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2009 DIGILAW 1312 (PNJ)

Gurcharan Singh v. Dharam Singh

2009-08-04

SURYA KANT

body2009
JudgmentJudgment Surya Kant, J. 1. In this Revision Petition under Article 227 of the Constitution of India, the petitioner seeks to set aside the order dated 11.10.2006 passed by the Additional Civil Judge [Senior Division], Dasuya-cum-Executing Court whereby his objections have been dismissed, as well as the judgment dated 12.09.2007 passed by the learned Additional District Judge, Hoshiarpur, dismissing the petitioners appeal filed against the afore-stated order. 2. The undisputed facts may be noticed briefly. 3. The petitioner was inducted as a tenant vide rent note dated 17.12.1985 in a shop situated at Old Bank Road, Dasuya, by Gian Singh who was co-owner of the premises along with his brother Dharam Singh. The petitioner-tenant is protected and governed by the East Punjab Urban Rent Restriction Act, 1949 . 4. The joint properties owned by respondent No. 1 and his brother Gian Singh were later on partitioned through a civil Court decree dated 4.1.2003 and the demised premises came to the share of respondent No. 1 Dharam Singh. 5. Respondent No. 1 filed an execution application for implementation of the partition decree dated 4.1.2003 and obtained a Warrant of Possession, besides a Local Commissioner, to put him in actual physical possession of the subject property. When the petitioner - tenant came to know, he immediately filed an objection application, inter alia, claiming protection under the Rent Act, but the same has been turned down by the Executing Court vide its impugned order dated 11.10.2006, which has been further upheld by the learned Additional District Judge also, judgment dated 12.9.2007. 6. Aggrieved, the petitioner-tenant has approached this Court. 7. The solitary question which arises for consideration is, as to whether a tenant under the Rent Act, can be evicted/dispossessed in execution of a partition decree passed between the joint owners ? 6. Aggrieved, the petitioner-tenant has approached this Court. 7. The solitary question which arises for consideration is, as to whether a tenant under the Rent Act, can be evicted/dispossessed in execution of a partition decree passed between the joint owners ? The issue has been authoritatively settled by the Honble Supreme Court in M/s Karta Ram Rameshwar Dass v. Ram Bilas & Ors., 2006(1) RCR(Civil) 23 : 2005(2) RCR(Rent) 643 : 2006[1] SCC 125, holding as follows :- "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 rigours 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 of tenanted 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 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 eviction under the Act, and in ordering for recovery of possession from the tenant of 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". 8. In the light of what has been held in M/s Karta Ram Rameshwar Dasss case [supra], no fault can be found with the partition decree dated 4.1.2003 in terms whereof respondent No. 1 has become owner-cum-landlord of the petitioner-tenant for all intent and purposes. 8. In the light of what has been held in M/s Karta Ram Rameshwar Dasss case [supra], no fault can be found with the partition decree dated 4.1.2003 in terms whereof respondent No. 1 has become owner-cum-landlord of the petitioner-tenant for all intent and purposes. However, the impugned orders dated 11.10.2006 and 12.9.2007 rejecting the petitioners objection against his physical dispossession from the demised premises in purported execution of the partition decree dated 4.1.2003 cannot sustain and are hereby set aside. It is held that the petitioner cannot be dispossessed except in accordance with the provisions laid down under the East Punjab Urban Rent Restriction Act, 1949 . Disposed of accordingly. Order accordingly.