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2004(2) JLJ 246
Dipak Misra and A.K. Shrivastava, JJ.
Hameeda Begam (Smt.) v. Smt. Champabai Jain and others
Civil Revision No. 1676 of 2001; on reference by Single Judge;
Decided on 25.2.2003.
(2) Accommodation Control Act, 1961 (M.P.) -- Ss. 12(1) (f) and 23-A( b) -- civil suit for eviction dismissed upto second appeal on the ground that tenant has become co-owner by purchase -- it operates as res judicata in subsequent proceedings under S. 23-A(b).
Whether the decision in the second appeal on ... pure questions of law operates as res judicata in the subsequent eviction proceeding under section 23-A of the Act on a different cause of action (bona fide need of the son of the applicant). [Para 2
Held : The learned Single Judge has dealt with the status of the tenant who purchased partial right in respect of tenanted premises from one of the co-owners and in that backdrop came to hold that a case for eviction at the instance of the other co-owners was not maintainable against a co-owner. In our considered view this is a position dealing with the concept of status in contradistinction to the concept of bona fide need. [Para 14
We have no hesitation in our mind in holding that the case of Mulam Chand [1973 JLJ 489] and Sardarimal v. Narayanlal [1980 JLJ 110], would be squarely applicable and accordingly we conclude and hold that the judgment passed in second appeal operates res judicata. 1973 JLJ 489, 1990 JLJ 97(FB) and 1980 JLJ 110 relied on. AIR 1973 Guj. 131, AIR 2000 SC 1238, AIR 1963 Punj. 14, AIR 1998 Kerala 50, AIR 2001 SC 61, 1973 JLJ 764, AIR 1989 SC 1470, AIR 1951 SC 186, AIR 1997 SC 998, AIR 1976 SC 2335, AIR 1989 SC 758, AIR 1988 Pat. 58, AIR 1971 SC 2352, 1976 JLJ 267, 2003(1) JLJ 85 (SC), AIR 1990 SC 867, AIR 1992 Cal. 44 and AIR 1993 HP 141 distinguished. [Para 16
(3) Res judicata -- and binding precedent -- both present in a case -- former will prevail. 1993 JLJ 489 relied on. [Para 14
(4) Accommodation Control Act, 1961 (M.P.)--Ss. 12(1) and 23-A--suit or proceedings for eviction by a co-owner -- cannot be filed when other co-owner objects to eviction of tenant.
Whether a co-owner (co-landlord) can file a suit for eviction against the tenant even if the other co-owner objects to the eviction of the tenant. [Para 2
Held : Any unqualified co-owner can maintain a suit for eviction without joining the other co-owners if such co-owners do not object (emphasis supplied) and again the observation of their Lordships that joinder of the co-owners is suggestive of their concurrence. In view of the aforesaid, there remains no trace of doubt that a co-owner/landlord cannot institute a suit or proceeding for eviction against the tenant. The change of forum or the concept of bona fide need does not make the slightest difference. This question is answered accordingly. 1990 JU 97 (FB) relied on. 2003(1) JU 85 (SC) followed. [Para 20
(5) Accommodation Control Act, 1961 (M.P.) -- Ss. 12(1) and 23-A -- Transfer of Property Act, 1882 -- S. 44 -- tenant purchasing part of property from other co-owner -- not liable to be evicted in suit/proceeding by another co-owner -- being in possession, he need not even file suit for partition.
