Important Point
Where a joint decree for actual possession of immovable property is passed and one of the coparceners assigns or transfers his interest in the subject matter of the decree in favour of the judgment debtor, the decree gets extinguished to the extent of the interest so assigned and execution could lie only to the extent of remaining part of the de­cree; if interest of coparceners is undivided, indeterminate and cannot be specifically stated to be in respect of any portion of the property, decree holders remedy is to file appro­priate suit for parti­tion.

Judgment

Rajendra Babu, J.-A suit for ejectment was instituted by the appellants on the grounds of arrears of rent and sub-letting by Dharam Pal (Respondent No. 1) and Sat Pal (Respondent No. 2). The suit was decreed by the trial Court on March 31, 1987. Appeal against that decree, second appeal thereafter and further special leave petition to this Court against the decree in second appeal stood dismissed. The appellants herein levied execution on February 5, 1991 and certain objections thereto were raised that Judgment Debtor No. 1 was unneces­sarily arrayed as a party in the proceedings and he was not in posses­sion of the disputed premises. Judgment Debtor No. 2 claimed that he was a tenant in respect of the shop in question and his tenancy was not terminated in accordance with law. This contention was belied by the finding recorded by the High Court in second appeal that the said Sat Pal (Respondent No. 2) was not a tenant but a trespasser of the shop. Hence the objections were overruled. Against that order a revision petition was filed which was also dismissed, of course, granting some time to vacate the premises subject to certain condi­tions.

2. In the execution petition respondent No. 2 claimed that he had purchased the undivided interest of the coparceners in the Hindu Undivided Family of the decree holder and, therefore, actual physical possession cannot be given but only symbolic possession can be given to the appellant-decree holder. The Executing Court, after inquiry, upheld this contention. That order was challenged in the High Court. The High Court set aside the order made by the executing court and remitted the matter to it to investigate the quantum of share purchased by respondent No. 2. If a good or larger share as opposed to an insig­nificant share had been purchased by respondent No. 2 khas possession cannot be given to the appellant and if only an insignificant portion had been purchased by him, the khas possession shall be given to the appellant. It is against this order the present special leave petitions are preferred.

3. The learned counsel for the appellants contended that it is not open to the respondents during the subsistence of tenancy or in the suit for recovery of possession of the property after termination of tenancy to set up title in himself or in any other person. Respondents had to surrender possession and seek remedy, if any, separately in case he acquires title subsequently through some other person and he placed strong reliance in support of this proposition on the decision of this Court in Sant Lal Jain v. Avtar Singh1. He also contended that in a case of this nature where only a portion of the undivided inter­est had been purchased by the judgment debtor there would be no merger of interest in terms of Section 111(d) of the Transfer of Property Act, 1882 and submitted that the concept of merger would arise only if no property remains outside the sale. In the present case only 1/3rd undivided share having been purchased the judgment debtor cannot resist the recovery of possession and placed reliance on the decision of this Court in Shah Mathuradas Maganlal & Co. v. Nagappa Shankarappa Malage & Ors.2 and Parmar Kanaksinh Bhagwansinh (Dead) by LRs. v. Makwana Shanabhai Bhikhabhai & Anr.3.

4. On the other hand, the learned counsel for the respondents submitted that a lease of immovable property determines in case the interests of lessee and lessor in the whole of the property becomes vested in one person and in the present case such an event having taken place to the extent of the undivided share of the coparceners of the joint family, decree passed in favour of the appellants cannot be executed. If that is so, the possession of the entire property cannot be obtained by the appellants and, therefore, only symbolic possession can be given and placed reliance on the decisions in Hasimathunnisa Begum v. Vithall Rao Gangaji & Anr.4, Milkhi Ram & Ors. v. Raghunandan & Ors.5 and Bawa Maharaj Singh