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1997 Supreme(MP) 291
IN THE HIGH COURT OF MADHYA PRADESH
S.C. Pandey, J.
Hafizullah and another
Vs.
Smt. Shikhar Chand Jain & Ors.
Second Appeal No. 813 of 1995 (J)
Decided On: 12.05.1997
For Appellant/Petitioner/Plaintiff:Mr. A.S. Usmani, Advocate
For Respondents/Defendant:Mr. J.P. Sanghi, Advocate
Headnote:
LANDLORD AND TENANT - EJECTMENT - SUIT FOR - MAINTAINABILITY - CO-OWNER - OBJECTION - EFFECT - SPLITTING OF TENANCY - ASSIGNMENT OF REVERSION - TRANSFER OF PROPERTY ACT, 1882, SECTION 109.
Fact of the Case:
Plaintiff filed a suit for ejectment of defendants from the suit house on the ground of bona fide requirement under Section 12(1)(e) and 12(1)(f) of the M.P. Accommodation Control Act, 1961. The suit house was let out to Shikhar Chand Jain by the then co-owners, namely, Barkatullah, Anna Bi, Jalaluddin and Hamida Bi. After the death of Barkatullah, his three sons Hafizullah, Habibullah, Inayatullah, his wife Rafiquan Bi and his author Sona Begum (Sona Bai) were entitled to inherit the suit property to the extent of share of Barkatullah as per Muslim Law. The other co-owners representing the line of Shamshuddin were Amna Bi Jaialuddina and Hamida Bi. During the pendency of the suit, the defendant No. 1 Shikhar Chand Jain died. His widow Champabai and his son Puran Chand were brought on record. The defendant No. 2 also died. His widow and his son Krishna Kumar were brought on record. It appears from record that the new defendant No. 5, Indra Kumar Jain is also legal representative of late Shikhar Chand Jain. However, he acquired an interest in the suit property by virtue of two sale deeds executed by Smt. Begum Bi and Smt. Sona Bai consequently, sale-deeds dated 2.2.1982, Ex. D-12 and 20.9.82. Ex. D-13 made in favour of defendant No. 5, were also challenged as void in the eyes of law.
Finding of the Court:
The Court held that the suit filed by the plaintiffs was not maintainable. The judgment and decree passed by the Court below were confirmed. The suit filed by the appellants was dismissed.
Issues: Whether under the facts and in the circumstances of the case, the appellant who is a owner, is entitled to sue the defendant despite the refusal on part of other-co-owner for eviction of the tenant and if yes, whether the appellant is entitled to a decree on the ground of section 12 (1) (f) of the Act ?
Ratio Decidendi: 1. A co-owner cannot unilaterally file a suit for eviction from a portion of the reversion. He can file a suit for and on behalf of all the owners in respect of entire demise with express or implied consent of the owners. 2. When a tenant purchased 1/2 portion of the shop allotted to brother of the appellant during the pendency of appeal before the Supreme Court the Supreme Court came to the conclusion that the respondent having purchased the remaining portion of the shop, became the owner thereof and his interest as a tenant merged in his right as an owner of that portion. He therefore, remained a tenant only in respect of the disputed portion and consequently the suit filed by the appellant in respect of that portion was clearly maintainable.
Final Decision: The suit filed by the appellants was dismissed.
S.C. Pandey, J.
1. This is plaintiffs appeal under section 100 of the Code of Civil Procedure, directed against the judgment and decree dated 25.11.95, passed by XII the Additional District Judge, Jabalpur, in Civil Appeal No. 61-A of 1995 arising out of judgment and decree dated 30-7-1991, passed by IXth Civil Judge Class II, Jabalpur in Civil Suit No. 147-A of 1988.
2. The facts of this case relevant for the decision of the appeal are as follows:- The appellant filed Civil Suit No. 147-A of 1988 for ejectment in respect of suit house bearing Municipal Corporation No. 665, 667/1, 667 (2), 667/3, Kotwali Bazar, Jabalpur, in occupation of respondents No. 1,2, 3 and 5. The name of the house is "udrat Manzil" and is shown in the plaint map as such having two storey. The suit house was let out of late Shikharchand Jain at the rate of Rs. 150/- per month mainly for non-residential purpose, but the tenant was permitted to use the second storey for residential purpose. The suit house was let out by the then co-owners, namely. Barkatullah, Anna Bi, Jalaluddin and Hamida Bi. It was stated in the plaint that original owner of the suit house was Sheikh Gullu. After his death, Barkatullah and Shamshuddin succeeded in his property. After death of Shamshuddin his widow Anma Bi his son Jalluddin and his daughter Hamida Bi inherited his share in the property. Thus, the persons mentioned above, let out the suit house as per Ex. D-1 on 1.5.68. After the death of Barkatullah, his three sons Hafizullah, Habibullah, Inayatullah, his wife Rafiquan Bi and his author Sona Begum (Sona Bai) were entitled to inherit the suit property to the extern of share of Barkatullah as per Muslim Law. The other co-owners representing the line of Shamshuddin were Amna Bi Jaialuddina and Hamida Bi.
3. Initially, Civil Suit No. 147-A/88 was filed by Hafizullah, Hbibullah, Inayatullah, Refiquan Bi. Smt. Sona Bai, Jalaluddin, Smt. Begum Bi wife of Jalaluddin and Smt. Hamida Bi. The original defendants were Shikharchand and Balaprasad. Subsequently, the plaint was amended. The names of Habibullah. Inayatullah, Refiquan Bi, Smt. Sona Bai, Jalauddin and Smt. Begum Bi were deleted from the array of plaintiffs. Only two plaintiffs remained; Hafizullah and Smt. Hamida Begum. Jalaluddin was transposed as defendant No. 4. So far as Habibullah, Inayatullah and Refiquan Bi were concerned, it was claimed they by will dated 12.2.75 Barkatullah be quested his share in the property to Halizullah. All those heirs accepted the will and so their names were therefore, deleted.
4. It appears that during the pendency of the suit, the defendant No. 1 Shikhar Chand Jain died. His widow Champabai and his son Puran Chand were brought on record. The defendant No. 2 also died. His widow and his son Krishna Kumar were brought on record. It appears from record that the new defendant No. 5, Indra Kumar Jain is also legal representative of late Shikhar Chand Jain. However, he acquired an interest in the suit property by virtue of two sale deeds executed by Smt. Begum Bi and Smt. Sona Bai consequently, sale-deeds dated 2.2.1982, Ex. D-12 and 20.9.82. Ex. D-13 made in favour of defendant No. 5, were also challenged as void in the eyes of law.
5. It was claimed in the plaint, as amended finally, that the suit house was bona fide required for the office and residence of Halizullah, the plaintiff No. 1. It appears that the claim was of composite need covered by Section 12(1) (e) and 12 (1) (f) of M.P. Accommodation Control Act, 1961 (henceforth 'the Act' for short). The plaintiff No. 1 stated that he had no alternative accommodation of his own in the city of Jabalpur. It was also claimed that suit accommodation was sub let by defendant No. 1, Shikhar Chand Jain to defendants No. 2 and 3. It was claimed that Indra Kumar, the defendant No. 5 had illegally divided the property. Thus, a ground under Section 12 (1) (b) of the Act was made out. There was another ground for eviction i.e. under Section 12 (1)