Whether the tenant who has purchased the undivided share of one of the co-owners is liable to eviction at the instance of other co-owners and then it is for him to bring a suit for partition and separate possession. [Para 2
Held : If the co-owner has a power to exercise veto and a tenant earns the status of co-owner, it cannot be said that he is required first to vacate the premises and thereafter file a suit for partition and separate possession. .... It has been held in the case of Sardarimal [1980 JLJ 110] that a transferee of part rival also refers to lessee entitled to eviction in that case, any co-owner who requires separate possession has to file a suit. 1976 JLJ 267 and 1980 JLJ 110 relied on. [Para 23
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f}rh; vihy esa fof/k ds--- fo‘kq) ç‘uksa ij fn;k x;k fofu‘p; D;k fHkUu okngsrqd ¼vkosnd ds iq= dh okLrfod vko‘;drk½ ij vf/kfu;e dh /kkjk 23&d ds v/khu i‘pkr~orhZ csn[kyh dk;Zokgh esa iwoZ&Uk; ds :i esa çofrZr gksrk gS\ ¼iSjk 2½
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;g vfHkfu/kkZfjr djrs gq, gekjs eu esa dksbZ Hkh lansg ugha gS fd eqykepan ¿1973 ts ,y ts 489À rFkk ljnkjhyky fo- ukjk;.kyky ¿1980 ts ,y ts 110À ds ekeys iwjh rjg ykxw gksaxs rFkk rnuqlkj ge fu"d"kZ fudkyrs gSa vkSj vfHkfu/kkZfjr djrs gSa fd f}rh; vihy esa ikfjr fu.kZ; iwoZ U;k; ds :i esa çofrZr gksrk gSA 1973 ts ,y ts 489] 1990 ts ,y ts 97 ¼iw.kZ U;k;ihB½ rFkk 1980 ts ,y ts 110 voyafcrA , vkb vkj 1973 xqt] 131] , vkb vkj 2000 ,l lh 1238] , vkb vkj 1963 iatkc 14] , vkb vkj 1998 dsjy 50] , vkb vkj 2001 ,l lh 61] 1973 ts ,y ts 764 , vkb vkj 1989 ,l lh 1470] , vkb vkj 1951 ,l lh 186] , vkb vkj 1997 ,l lh 998] , vkb vkj 1976 ,l lh 2335] , vkb vkj 1989 ,l lh 758] , vkb vkj 1989 ,l lh 758] , vkb vkj 1988 iVuk 58] , vkb vkj 1971 ,l lh 2352] 1976 ts ,y ts 267] 2003¼1½ ts ,y ts 85 ¼mPpre U;k-½] , vkb vkj 1990 ,l lh 867] , vkb vkj 1992 dy- 44 rFkk , vkb vkj 1993 fg-ç- 141 çHksfnrA ¼iSjk 16½
¼3½ iwoZ U;k;&rFkk vkc)dj iwoZ fu.kZ;&ekeys esa nksuksa fo|eku&iwoZ U;k; vfHkHkkoh gksxkA 1993 ts ,y ts 489 voyafcrA ¼iSjk 14½
¼4½ LFkku fu;a=.k vf/kfu;e] 1961 ¼e-ç-½&/kkjk 12¼1½ rFkk 23d≶&Lokeh }kjk csn[kyh ds fy, okn ;k dk;Zokgh&Qkby ugha dh tk ldrh tc vU; lg&Lokeh dks vfHk/kkjh dh csn[kyh ij vkifRrÙk gSA
¼5½ LFkku fu;a=.k vf/kfu;e] 1961 ¼e-ç-½&/kkjk 12¼1½ rFkk 23&d&laifÙk varj.k vf/kfu;e] 1882&/kkjk 44&vfHk/kkjh }kjk vU; lg&Lokeh ls laifÙk ds ,d Hkkx dk Ø;&,d vU; lg&Lokeh }kjk oknh dk;Zokgh esa csn[ky fd, tkus ;ksX; ugha&mldk dCtk gksus ds dkj.k mlds }kjk foHkktu ds fy, okn Qkby fd;k tkuk Hkh vko‘;d ughaA
D;k vfHk/kkjh] ftlus lg&Lokfeksa esa ls ,d dk vfoHkDr va‘k Ø; fd;k gS] vU; lg&Lokfeksa }kjk csn[ky fd, tkus ;ksX; gS rFkk foHkktu vkSj i`Fkd dCts ds fy, D;k mls okn ykuk pkfg,\ ¼iSjk 2½
vfHkfu/kkZfjr % ;fn lg&Lokeh dks ohVks ç;qDr djus dh ‘kfDr gS lg&Lokeh dh gSfl;r vftZr dj ysrk gS rc ;g ugha dgk tk ldrk fd mlds }kjk igys ifjlj fjDr fd;k tkuk rFkk rRi‘pkr~ foHkktu vkSj i`Fkd dCts ds fy, okn Qkby fd;k tkuk visf{kr gSA----ljnkjhey ¿1980 ts ,y ts 110À ds ekeys esa vfHkfu/kkZfjr fd;k x;k gS fd Hkkxr% çfr}a}h ds varfjrh dk Hkh funsZ‘k ml ekeys esa csn[kyh ds gdnkj iV~Vsnkj ls gS] ftl fdlh lg&Lokeh dks i`Fkd dCts dh vko‘;drk gS mls okn Qkby djuk gksrk gSA 1976 ts ,y ts 267 rFkk 1980 ts ,y ts 110 voyafcrA ¼iSjk 23½
Misra, J.--1. In this revision preferred under section 23-E of the M.P. Accommodation Control Act, 1961 (for brevity 'the Act'), assail is to the order passed by the Rent Controlling Authority in Case No. 2A/90(7) 97-98 whereby the said authority has rejected the application preferred by the revisionist under section 23-A of the Act.
