Judgment Dharam Chand Chaudhary, J. 1. Common judgment and decree dated 10.8.2000 passed by learned Additional District Judge (I), Kangra at Dharamshala (Camp at Una) in Civil Appeal No.130/93 (RBT No.170/94) and Civil Appeal No.131/93 (RBT No.171/94) allowing thereby partly the Civil Appeal No.130/93, whereas dismissing the Civil Appeal No.131/93, is under challenge before this Court in the present regular second appeal. 2. The plaintiffs aggrieved by the findings recorded by learned Sub Judge 1st Class, Court No.2, Amb District Una on issues No.2 and 9A had preferred Civil Appeal No.130/93 (RBT No.170/94), whereas, the defendants by the findings on issues No.1 and 9C Civil Appeal No.131/93 (RBT No.171/94) in the lower appellate court. The findings on the remaining issues being not challenged either by the plaintiffs or the defendants have attained finality. 3. The bone of contentions in the present lis is a plot marked ABCD and a tin shed situated in village Chintpurni, Tehsil Amb, District Una shown red in the site plan Ex.PW-1/A and bounded in North by bazaar, South a bheth, East shop of Faqir Chand and West plot of Mukand Lal etc. 4. Admittedly, the respondents/cross-objectors (hereinafter referred to as “the plaintiffs”) are owners of the plot and tin shed constructed thereon. There is again no controversy with regard the same rented out by them to Shri Bishan Dass, predecessor-in-interest of the appellants/non-objectors (hereinafter referred to as “the defendants”). While as per the plaintiffs the tin shed was rented out to said Shri Bishan Dass on 6.6.1974 at the monthly rental of Rs.250/-, the defendants have denied the same and as per their case said Shri Bishan Dass was inducted as tenant about 30 years ago at the yearly rental of Rs.333/-, which later on was increased to Rs.600/-. There used to be a building belonging to the plaintiffs in existence on the plot, however, the same gutted in fire. They could not construct the new building and rather raised only a tin shed which was rented out to deceased defendant, Shri Bishan Dass. He failed to pay the rent with effect from 6.6.1975 and as the plot was required by the plaintiffs for raising construction of a new building thereon, the tenancy of deceased defendant, Bishan Dass was terminated vide notice dated 3.5.1978 served upon him in accordance with the provisions contained under Section 106 of the Transfer of Property Act. He failed to pay the rent with effect from 6.6.1975 and as the plot was required by the plaintiffs for raising construction of a new building thereon, the tenancy of deceased defendant, Bishan Dass was terminated vide notice dated 3.5.1978 served upon him in accordance with the provisions contained under Section 106 of the Transfer of Property Act. The notice was despatched to said Shri Biahsn Dass through registered AD post on his correct address. The registered AD cover was, however, returned to them undelivered. They again mailed the notice on 22.5.1978 under certificate of posting and thereby terminated the tenancy of said Shri Bishan Dass in accordance with law. He, however, failed to hand over the vacant possession of the tin shed and also to pay the arrears of rent due and admissible to them. This has led in institution of a suit registered as case No.105 of 1978 for the decree of possession through ejectment on 20/29.6.1978 in the Court of Senior Sub Judge, Una. No doubt, the notice under Section 106 of the Transfer of Property Act was held to be legally and validly served upon deceased defendant, Bishan Dass, however, the suit came to be dismissed by learned Senior Sub Judge vide judgment dated 9.12.1982, Ex.D-2 for the reason that said Shri Bishan Dass had purchased 1/5th share of Shri Balbir Bhushan Nath in the plot and the structure in existence thereon on 24.10.1978, i.e. during the pendency of the suit and has become owner thereof to the extent of 1/5th share. Therefore, in the opinion of Senior Sub Judge said Shri Bishan Dass being one of the co-owner could have not been ejected from whole of the property in dispute. An application under Order 6 Rule 17 of the Code of Civil Procedure preferred by the plaintiffs for amendment of plaint necessitated consequent upon acquiring 1/5th share in the suit property by deceased defendant, Bishan Dass was also dismissed by learned Senior Sub Judge. 5. An application under Order 6 Rule 17 of the Code of Civil Procedure preferred by the plaintiffs for amendment of plaint necessitated consequent upon acquiring 1/5th share in the suit property by deceased defendant, Bishan Dass was also dismissed by learned Senior Sub Judge. 