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2014 Supreme(Bom) 280
In the High Court of Bombay at Nagpur
A.P. BHANGALE, J.
Basantilal & Another
Versus
Ramashankar & Others
Second Appeal Nos. 164 of 2002 & 198 of 2002
Decided On : 06-02-2014
For the Appellants:S.V. Manohar, Senior Counsel, Advocate.
For the Respondents:S.R. Deshpande, Counsel, Advocate.
Headnote:HINDU LAW - Partition of leasehold interest. - Partition of leasehold interest amongst co-sharers, makes every co-sharer remain liable collectively qua lessor.
HINDU LAW - Partition of leasehold property. - Partition of ascertained shares in leasehold property, impermissible as leasehold interest is indivisible. - The evidence led indicated the undivided Hindu family existed which included ’K’ and ’M’ as brothers at Gondia.. ’K’ came to Nagpur and acquired leasehold interest from the Nagpur Improvement Trust (NIT) in the suit land admeasuring 9828 Sq Feet for 30 years, lease tenure extendable by the lessor from time to time.
A partition inter se amongst several co-sharers in respect of the building constructed on the plot does not in any way affect the integrity of the tenancy or leasehold interest of the open plot owned by the NIT, so as to make each holder of an interest in the leasehold as a separate holder or entity of a different tenancy, and notwithstanding such partition amongst the co-sharers or due to sub-lettings created by them, they remain liable collectively qua the lessor (NIT in this case) for the payment of the whole ground rent of the open leasehold plot payable periodically to the NIT. In the same manner, they are liable to face lawful termination of the lease or eviction of the leasees by the NIT as if all the co-sharers in the leasehold plot deemed to have constituted the single tenancy.
The building on it whether it was duly sanctioned and who constructed it; who is answerable to deliver possession back to NIT after determination of lease by its termination or forfeiture or whether lessee is unable to use demised land; effect of holding over under Section 116 of the Transfer of Property Act, 1882 are all questions to be considered before passing the final decree as to whether shares declared by the First Appellate Court can attain finality in the facts of the case. NIT as an agency or instrumentality of the State is expected to confer benefit upon individuals by adopting rational; sound; transparent; fair and equitable policy to alienate land to any individual; for lawful consideration - alienation by mode of lease of the suit plot in this case; to a lessee as agreed between the co-sharers for - to discharge liability to pay ground rent and taxes payable to the NIT as lessor. NIT can assist the trial Court before passing the final decree as to who had applied for the construction, when it was sanctioned, completed and who shared it with others for the reasons stated above. Approaching NIT is necessary for the parties to the suit interested in the leasehold suit plot of land before they can move the trial Court for the final decree which will have to be passed to settle the real controversy finally between the parties to the suit after appreciating the facts and circumstances of the case, it appropriate that these second appeals can be disposed of by modification or substituting the decree passed by the first appellate Court by a preliminary decree.
1. Second Appeal No.164 of 2002 is filed by Basantilal Motilal Tiwari and Second Appeal No.198 of 2002 filed by Ramashankar Kantaprasad Tiwari are directed against Judgment and order dated 10-12-2001 passed by 3rd Additional District Judge, Nagpur in Regular Civil Appeal No.283 of 2000 which was partly allowed allowing one-third share to the Ramashankar (Original Plaintiff) and one-third share each to Basantilal (Ori. Defendant No.1) and Umashankar (Ori. Defendant No.2). Both the appeals arose out of the Judgment and order dated 14-01-2000 passed by the 5th Joint Civil Judge Senior Division at Nagpur in Special Civil Suit No.692 of 1988 whereby the suit was dismissed by the trial Court.
2. Second Appeal No 164 of 2002 was admitted by this Court on 2nd May 2005 on the following substantial Questions of law:-
i) Whether the suit was not tenable and was liable to be dismissed for misjoinder of causes of action?
ii) Whether the First Appellate Court was justified in declaring the shares of the parties in the absence of any prayer to that effect by the plaintiff?
My answers for (i) Suit was tenable and ought to have resulted in conditional preliminary decree as under (ii) is affirmative to avoid multiplicity of the judicial proceedings in the larger interest of justice.
3. Second Appeal No.198 of 2002 was admitted by this Court upon following substantial questions of law:-
i) Whether the Lower Appellate Court was right in assuming that the suit plot was vested in the Government in the absence of any pleadings?
Answer:- The First appellate Court was justified to reach and record finding as to title of the suit property as last court of facts.
ii) Whether the agreement (Ex 108) amounts to transfer and is hit by Nagpur Improvement Trust Land disposal Rules 1983?
Answer:- So far as the right to possess the construction made upon the leasehold land with the Sanction of the NIT, the agreement entered in to between the private parties as co-sharers would bind them to effect the transfer of right to possession of the construction made upon the leasehold land as between the parties to the agreement and/or the suit. Upon such agreement the private parties must inform the NIT and other competent local Authority to save the agreement from being hit by law or from being invalidated under the NIT Land disposal Rules, 1983.
iii) Whether the first appellate court failed to follow the procedure in Order 41 rule 2 of the Code of Civil Procedure?
Answer:- No. The First appellate court, in the larger interest of justice as final court of facts, can decide the first appeal without being confined to the grounds set out in the memorandum of the appeal by the appellant.
4. Substantial questions of law are answered accordingly for the following reasons.
5. Briefly stated facts are:
Subject matter of the dispute is leasehold interest in Plot No. 280 having total area of 9828.22 Sq. Feet owned and disposable by the Nagpur Improvement Trust. The plot has construction of 4905.80 Sq. Feet sanctioned by the Nagpur Improvement Trust (NIT) out of total buildable area of 8914.11 Sq. feet. The leasehold interest in the suit plot was not capable of sub-division under the rules of NIT. Basantlal Motilal Tiwari, (the first defendant) had constructed residential Block with a staircase on the North side while the plaintiff was allotted the western portion which he had constructed to the west of’ AB’ line shown in the Map. Remaining portion was allotted to Basantlal Motilal Tiwari.
Family Genealogical tree is as under:-
(Kantaprasad) = Chandrakalabai (Deft no. 4)
Died on 30-10-1981
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Ramashankar Umashankar Sushilkumar
(Plaintiff) (Def.No.2) (Def.No.3)
Basantlal Motilal Tiwari (first defendant) is nephew of Kantaprasad and used to look after family’s business along with Kantaprasad.
The parties are referred to by their nomenclature as stated in the title to the suit in trial Court.
Th
