Ramachandra Iyer, C. J.:-

This is an appeal against the final decree in a. partition suit instituted under the following circumstances: The deceased first defendant, Dasappa and his son, Kuppuswami owned, among other properties, four shops in Coimbatore town. On 14th May, 1944, Dasappa sold his undivided half share in the buildings to the plaintiffs in the suit. Soon after the sale Dasappa who was carrying on business in the premises sold obtained a lease from his vendee of the undivided share conveyed to him. Subsequently the vendee filed a suit O.S. No. 43 of 1959 for partition and delivery of separate possession of his share in the properties. There was a preliminary decree in the suit. When the plaintiffs applied for the passing of the final decree, Kuppuswami (second defendant), Dasappa having died, inter alia contended that in as much as he was in possession as a tenant of the premises under the plaintiffs he would be entitled to protection afforded by the Madras Buildings (Lease and Rent Control) Act and that therefore no effective decree for delivery of possession could be passed in the case. The learned Subordinate Judge dealt with the contention in the way it deserved ; but at the same time he observed that the second defendant could resist, pleading his rights at the stage of delivery of possession. The second defendant was not satisfied with the provision and he has come up in appeal. The plaintiff has filed a memo, of cross-objections stating that there could be no relationship of landlord and tenant between the parties.

We are afraid that the learned Subordinate Judge has done less than justice to the plaintiffs. The lease, as we said, was of an undivided moiety of the buildings. By reason on the sale deed executed by Dasappa in favour of the plaintiffs, the the vendor and the vendees became thereafter co-tenants of the property. The rights of the co-tenants who hold the undivided property between themselves are now well-settled. Each has an undoubted right to demand and obtain partition by metes and bounds of the joint property but till that is done it cannot be said that any of the sharers has got an exclusive right to any part of the joint property. In theory such a co-tenant is entitled to be in possession and to use every part of the common property so long as he does not exclude his co-tenant. In the instant case the vendors wishing to have undisturbed possession of the buildings entered into an arrangement by which compensation for such exclusive possession was agreed to be paid, though describing it as rent. We cannot therefore regard the arrangement between the parties as strictly conforming to a case of agreement for lease.

But assuming that there was one by way of lease, as indeed it purports to be so, the question then is whether the lease was of the building within the meaning of the Rent Control Act. The term “Building” has been defined in section 2 (i) as any building, hut or part of a building or hut let or to be let separately for residential or non-residential purposes. In a case of this kind where one co-tenant allows another co-tenant to enjoy his undivided share, it cannot be said that he has such exclusive right of the property, as to be capable of being let out. Much less can it be held that any definite part of such a building has been let. No co-tenant can say that he is the owner of any part or designated part of the building. His interest will be to the extent of share owned by him in the entirety of the property. Therefore, if he, under an arrangement purports to let out or enters into an arrangement for the enjoyment of the property by the other, that transaction can be regarded only as an arrangement with respect to the undivided share of the entire property and not with reference to any building or part of the building.

We are, therefore, unable to regard the arrangement of the year, 1944, as in any way entitling the second defendant to claim any rights under the Rent Control Act, as t

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