5. The plaintiffs aggrieved by the judgment and decree so passed by learned Senior Sub Judge had questioned the legality and validity thereof by filing civil appeal No.27 of 1983 in the Court of learned District Judge, Una, who allowed the amendment in the plaint and after setting a side the judgment and decree passed by learned Senior Sub Judge remanded the c a se to the trial Court for fresh disposal vide judgment dated 6.4.1987, Ex.P-2. The matter ultimately landed in this Court because the judgment Ex.P-2 was further assailed by the defendants in FAO No.42 of 1987. The same was disposed of vide judgment dated 25.5.1987, Ex. P-3, which for the sake of convenience is reproduced as under:- “After the appeal was heard for sometime at the admission stage, the learned counsel for the parties made the following statements having taken into consideration all the aspects of the matter and keeping in view the interests of their respective clients: Mr. Devinder Gupta and Mr. K.D. Sood both state that the impugned order insofar as it grants the amendment of the plaint be quashed and set-aside but the order of remand be maintained. Mr. K.D. Sood states that the respondents (original plaintiffs) will file an application in the Trial Court seeking unconditional withdrawal of the present suit in which the original relief (prior to the grant of the impugned amendment by the lower Appellate Court) was for the ejectment of the appellants (original defendants) from the suit property on the basis of title and that they will institute a fresh suit for partition and separate possession of their share in the suit property and for the recovery of mesne profits and/or for other ancillary or incidental reliefs. Mr. Mr. Devinder Gupta states that in case the respondents make an application for the unconditional withdrawal of the suit as aforesaid within a period of four weeks from today the appellants will not raise any objection to the grant of such application nor will they raise any objection as to the maintainability of a fresh suit for partition and separate possession and for the recovery of mesne-profits and/or for any other ancillary or incidental reliefs on the ground that such suit cannot lie in view of the unconditional withdrawal of the present suit or on the ground that the fresh suit or any relief of the nature stated hereinabove claimed therein is barred by limitation provided such fresh suit is filed within a period of 12 weeks from today; the appellants, however, will contest the suit on merits on all other available grounds. In view of the statements in the aforesaid terms, the present appeal is allowed with no order as to costs by quashing the impugned order granting the amendment of the plaint. However, the order of remand is maintained. Dasti copy on usual terms.” 6. Consequent upon the judgment Ex.P-3, supra, the plaintiffs had withdrawn unconditionally civil suit No.105 of 1978 by filing an application in the Court of Senior Sub Judge, Una. They also institut ed the present suit giving rise to the appeal and cross-objections under consideration well within the time granted by this Court as per judgment Ex.P-3. As per their case since the tenancy stands terminated in accordance with law well before the institution of the previous suit and as on acquiring 1/5th share in the suit property by deceased defendant Bishan Dass by way of sale they are no more interested to continue in joint possession with him, therefore, are entitled to separate possession of 4/5th share in the property in dispute by way of partition and also the mesne profits qua which they have restricted their claim only to the extent of Rs.7200/-. 7. 7. The defendants, however, claim themselves to be in possession of remaining 4/5th share also being duly inducted tenants therein and, as such, the plaintiffs, according to them, at the most are entitled only to symbolic possession of their 4/5th share in the property in dispute even if the partition of the property in dispute takes place between them and the plaintiffs and also that the plaintiffs of course are entitled to the payment of due and admissible rent towards use and occupation charges of their 4/5th share therein. 8. Learned trial Court on the basis of the pleadings of the parties framed issues in the suit and after holding full trial, on appreciation of the oral as well as documentary evidence while answering issue No.1 in favour of the plaintiffs and Issue No.9C against the defendants has concluded that the property in dispute was rented out by the plaintiffs to the defendants at the monthly rental of Rs.250/- and not Rs.600/- per annum, however, the tenancy has not been held to be terminated in accordance with law and, as such, answered issue No.2 against the plaintiffs. It is, therefore, held while answering issue No.9A in favour of the defendants that deceased defendant Bishan Dass remained inducted as tenant over 4/5th share of the plaintiffs in the property in dispute. The shares of the parties, i.e. the plaintiffs 4/5th and defendants 1/5th have however, been defined while answering issue No.9B. The findings on the remaining issues being not under