JUDGMENT

Droki Nandan, J.

This is plaintiff's second appeal in a suit for ejectment, arreas of rent and damages for use and occupation in respect of a residential accommodation situate at Kanpur. The trial Court had decreed the suit, but the lower appellate Court has dismissed it. The building, of which the accommodation forms part, according to the plaintiff's case and now according to the findings of the two Courts below also, was constructed after the year 1950. The building is in two parts, being situate on two separate plots of land and bearing two separate municipal numbers ; but the building was constructed jointly by the plaintiff and her husband Ram Rattan. An earlier suit, being Suit No. 1154 of 1965, filed by the present plaintiff and her husband against the defendant for ejectment and arrears of rent, was decreed by the trial Court, but the Court of Civil Judge Kanpur in Civil Appeal No. 253 of 1967 had dismissed the claim for ejectment on the ground that the notice served under Section 106 of the Transfer of Property Act was not valid and effective inasmuch as it was not served by both the landlords, namely, the present plaintiff and her husband Ram Rattan, who were found to be the joint owners and landlords of the property in that suit. The decree for recovery of rent was, however, maintained by the first appellate Court in that suit. The judgment of the trial Court in that suit is dated 951967, vide Ex. 4 and taht of the first appellate Court is dated 12121967, vide ExA8, But, it appears from the saledeed ExA3 that the present plaintiff's husband Ram Rattan had sold the half share in the building to one Smt. Ilaichi Devi on 20101965. From Ex 9. which is a certified copy of an order dated 2941967 of the Court of IInd Additional Munsif Kanpur in suit No. 1154 of 1965, it appears that it was brought to the notice of that Court that the eastern half of the building had been purchased by Smt. Ilaichi Devi, but the defendanttenant resided in the western half portion of the building with which Smt. Illaichi Devi had no concern That Court, it appears, accordingly refused to take notice of the transfer of his share in the property by Ram Rattan to Smt. Ilaichi Devi and proceeded to hear and decide the suit on the basis of the facts as they stood at its commencement.

The main point on which the two Courts below have differed is the question whether the plaintiff alone is the landlord of the accommodation in suit; the trial Court having held that he alone was the landlord while the lower appellate Court, on the other hand, having held that he alone was not the landlord.

The reasoning adopted by the lower appellate Court is firstly that the dacision in the earlier suit operated as res judicuta and the plaintiff cannot be permitted to say in the present case that she alone is the landlord and that her husband Ram Rattan was not a coowner or colandlord with her. It also held that Smt. Ilaichi Devi stepped into the shoes of Ram Rattan and became the coowner and colandlord with the plaintiff. However, despite that finding, the lower appellate Court proceeded to consider the question whether there had been a partition of the building between Smt. Ilaichi Devi and the plaintiff and whether the defendant could be said to be a tenant of the portion of which the plaintiff alone was the owner and landlord. It held that under the saledeed dated 20101965 Ram Rattan had transferred only an undivided share in the entire house and even if the transferee has been put into exclusive possession over a specific portion of the property, that was, "simply an arrangement for the convenient management of the property" that "under the sale deed the transferee became only a coowner and she cannot claim exclusive right over any specified portion unless there is a partition between the transferee and the remaining coowner," that "a partition of an immovable property as we know can taken place either by a registered document or by means of a decree of th