. Without application of the law as discussed by me this right is also created in the appellant by virtue of Ex. 1, the agreement dated 8. 4. 1958. 23. This case has been complicated because of the findings in other suit in which the lessor filed a suit for eviction against the present appellant as well as against the present respondent, In that suit compromise petition Ex. HA 1 dated 5.10.77 was submitted by Khaju Lal respondent and Babu Lal who was lesser plaintiff in that case, In that application it has also been mentioned that the possession has been handed over to the landlord. The present appellant contested the application and submitted to the court that the compromise should not be verified as it will adversely affect his right. The reply which was filed by the present appellant in that case is not before the Court. The Court rejected the application Ex HA. 1 vide its order dated 7.12.77, Ex. H.P. 2 and proceedings Ex. H.P. 1. During the pendency of that suit which was filed by the lessor against the present appellant as well as the respondent the court directed that the key of the premises which were in the exclusive possession of the respondent should be handed over by the landlord to the respondent co-tenant who entered into compromise. In consequence of that the present respondent again came into possession of the part of the lease hold property which was let out jointly to both the co-tenants. The order passed by the trial court became final and no appeal or revision has been filed against the said order. It is also admitted position that the compromise was not verified by the court below and the suit of the plaintiff lessor Babu Lal was dismissed in toco. The order passed by the trial court became final and no appeal or revision has been filed against the said order. It is also admitted position that the compromise was not verified by the court below and the suit of the plaintiff lessor Babu Lal was dismissed in toco. Plaintiff Babu Lal has filed the appeal in that case which is pending before the learned District Judge, Sikar. 24. The surrender has not been accepted so far by the Court and on the contrary the Court has directed that the key of the part of the lease hold property which was in exclusive possession of Khaju Lal should be handed over to the respondent Khaju Lal. In such circumstances an application which was moved before the court below will merge in the order of the court and cannot be treated as subsisting application or surrender unless the order dated 7th December, 1977 is set aside. That order can only be set aside in that suit and till it is set aside it is having a binding force against both the parties. 25. The contingency like the present suit may arise some times. One of the co-tenants may surrender his rights to the lessor to harm the interest of other co-tenants. Surrender can be jointly made and it cannot be an individual act. If one of the co-tenants surrenders his interest in the property then the other co-tenant cannot be harmed. In such circumstances also the interest of the lessor has to be safe-guarded in the matter of the payment of the rent. The position of the co-tenant in such circumstances will be that if one of the co-tenants surrenders his right and interest then the interest of the person who is surrendering his right will merge in the interest of the other co-tenant and he will be liable just like a guarantor in matter of the payment of the rent. He will have the right to get the amount paid by him to the other co-tenant on account of rent or lease from the co-tenant or a lessee who has enjoyed the complete property at his exclusion. In the instant case, the surrender in fact, cannot be considered as a surrender unless the order dated 7. 12. 77 Ex. H. P. 1 and H. P. 2 is set aside. Mr. In the instant case, the surrender in fact, cannot be considered as a surrender unless the order dated 7. 12. 77 Ex. H. P. 1 and H. P. 2 is set aside. Mr. Garg submits that these orders were passed as interlocutory orders in that suit and have automatically come to an end after the decision of the suit. That is not the correct position. The court of law passing a decree in that suit has not directed that the part of the premises which were in the possession of Khaju Lal should be allowed to be retained by the landlord who was a party in that suit. The property is still in the possession of Khaju Lal under this order and that the Court while deciding that suit has not passed any other such direction. On the contrary, the suit which was filed by the landlord for the possession of whole premises i. e, the premises which is in possession of Phool Chand appellant as well as Khaju Lal has been dismissed. The decision has become final unless reversed by the court in that suit, in that case the appeal is pending before the District Judge, Sikar and that judgment in which the present appellant as well as the present respondent were the parties is binding and the compromise or the surrender has not been accepted by the Court. Apart from that it has created some rights and liabilities also in favour of the landlord who is not a party to this appeal. It is true that the landlord came into possession under the compromise but that compromise was not accepted and the court directed the landlord to handover the possession by Ex. H.P. 1 and H.P. 2 dated 7.12.77. Thus, Khajulal plaintiff came into possession on account of the order dated 7.12.77. The present appellant has not been given possession in any way under any contractual obligation or otherwise. As such, it cannot be said that he is in the possession. Both the courts below were justified in passing the decree in favour of Khaju Lal and the court was justified in passing the decree as the order dated 7.12.77 has not been set aside and no decree has been passed in favour of the landlord. As such, it cannot be said that he is in the possession. Both the courts below were justified in passing the decree in favour of Khaju Lal and the court was justified in passing the decree as the order dated 7.12.77 has not been set aside and no decree has been passed in favour of the landlord. It is also true that in such cases, the person who commits wrong should not be benefitted and the court while deciding the appeal in the case of Babu Lal v. Khaju Lal and Phoolchand should take note of it and should decide the matter accordingly. 26. I do not find any force in the submissions made by the appellant in this appeal. The appeal is dismissed. Three months time is allowed to comply with the decree passed by the court.