challenge and rather attained finality need not be discussed here being unnecessary. However, learned trial Court while holding the plaintiffs entitled to 4/5th share, whereas the defendants to an extent of 1/5th share in the property in dispute decreed the suit for partition thereof accordingly with a further direction that the defendants shall continue to hold 4/5th share of the plaintiffs as tenants. The suit for recovery of Rs.7200/- towards arrears of rent has also been decreed in favour of the plaintiffs. As pointed out at the outset, the plaintiffs assailed the findings on issues No.2 and 9A recorded by learned trial Judge by filing an appeal registered as Civil Appeal No.130/93 before lower appellate court, whereas the defendants the findings recorded on issues No.1 and 9C in Civil Appeal No.131/93. 9. As pointed out at the outset, the plaintiffs assailed the findings on issues No.2 and 9A recorded by learned trial Judge by filing an appeal registered as Civil Appeal No.130/93 before lower appellate court, whereas the defendants the findings recorded on issues No.1 and 9C in Civil Appeal No.131/93. 9. It is seen that vide judgment and decree impugned, learned lower appellate court while partly allowing the appeal preferred by the plaintiffs has reversed the findings on issue No.2 and held that the tenancy stands legally terminated by way of notice under Section 106 of the Transfer of Property Act served upon deceased defendant Bishan Dass by the plaintiffs. However, irrespective of the findings so recorded, the defendants in the opinion of learned lower appeal court still hold 4/5th share of the plaintiffs in the property in dispute in the capacity of tenants. The appeal preferred by the defendants, however, has been dismissed as learned lower appellate court has not found any illegality or irregularity with the findings recorded on issues No.1 and 9C. 10. The judgment and decree passed by learned lower appellate court has, therefore, been assailed by the defendants in this appeal on the grounds, inter alia, that there is no legal and acceptable evidence to show that notice Ex.PW-2/A was duly served upon deceased defendant Bishan Dass. Since the provisions of Transfer of Property Act were made applicable to the State of Himachal Pradesh in the year 1970, therefore, without there being cogent and reliable evidence with regard to the service of notice qua termination of the tenancy upon said Shri Bishan Dass there is no question of termination of the tenancy. Photo copies of the notice and postal receipts to prove the service of notice upon the deceased tenant are not legally admissible in evidence. The court below has also erroneously concluded that the monthly rent was Rs.250/-. The decree for partition could have not been passed by the court below as the defendants are still tenants with respect to 4/5th share of the plaintiffs-respondents in the property in dispute. It has further been pointed out that the court below has erroneously concluded that the service of notice under Section 106 of the Transfer of Property Act upon deceased defendant Bishan Dass was legal and valid. It has further been pointed out that the court below has erroneously concluded that the service of notice under Section 106 of the Transfer of Property Act upon deceased defendant Bishan Dass was legal and valid. It has, therefore, been submitted that the findings recorded are not only illegal but erroneous also and hence being legally and factually not sustainable deserve to be quashed. 11. On the other hand, the plaintiffs in cross-objections being aggrieved by the findings that the defendants are still in possession of 4/5th share of the plaintiffs in the property in dispute as tenants, have assailed the same on the grounds, inter alia, that on purchase of 1/5th share in the property in dispute by deceased defendant Bishan Dass, he became owner thereof to the extent of 1/5th share and, as such, there was complete merger of his tenancy rights with his co-sharers, i.e. the plaintiffs and, as such, the suit should have been decreed for possession in its entirety. 12. The appeal was admitted on the following substantial questions of law:- 1. When the Transfer of Property Act were made applicable to the State of Himachal Pradesh, has not the Lower Appellate Court gone wrong in relying upon the judgment reported in 1978 Shimla Law Cases I, to come to the conclusion that there was valid termination of the tenancy on account of the service of notice under Section 106 of the Transfer of Property Act? Are not such findings against the provisions of Punjab Reorganization Act, 1966 and State of Himachal Pradesh Act, 1971 and Transfer of Property Act? 2. When it was established on the record that the registered notice was returned back to the sender, could Lower Appellate Court presume the valid termination of tenancy by invoking the provisions