A co-sharer can create a tenancy of his undivided share in favor of another co-sharer, but such tenancy is not governed by the West Bengal Premises Tenancy Act, 1956.

M. M. Dutt, D. C. Chakravorti

( 1 ) THIS appeal is at the instance of the defendant no. 1 and it arises out of a suit for partition and possession.

( 2 ) THE plaintiff and the defendants are brothers. Joint properties of the plaintiff and the defendants were partitioned by a registered deed dated February 21, 1972. Upon such partition, the plaintiff and the defendant no. 1 were allotted specific properties in respect of their respective shares, excepting that the disputed property which is a building consisting of two rooms only, was allotted jointly to the plaintiff and the defendant no. 1, the former having " share and the later " the share therein. From before the said partition, a shoe shop named "sricharaneshu" was being run in the suit house. The shoe business was allotted exclusively to the defendant no. 1 and the plaintiff has no claim thereto. The plaintiff instituted the suit praying for partition by metes and bounds of his 3/4th share in the disputed building.

( 3 ) THE defendant no. 1 contested the suit. His case was that it was settled at the time of the partition among the brothers that so long as he would be carrying on the shoe business, the disputed property would not be partitioned. He had been paying rent of Rs. 75/- per month to the plaintiff in respect of his "th share. Further his defence was that as he was a monthly tenant of the disputed hours under the plaintiff, the suit for partition was not maintainable in view of the provisions of the West Bengal Premises Tenancy Act, 1956 and the Transfer of Property Act. Upon the said allegations, he prayed for the dismissal of the suit.

( 4 ) IT appears from the judgment of the learned Subordinate Judge that at the hearing of the suit, it was the admitted position that the defendant was a monthly tenant of the plaintiff in respect of his undivided "th share in the disputed property at a monthly rent of Rs. 75/ -. The learned Subordinate Judge disbelieved the plea of the defendant no. 1 that at the time of partition among the brothers there was an oral agreement or understanding that so long as the defendant no. 1 would run the shoe business, the disputed property would not be partitioned. The learned Subordinate Judge took the view that as the defendant no. 1 had dual capacity of a co-owner and a tenant, the remedy of the plaintiff for the eviction of the defendant no. 1 from the disputed property lay in a suit for partition. In that view of the mater, he held that the plaintiff had rightly brought the suit for partition, and that he was not required to comply with the provisions of the West Bengal Premises Tenancy Act and the Transfer of Property Act. Upon the said findings, the learned Subordinate Judge decreed the suit in a preliminary from declaring the respective shares of the plaintiff and the defendant no. 1. Hence this appeal.

( 5 ) MR. Manidra Nath Ghosh, learned Advocate appearing on behalf of the defendant no. 1 submits that although the disputed property can be partitioned by metes and bounds demarcating the respective shares of the plaintiff and the defendant no. 1, the plaintiff is not entitled to recover possession of the disputed property or the portion that may be allotted to him in respect of his "th share during the subsistence of the tenancy of the defendant no. 1 under the plaintiff. It has been stated already, that the admitted position in the court below was that the defendant no. 1 was a tenant under the plaintiff in respect of the plaintiff's share in the disputed property at a monthly rent of Rs. 75/ -. There can be no doubt that so long as the tenancy of the defendant no. 1 would continue, the plaintiff would not be entitled to recover possession of the portion of the disputed property that might be allotted to him under the final decree as contended by Mr. Ghosh. In a Bench decision of this Court presided over by G. N. Das J. in Surendra Nath Sarkar vs. Mahabir Roy, 56 C. W. N. 679, it has been held that a suit for partition would

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