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2004 Supreme(Del) 472
High Court Of Delhi
SURENDRA KUMAR JAIN - Appellant
Versus
ATTAR CHAND JAIN - Respondent
E.F.A. 3 of 2002
Decided On : 07/08/2004
AMIT KUMAR, H.L.Kapur, Puneet Taneja, S.K.TANEJA
The central legal point established in the judgment is that a co-owner cannot create a tenancy of joint property without the consent of the other co-owners.
Headnote:
tenancy - property dispute - Order 21 Rule 95 of the Code of Civil Procedure - Section 52 of the Transfer of Property Act - Ram gopal Sawhney v. Suraj Balram Sawhney and Sons and Others - Silverlineforum Pvt. Ltd. v. Rajiv trust and Another
Fact of the Case:
The appeal involved a property dispute regarding the possession of a shop and the legal status of the tenancy. The objectors claimed to be tenants of the property, while the auction purchaser contended otherwise.
Finding of the Court:
The court analyzed the evidence and legal provisions related to tenancy and co-ownership. It found that the objectors' claim of tenancy was not supported by sufficient evidence and that a co-owner cannot create a tenancy without the consent of other co-owners.
Issues: The issues included the existence of tenancy, partition of the property, valuation of the suit, and the bar of limitation.
Ratio Decidendi: The court relied on Order 21 Rule 95 of the Code of Civil Procedure and Section 52 of the Transfer of Property Act to determine the legal status of the tenancy. It also emphasized the principle that a co-owner cannot unilaterally create a tenancy without the consent of other co-owners.
Final Decision: The appeal was dismissed as devoid of any merit, and the parties were directed to bear their own costs.
( 1 ) THIS appeal is directed against the judgment of the learned Single Judge dated 20. 12. 2001 passed in EA 225/1999 in Ex. No. 69/96.
( 2 ) BRIEF facts which are necessary to dispose of this appeal are recapitulated as under :
( 3 ) ATTAR Chand Jain, decree holder purchased the property in question in auction. This is not disputed that the possession of the property except Shop No. 615 is with the auction purchaser. Shop No. 615 is stated to be in occupation of Surender kumar Jain and Devender Kumar Jain. Warrants of possession for delivery of the physical possession of the premises were issued. Objections were filed in which it was stated that the property in dispute had been purchased by late Ram Chand. On the ground floor, the business was started under the name and style of M/s. Kedar nath Ram Chand. The said business was dissolved on 6. 7. 1941. Thereafter Ram chand s two sons Nem Chand and Mod Lal started the partnership business under the name and style of M/s. Nem Chand and Brothers in this shop i. e. 615. According to the objectors, that the property was let out by Ram Chand at the rent of Rs. 25/- per month. Business of M/s. Nem Chand and Brothers was subsequently d issolved on 8. 7. 1956.
( 4 ) THE decree holder Attar Chand along with Moti Lal, Nem Chand started the business under the name and style of M/s. Kedar Nath Ram Chand. The said business continued in this very shop. The partnership was dissolved on 3. 11. 1959. The decree holder Attar Chand Jain separated from the business of M/s. Kedar nath Ram Chand and allowed the business from his shop. The other partners namely Moti Lal and Nem Chand continued the business under this very name. It is significant to mention that on 17. 6. 1961 Moti Lal also separated himself from the business being run by the firm of M/s. Kedar Nath Ram Chand vide the deed of partnership dated 11 th September, 1961. Nem Chand and co-owner also associated surender Kumar and Devender Kumar Jain. They carried on business under the name and style of M/s. Kedar Nath Ram Chand. It is pleaded that this partnership was also dissolved through a dissolution deed dated 8. 7. 1966. Nem Chand and dhanencler Kumar Jain left the business and it was taken over by Surender Kumar and Devender Kumar. Another partnership dated 8. 7. 1966 was executed. It is asserted that from the very beginning M/s. Kedar Nath Ram Chand are in, occupation of the shop as tenant and decree holder has no right to ask for the vacant possession or to compel the firm to vacate under the provisions of Order 21 Rule 95 of the Code of Civil Procedure. It is the further case of the objector that the partnership Is still in existence and carrying on the business under the name and style of M/s. Kedar Nath Ram Chand. On these pleadings following issues were framed:
" (1) Whetherdefendantno. lspentrs. 25,000/-oranyamountforbuilding superstructure on House No. 4676? If so, its effect? O. D. (2) Whether premises Nos. 4343 to 4345 are also joint Hindu family property and the present suit, as such, is partial partition and therefore, liable to be dismissed? O. D. (Onus objected to ). (3) Whether the suit has been over-valued for jurisdiction? If so, what is the correct valuation? O. D. (4) Whether all coparceners are residing in House No. 4676 and the house, therefore, cannot be partitioned by metes and bounds? O. D. (5) Whether Shri Sultan Singh separated from the joint Hindu family during the life-time of his father and his descendants, therefore, have no interest in the property in dispute? O. P. (Onus objected to ). (6) Whether defendant No. 3 has any share in the property in dispute? If not, what are her right therein, if any, and with what effect? O. P. (7) Whether the suit is barred by limitation? O. D. No. 4. (8) Whether the plaint does not show any cause of action against defendant no. 4? O. D. No. 4. (9) Whetherallmembersofjointhindufamilyhavenotbeenimpleaded? if so, its effect? O. D. No. 4. (10) Whether th