of Section 27 of the General Clauses Act and Evidence Act, are not such findings incorrect on facts as well as law? 3. When there was no proper compliance of the provisions of Section 106 of the Transfer of Property Act, was it permissible for the Lower Appellate Court to hold that the tenancy stood validly terminated? The bare perusal of the notice Exhibit PW-2/A was that the basic requirement of Section 106 were not fulfilled, hence there was no question of termination of tenancy in accordance with law? 4. The bare perusal of the notice Exhibit PW-2/A was that the basic requirement of Section 106 were not fulfilled, hence there was no question of termination of tenancy in accordance with law? 4. Whether the Lower Appellate Court has relied upon inadmissible evidence, which documents i.e. PW-2/A and Exhibit PW-2/C were not in accordance with the provisions of Evidence Act, are not the findings of Lower Appellate Court on Point No.1 vitiated? 5. Whether the findings of the courts below on Issue No.1 and 9C, are absolutely wrong, against facts proved on record? When the Defendant-Appellants produced and proved the rent receipts showing the rate of rent to be Rs.600/- per annum in the previous litigation between the parties, could both the courts below draw adverse inference against the Defendant-Appellants for non-production of such receipts in the present litigation? 13. Since all the substantial questions are interlinked, the same are taken up together for determination to avoid repetition of discussion and submissions. 14. Learned counsel representing the appellants-defendants during the course of arguments highlighted the grounds raised in the memorandum of appeal with the help of case law and has urged that there being no proof of termination of the tenancy in accordance with law, the plaintiffs are not entitled to the decree of partition of the suit land and that even if the partition takes place between them and the defendants, they are entitled only to symbolic possession of 4/5th share and they may seek remedy in accordance with law. 15. On the other hand, learned counsel representing the plaintiffs/cross-objectors has forcefully contended that a co-sharer cannot claim himself to be a tenant in respect of the property in the share of other co-sharers. Otherwise also, according to learned counsel, the tenancy stands legally and validly terminated vide notice Ex.PW-2/A under Section 106 of the Transfer of Property Act, duly served upon deceased defendant Bishan Dass. It has, therefore, been emphasised that the status of the parties in respect of the property in dispute is merely that of co-sharers and as the plaintiffs are no more interested to be in joint possession thereof with the defendants, are legally entitled to the decree for separate possession of their share in the property in dispute by way of partition. The judgment of this Court in the previous litigation Ex.P-3 has also been pressed into service. 16. The judgment of this Court in the previous litigation Ex.P-3 has also been pressed into service. 16. The pivotal point around which the entire controversy revolves, is the applicability of the provisions contained under Section 106 of the Transfer of Property Act and availability of legal and acceptable evidence qua the service of notice under the section ibid upon deceased defendant Bishan Dass and also the impact of collusion of 1/5th share by way of sale by said Shri Bishan Dass during the pendency of the previously instituted suit qua this very property. 17. Admittedly, the Chintpurni area where the property in dispute is situated, before its merger in the State of Himachal Pradesh and coming into being the Punjab Reorganization Act, 1966, was a part of the State of Punjab. Short Title, Commencement and Extent below Chapter I of the Act reveals that the same though extends to the whole of India, however, except the territories which before 1st November, 1956 were comprised in Part B States or in the States of Bombay, Punjab and Delhi. It was, however, left open to the State Government concerned to make applicable the Act or in part thereof by notification in the official gazette to the whole or any part of the territory of the said State. It is seen that the operation of Sections 54, 107 and 123 of the Act was extended to the entire State of Punjab from 1.4.1955 vide Gazette Notification dated 1.4.1955 Part I (page 372) and that of Section 59 with effect from 10.6.1968 vide Gazette Notification dated Part III (page 247). Meaning thereby that the operation of the Section ibid was made applicable to the State of Punjab well before coming into force of Punjab Reorganization Act and the merger of the area where the property in dispute is situated with the State of Himachal Pradesh. 