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2002 DIGILAW 625 (PNJ)

Kulwant Rai v. Des Raj

2002-07-02

ASHUTOSH MOHUNTA

body2002
Judgment Ashutosh Mohunta, J. 1. The present appeal filed by Kulwant Rai and Harbans Lal, plaintiffs, is directed against the judgment and decrees dated September 13, 1986 and October 27, 1990, passed by the Addl. Senior Sub Judge, Barnala, and the Addl. District Judge, Sangrur (Camp at Barnala), respectively, whereby the suit filed by them seeking declaration to the effect that they are in possession of the shop in dispute as tenants under defendants Nos. 10 to 18, and for restraining the said defendants from taking possession of the said shop from the plaintiffs, was dismissed. 2. In brief the facts of the case are that defendant Nos. 1 to 18 were co-owners of certain properties, including the shop in dispute. Ram Chand, one of the co-sharers of the said properties, filed a suit for partition of the said properties in the year 1950. A preliminary decree (Ex.P4) was passed on October 24, 1951. In the meantime Ram Chand died and his legal representatives applied for passing of a final decree with respect thereto. The plaintiffs were inducted into the shop in dispute by Des Raj (defendant No. 1), Jangir Chand (defendant No,2) and Sohan Lal (since dead). The legal representatives of Sohan Lal are defendant Nos.3 to 9. An eviction application was filed by defendant Nos.l to 9 against the plaintiffs. The said application was dismissed by the Rent Controller, Barnala, in the year 1974. The appeal against the order of the Rent Controller was also dismissed by the Appellate Authority on March 15, 1976. The final decree for partition inter se the defendants, on the basis of the preliminary decree, was passed by the learned Sub Judge, Barnala on January 23, 1981 (Ex. P5) and the shop in dispute fell to the share of defendant Nos. 10 to 18. It was alleged by the plaintiffs that the partition proceedings inter se the defendants were collusive and the shop in dispute was got fallen to the share of defendant Nos. 10 to 18 by way of collusiveness. According to the plaintiffs, as they were not party to the partition proceedings, the said decree was not binding upon them. Further, it has been alleged that after the shop fell to the share of defendant Nos. 10 to 18 by way of collusiveness. According to the plaintiffs, as they were not party to the partition proceedings, the said decree was not binding upon them. Further, it has been alleged that after the shop fell to the share of defendant Nos. 10 to 18, the plaintiffs became the tenants of the shop in dispute under the said defendants and the plaintiffs could only be ejected from the shop in dispute through the instrumentality of the Rent Controller under the provisions of the East Punjab Urban Rent Restriction Act. 3. Defendant Nos. 10 to 18 contested the suit filed by the plaintiffs. The plea taken by them was that there was no relationship of landlord and tenant between them and the plaintiffs as they had never inducted the plaintiffs into the shop in dispute as tenants. Thus, according to the said defendants, the provisions of the East Punjab Urban Rent Restriction Act were not applicable. Further, it was alleged by defendant Nos. 10 to 18 that the tenancy created in favour of the plaintiffs was hit by the provisions of Section 52 of the Transfer of Property Act. 4. On the pleadings of the parties, the trial Court framed the following issues:- 1. Whether the defendants have become the tenants under defendants Nos. 10 to 18? OPP. 2. Whether the plaintiffs are entitled to the injunction prayed for? OPP. 3. Whether the suit is barred by the principles of res judicata? OPD. 4. Whether the plaintiffs are estopped by their act and conduct from filing the present suit? OPD. 5. Whether the Civil Court has no jurisdiction to entertain and try this suit? OPD. 6. Whether the final decree dated 23.11.1981 is the result of collusion between the defendant inter se ? If so, what effect? OPP. 7. Relief. The trial Court decided issue Nos. 1, 2 and 6 against the plaintiffs. Issue Nos.3 to 5 were not pressed by the defendants. Ultimately, the suit of the plaintiffs was dismissed. The appeal filed by the plaintiffs was also dismissed by the learned Additional District Judge, Sangrur (Camp at Barnala) vide judgment and decree dated October 27, 1990. Hence the present regular second appeal, which has been filed by the plaintiffs with the prayer that the judgments and decrees passed by the Courts below be set aside. 5. The sole question for determination in this is: Whether defendant Nos. Hence the present regular second appeal, which has been filed by the plaintiffs with the prayer that the judgments and decrees passed by the Courts below be set aside. 5. The sole question for determination in this is: Whether defendant Nos. 10 to 18, in whose share the shop in dispute had come in the final decree, are entitled to recover the possession of the same from the plaintiff? 