2. The civil revision was listed for hearing before the learned Single Judge who thought it seemly to refer the matter to be adjudicated by a larger Bench and accordingly he recommended for constituting larger Bench as envisaged under Rule 9(1) of the M.P. High Court Rules and Orders. Accordingly the revision has been placed before us. We may at the outset state that though the entire case has been referred, the learned Single Judge has framed questions to be answered by a larger Bench and in view of that we think it appropriate to reproduce the questions which form the part of the order passed by the learned Single Judge:
"1. Whether a co-owner (co-landlord) can file a suit for eviction against the tenant even if the other co-owner objects to the eviction of the tenant.
2. Whether the tenant who has purchased the undivided share of one of the co-owners is liable to eviction at the instance of other co-owners and then it is for him to bring a suit for partition and separate possession.
3. Whether the decision in the second appeal on the aforesaid pure questions of law operates as res judicata in the subsequent eviction proceeding under section 23-A of the Act on a different cause of action (bona fide need of the son of the applicant)."
3. As the specific questions of law have been referred, we are of the considered view that the same are to be answered and thereafter matter is to be listed before the learned Single Judge for final adjudication. We say so because of the nature of reference. Before we advert to the aforesaid question, we think it condign to refer to the factual score. Four persons, namely, Barkatullah, Amna Bi, Jalaluddin and Hamida Bi had granted lease of a building known as "Kudrat Manzil" to one Shikar Chand Jain by registered lease deed dated 1.5.1968. Barkatullah left for heavenly abode leaving behind his legal heirs, five in number. His daughter Sana Bi and one of his sons, Hafizullah the leassors initiated civil action forming the subject matter of C.S. No. 147-A/88 against the original tenant seeking his eviction on numerous grounds as envisaged under section 12(1) of the Act. The names of lessors other than Hameeda Bi and Hafizullah were deleted from the array of plaintiffs. The original tenant breathed his last during the pendency of the suit. The legal representatives were brought on record. Inder Kumar, one of the legal heirs, purchased the share of Sona Bi, one of the heirs of co-lessor Barkatullah by registered sale deed dated 20.9.1982.
4. The ground for eviction under section 12(1) (f) of the Act was accepted to have been established, but the suit was dismissed on the backdrop that the suit for eviction at the instance of two co-landlords was not maintainable as a portion of undivided house had been purchased by Inder Kumar from Sana Bi: Eventually, the cotroversy travelled to this Court in S.A. No. 813/95 wherein the learned Single Judge came to hold that the suit for eviction was not maintainable against the defendants as one of the heirs of the original tenant had purchased the undivided share of one of the heirs of one co-lessor. The learned Single Judge took note of the fact that there was objection by other co-owners in the matters pertaining to eviction. The learned Single Judge while deciding the Second Appeal did not follow the view laid down by the Full Bench of Patna High Court rendered in the case Sharfuddin v. Bibi Khatija AIR 1988 Patna 58 and placed reliance on the decision rendered in the case of SK. Sattar SK. Mohd. v. Gundappa Amabadas (1996) 6 SCCc 373 and ultimately dismissed the second appea1.
5. After the decision in second appeal was rendered, H
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