18. In the State of Himachal Pradesh also, the provisions of Sections 54, 107 and 123 of the said Act have been made applicable to the districts of Chamba, Sirmaur, Mahasu Kinnaur, Mandi and Bilaspur of Himachal Pradesh vide Notification No.17-13/66-Rev-1 dated 7.12.1970. 19. Be it stated that the provisions contained under Section 106 of the Transfer of Property Act were neither applicable in the State of Punjab nor the State of Himachal Pradesh. 19. Be it stated that the provisions contained under Section 106 of the Transfer of Property Act were neither applicable in the State of Punjab nor the State of Himachal Pradesh. However, since the procedure as to how a lease can be made, was applicable for the State of Punjab and Himachal Pradesh vide Notification referred to hereinabove and as deceased defendant Bishan Dass as per the plaintiffs’ case was inducted as tenant in the disputed shop on 6.6.1974 (though disputed by the defendants, however, without producing any proof), therefore, the tenancy could have only been terminated in accordance with law. The only mode prescribed for the purpose is under Section 106 of the Transfer of Property Act. The plaintiffs while adopting the said mode had issued the notice dated 3.5.1978 Ex.PW-2/A and thereby terminated the tenancy of deceased defendant Bishan Dass obviously from the next month, i.e. June, 1978. 20. The question of service of this notice upon deceased defendant Bishan Dass has been hotly contested by the parties on both sides. The admissibility of postal receipts Ex.PW-2/B and Ex.PW-2/C has been questioned by the defendants on the ground of mode of production. It has been emphasised that mere production of these documents does not discharge the onus to prove the same in accordance with law. There is, however, no substance in this part of the defendants’ case for the reason that PW-2 Parkash Chand, Record Keeper, General Record Room has produced the record of previously instituted suit between the parties and proved these documents to be true and correct as per the said record. It is seen that this witness has not at all been cross-examined on behalf of the defendants. Therefore, it does lie ill to dispute the mode of proof and admissibility of the said documents. The outer cover of the postal envelope Ex.PW-2/B amply demonstrates that the notice was booked on 3.5.1978 vide No.1885 from Hoshiarpur in the name of deceased defendant Bishan Dass, Proprietor, Vaishno Dhaba, Chintpurni, District Una. The Dhaba admittedly is the same being run by the defendants and earlier by their predecessor-in-interest in the disputed tin shed. Even the address of the deceased defendant was same in the previous suit and also in the present one on which he was duly served. The Dhaba admittedly is the same being run by the defendants and earlier by their predecessor-in-interest in the disputed tin shed. Even the address of the deceased defendant was same in the previous suit and also in the present one on which he was duly served. The endorsements on Ex.PW-2/A made by the Postman on different dates, i.e. 5.5.1978, 6.5.1978, 8.5.1978, 10.5.1978, 13.5.1978, 14.5.1978 and 15.5.1978 amply demonstrate that on all these dates, the Postman visited the given address, however, the addressee, i.e. deceased defendant Bishan Dass did not meet him on all these dates. The registered A.D. cover, therefore, was returned to plaintiff, Shambhu Nath, who received the same undelivered. A person running his business in that very premises mentioned on the envelope and even served on that very address in the civil suit, did not meet or was not available to the Postman to receive the registered letter, speaks in plenty about the conduct and behaviour of such person who was none else, but deceased defendant Bishan Dass, who in the considered opinion of this Court had avoided the service of the notice intentionally and deliberately knowing fully well about the matter despatched to him thereby by the senders, i.e. plaintiffs, who as a matter of fact, before issuing the notice in question had requested said Shri Bishan Dass orally also to vacate the premises in question being required by them for reconstruction. I am, therefore, in agreement with the findings recorded by learned lower appellate court that in view of the repeated visits of the Postman to deliver the registered letter to deceased defendant Bishan Dass, he avoided the service deliberately and intentionally and, as such, can reasonably be believed to have duly been served therewith. The plaintiffs, however, to be on safer side had despatched the said notice on 22.5.1978 under certificate of posting, the postal receipt of which is Ex.PW-2/C. Learned trial Judge has erroneously concluded that no notice dated 22.5.1978 was ever served upon the deceased defendant. True it is that there is no notice dated 22.5.1978 which was ever served upon the deceased defendant, however, it is the notice Ex.PW-2/A, dated 3.5.1978 itself which was again sent to the deceased defendant