6. It has been contended by the learned counsel for the plaintiff-appellants that there was relationship of landlord and tenants between defendant Nos. 10 to 18 and the plaintiffs as the said defendants had stepped into the shoes of defendant Nos.l to 9 after the partition of the property had taken place and they had derived their title from defendant Nos. 1 to 9 for the purpose of Section 2(2) of the East Punjab Urban Rent Restriction Act. Thus, according to the learned counsel, the plaintiffs could not be ejected from the shop in dispute in the execution proceedings and the provisions of the East Punjab Urban Rent Restriction Act are applicable in their case. 7. Mr. Rajesh Gupta, learned counsel for respondent Nos. 10, 11, 12 and 14, had controverted the contention raised by the learned counsel for the plaintiff-appellants. According to him, there had never been relationship of landlord and tenant between defendant Nos. 10 to 18 and the plaintiffs as the said defendants were not the descendants of defendant Nos. 1 and 2 or Sohan Lal (deceased). Thus, there never existed the relationship of landlord and tenant between them. 8. I have heard learned counsel for the parties and with their assistance have gone through the evidence on record and the case law. It has come on record that the plaintiffs had been inducted into the shop in dispute as tenants by defendant Nos. 1 and 2 and Sohan Lal, predecessor-in-interest of defendant Nos.3 to 9 in the year 1962, when the preliminary decree in the suit for partition filed by Ram Chand had already been passed, specifying the definite shares of the co-shares. Defendant Nos. 10 to 18 were not the descendants of either Sohan Lal or defendant Nos.l and 2. Defendant Nos. 10 to 18 had never inducted the plaintiffs into the shop in dispute. Defendant Nos. 10 to 18 were not the descendants of either Sohan Lal or defendant Nos.l and 2. Defendant Nos. 10 to 18 had never inducted the plaintiffs into the shop in dispute. As per the explanation attached to Section 52 of the Transfer of Property Act, the pendency of the suit shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding and to continue until the suit has been disposed of by a final decree. Thus, any act done during the pendency of the suit shall be hit by the provisions of Section 52 of the Transfer of Property Act, unless such a decree is found to be collusive in nature. In the present case, the suitfor partition was filed in the year 1950. The preliminary decree was passed on October 24, 1951. The final decree was passed in the year 1981. Thus, in the present case, the partition proceedings shall be deemed to have continued for the year 1950 to 1981. Therefore, the tenancy created by defendant Nos. 1 and 2 and Sohan Lal, predecessor-in-interest of defendant Nos.3 to 9, in the year 1962 cannot bind defendant Nos. 10 to 18 in whose share the shop in dispute had come in the final decree passed in the year 1981. The preliminary decree with regard thereto was passed as back as 1951. In Ram Sarup Sant Ram Aggarwal v. Chanan Singh, (1964)66 P.L.R. 832, it was held as under:- "When land, jointly owned, is leased out by one of the co-shares, and the other cd-sharer obtains a decree for partition, the tenant can be ejected in execution. The lessee cannot contend that he is the tenant of the whole land by virtue of the lease deed and is thus protected against ejectment. A tenant let on the land by one of the co-sharers does not ipso facto become the tenant of the other co-sharers. It is of course open to the other co-sharers to adopt the tenant let on the joint land by one of the co-sharers." 9. A tenant let on the land by one of the co-sharers does not ipso facto become the tenant of the other co-sharers. It is of course open to the other co-sharers to adopt the tenant let on the joint land by one of the co-sharers." 9. Similarly, in Subramonia Lyer v. Subbayya Mudaliar, A.I.R. 1961 Kerala 335, it was held by the Kerla High Court that Section 52 of the Transfer of Property Act applied to the suit for partition and a tenant inducted by a party, during the pendency of the that suit, was bound by the decree. 10. In the present case it cannot be said that the decree for petition obtained by the defendants was a collusive one. The suit for partition was filed by Ram Chand in the year 1950. The preliminary decree was passed in the year 1951. The plaintiffs were inducted as tenant in the shop in dispute in the year 1962. The final decree for partition proceedings in the present case continued for more than 30 years. The plaintiffs were inducted as tenants after about 12 years of the suit for partition which was filed in the year 1950. The defendants could not anticipate when the suit was filed in the year 1950 that the plaintiffs would be inducted as tenants in the shop in disputed after 12 years and the collusive decree would be obtained from the Court for their ejectment. Thus, the induction of the plaintiffs by defendant Nos. 1 and 2 and Sohan Lal in the shop in dispute during the pendency of the suit for partition was hit by Section 52 of the Transfer of Property Act. Defendant Nos. 10 to 18 could not be debarred from ejecting the plaintiffs from the shop in dispute, as they were not parties to the induction of the plaintiffs in the shop in the dispute. 11. Moreover, in the present case there is concurrent finding of fact, which cannot be gone into in the second appeal. 12. In the light of the above discussion, I find no merit in the present appeal. It is, accordingly, dismissed. However, there shall be no orders to costs.