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High Court Of Calcutta
M. M. Dutt, D. C. Chakravorti
HIRENDRA NATH PODDAR - Appellant
Versus
SHIBENDRA NATH PODDAR - Respondent
First Appeal 78 Of 1977
Decided On : 11/17/1978
PARTITION - Joint Property - Tenancy - Transfer of Property Act, 1882, Section 105 - West Bengal Premises Tenancy Act, 1956, Section 2(f) - Suit for partition of joint property - Defendant claiming tenancy of disputed property - Whether tenancy valid - Whether governed by Transfer of Property Act or West Bengal Premises Tenancy Act - Held, tenancy valid - Governed by Transfer of Property Act - Plaintiff not entitled to physical possession of demarcated portion during tenancy.
Fact of the Case:
Plaintiff and defendants were brothers who partitioned their joint properties by a registered deed. The disputed property, a building consisting of two rooms, was allotted jointly to the plaintiff and defendant No. 1, with the plaintiff having a 3/4th share and the defendant No. 1 having a 1/4th share. A shoe shop named 'Sricharaneshu' was being run in the suit house, which was allotted exclusively to the defendant No. 1. The plaintiff instituted a suit for partition by metes and bounds of his 3/4th share in the disputed building. The defendant No. 1 contested the suit, claiming that there was an oral agreement at the time of partition that the disputed property would not be partitioned as long as he continued to run the shoe business. He also claimed that he was a monthly tenant of the plaintiff in respect of the plaintiff's 3/4th share and that 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.
Finding of the Court:
The court found that the defendant No. 1 was a monthly tenant of the plaintiff in respect of the plaintiff's undivided 3/4th share in the disputed property at a monthly rent of Rs. 75/-. The court also found that the tenancy was not governed by the West Bengal Premises Tenancy Act, 1956, as it did not relate to a 'premises' within the meaning of Section 2(f) of the Act. The court held that the tenancy was governed by the provisions of the Transfer of Property Act and was liable to be determined on the service of a fifteen days' notice to quit.
Issues: 1. Whether the defendant No. 1 was a tenant of the plaintiff in respect of the plaintiff's undivided 3/4th share in the disputed property? 2. Whether the tenancy was governed by the West Bengal Premises Tenancy Act, 1956? 3. Whether the plaintiff was entitled to physical possession of the demarcated portion of the disputed property that may be allotted to him under the final decree during the tenancy of the defendant No. 1?
Ratio Decidendi: 1. The court held that the defendant No. 1 was a tenant of the plaintiff in respect of the plaintiff's undivided 3/4th share in the disputed property based on the following factors: - The defendant No. 1 admitted in his written statement that he was a tenant of the plaintiff. - The plaintiff described the monthly amount of Rs. 75/- paid by the defendant No. 1 as rent in his deposition. - The defendant No. 1 stated in his examination-in-chief that he was a monthly tenant under the plaintiff, and the plaintiff did not cross-examine him on this point. 2. The court held that the tenancy was not governed by the West Bengal Premises Tenancy Act, 1956, because the tenancy did not relate to a 'premises' within the meaning of Section 2(f) of the Act. The court reasoned that an undivided share in a property is not a premises and is not capable of being demarcated by metes and bounds. 3. The court held that the plaintiff was not entitled to physical possession of the demarcated portion of the disputed property that may be allotted to him under the final decree during the tenancy of the defendant No. 1, as the tenancy was valid and governed by the Transfer of Property Act.
Final Decision: The court affirmed the judgment and decree of the lower court, subject to the modification that the plaintiff would not be entitled to physical possession of the demarcated portion of the disputed property that may be allotted to him under the final decree during the tenancy of the defendant No. 1.
( 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. The joint properties of the plaintiff and the defendants were partitioned by a registered deed dated Feb. 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 3/4th share and the latter 1/4th 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 3/4th share. Further his defence was that as he was a monthly tenant of the disputed house 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 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 3/4th 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 the 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 matter, 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 T. P. Act. Upon the said findings, the learned Subordinate Judge decreed the suit in a preliminary form declaring the respective shares of the plaintiff and the defendant No. 1. Hence this appeal.
( 5 ) MR. Manindra 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 3/4th 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 v. Mahabir Roy, it has been held that a suit for partition would be maintainable although the prop
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