under certificate of posting when the registered AD cover containing the same was received back undelivered. Learned trial Judge, therefore, should have not drawn any adverse inference in this behalf. Learned trial Judge, therefore, should have not drawn any adverse inference in this behalf. Any how, learned lower appellate court after appreciating the evidence in its right perspective and also taking into consideration the law cited at the Bar, has rightly concluded that the notice Ex.PW-2/A was duly served upon deceased defendant Bishan Dass. No case, therefore, is made out from the perusal of the grounds of appeal and the arguments addressed on behalf of the defendants that the postal receipts Ex.PW-2/B and Ex.PW-2/C being not proved in accordance with law are not legally admissible for the detailed reasons cited in this judgment at the very outset. 21. True it is that the Apex Court in Sait Tarajee Khimchandand others v. Yelamarti Satyamand others, AIR 1971 SC 1865 has held that mere marking of an exhibit does not dispense with the proof of documents, however, with due regard and all humility, in my command, the ratio of this judgment is not attracted in the case in hand for the reasons that the document Ex.PW-2/B and Ex.PW-2/C have not simply been marked and rather produced in evidence by PW-2 and proved from the record, he produced and his testimony has not at all been questioned by way of cross-examination. 22. For the above reasons the judgment of this Court in H.P. State Forest Corporation and another Versus Ram Singh, 2007(1) Shim. L.C. 237 has also no application in the given facts and circumstances of this case. 23. It is relevant to mention that the dispatch of a letter under certificate of posting cannot be taken the proof of its delivery to the addressee. There cannot be any quarrel qua the law laid down in Ramanna Vs T. Jayaprakash, 2000(3) Civil Court Cases 82 (Karnataka). The certificate of posting, however, definitely shows that a letter has been posted to the addressee coupled with the factum that the postman visited the place of addressee, i.e. deceased defendant Biahsn Dass on several occasions, learned lower appellate court has rightly concluded that presumption of delivery of the notice upon the defendant can legally be raised. 24. The defendants have miserably failed to prove that the rent of the premises in dispute was not Rs.250/- per month but Rs.600/- per annum. Therefore, both courts below have not committed any illegality or irregularity while holding that the rent thereof was Rs.250/- per month. 24. The defendants have miserably failed to prove that the rent of the premises in dispute was not Rs.250/- per month but Rs.600/- per annum. Therefore, both courts below have not committed any illegality or irregularity while holding that the rent thereof was Rs.250/- per month. I, therefore, find no merit in the appeal and the same deserves dismissal. Cross-Objection: 25. Now if coming to the cross-objections, learned counsel representing the defendants/ non-objectors has strenuously contended that the same neither being admitted nor any substantial question of law framed, cannot be entertained and should rather be dismissed. 26. In order to strengthen the submissions so made, it has been contended that rigour of Section 100 of the Code of Civil Procedure is applicable to cross-objections also and that the findings of court below cannot be assailed if no substantial question of law is involved and needs adjudication by the High Court. In support of such contention reliance has been placed on Palasseri Velayudhanandan other vs. Palasseri Ithayiand others, AIR 1994 Kerala 267 and that of Madhya Pradesh High Court in Chandrawati WD/o Surjanram Versus Ganesh Prasad Lakshmi Frasad, (1999) 1 MPLJ 107 and (2008) 0 ILF(MP) 846= (2008)2 MPLJ 164 . There cannot be any quarrel qua the legal submissions so made by learned counsel and the law laid down in the judgments, supra. I am afraid that this point can be urged for the reason that the order passed in this appeal on 17.5.2001 reveals that the cross-objections preferred by the plaintiffs were ordered to be taken on record for being heard at the time of final hearing of the appeal. For the sake of convenience, the order so passed is reproduced here as under:- “CO No.113/2001. Cross-objections are taken on record and shall be heard at the time of final hearing of the appeal. Steps for the service of remaining un-served respondents shall be taken by the appellant within four weeks. Post the application after the service of un-served respondents.” 27. This order has been passed in the presence of learned counsel representing the appellants-defendants. It is not understandable as to what prevented the appellants-defendants from making submissions that the cross-objections cannot be ordered to be taken on record without formulating substantial question(s) of law involved therein. Post the application after the service of un-served respondents.” 27. This order has been passed in the presence of learned counsel representing the appellants-defendants. It is not understandable as to what prevented the appellants-defendants from making submissions that the cross-objections cannot be ordered to be taken on record without formulating substantial question(s) of law involved therein. Therefore, it does lie ill to find defect with the taking on record the cross-objections for being considered alongwith appeal at the time of final hearing. Otherwise also, nothing has been brought to the notice of this Court to show that the cross-objections cannot be considered at this stage, more particularly, for formulating substantial question of law. The substantial question of law in the opinion of this Court can be considered in an appeal or cross-objections at any stage of the proceedings. 28. If coming to the cross-objections, in a situation when the tenancy stood terminated with the service of notice Ex.PW-2/A upon deceased defendant Bishan Dass and even he having become owner to the extent of 1/5th share in the disputed property on acquiring the same by way of sale during the pendency of the previous suit, the substantial question of law brought to this Court by way of filing cross-objections would be: “Consequent upon termination of the tenancy and subsequently acquiring the property in dispute to the extent of 1/5th share, the deceased defendant Bishan Dass was still legally entitled to retain the remaining 4/5th share belonging to the plaintiffs as tenant.” Surprisingly enough, learned lower court irrespective of arriving at a conclusion that the tenancy stands legally and validly terminated while answering point No.1 and also that on acquiring 1/5th share by Shri Bishan Dass, the predecessor-in-interest of the defendants in the property in dispute by way of sale, they have become co-sharers alongwith the plaintiffs, has concluded to the contrary that the defendants are still tenants with respect to 4/5th share of the plaintiffs in the property in dispute. am afraid that in a situation when the tenancy stands terminated and the tenant has acquired a share in the demised premises by way of sale from one of the co-sharers, he can still be said to be tenant with respect to the remaining shares. I fail to lay my hands on any reasons if recorded by learned trial court and even by lower appellate court also. I fail to lay my hands on any reasons if recorded by learned trial court and even by lower appellate court also. This Court, therefore, is of the considered opinion that declining the relief of separate possession in favour of the plaintiffs by both courts below is neither legally nor factually sustainable for the reason that when the tenancy stands terminated and the deceased defendant Bishan Dass had ceased to be the tenant over the property in dispute as was even held by learned Senior Sub Judge vide judgment Annexure P-1 in the previous suit and during the pendency of that suit he even became owner thereof to the extent of 1/5th share on acquiring the same from one of the co-owners by way of sale, deceased defendant and for that matter even the appellants-defendants, his successors cannot be said to be the tenant(s) over 4/5th share of the plaintiffs in the property in dispute and rather their possession is in the capacity of co-sharers. As per the settled legal principles, the possession of a co-sharer over every inch of the joint property is on his own behalf and also on behalf of each and every co-owner. Therefore, when the plaintiffs, who are co-owners in the property in dispute to the extent of 4/5th share are no more interested to continue in joint possession thereof with the appellants-defendants, hence, well within their rights to seek the decree for separate possession of their shares by way of partition. The suit, therefore, should have been decreed as a whole and not in part. 29. Therefore, the findings recorded by learned lower appellate court on issue No.2 to the extent that the appellants-defendants are in possession of 4/5th share of the property in dispute as tenants are not legally and factually sustainable and are hereby quashed. Consequently, the cross-objections succeed and deserve to be allowed. 30. All the substantial questions are answered accordingly. 31. For all the reasons, the present appeal fails and the same is accordingly dismissed. The cross-objections succeed and the same are accordingly allowed. Consequently, the suit is decreed for the relief of separation of 4/5th share of the plaintiffs by way of partition and possession thereof. The judgment and decree impugned in the present appeal stands modified accordingly. No order, however, as to costs. Decree sheet be prepared accordingly. Pending applications, if any, shall also stands disposed of.