IMPORTANT POINT
Looking at the status of appellants whether as co-owners or as persons inducted in possession by the tenants they have no legs to stand on against a decree of eviction passed against them in favour of respondent No. 1 on the grounds available under Sections 10(2)(i) and 10(3)(b)(iii) of A.P. Buildings (Lease, Rent and Eviction) Control Act, 1950.

Headnote:(i) Transfer of Property Act, 1882-Section 111(d)-Determination of lease by merger-Whether the appellants are absolved of their obligation of delivering possession over the suit premises to the landlord-Respondent No. 1 because the tenancy rights in the suit premises held by respondents Nos. 2 and 3 and transferred by them to the appellants have merged in the ownership entailing determination of tenancy? (No).
       Held : In the case at hand, it cannot be denied, nor has it been denied that the appellants herein are not purchasers of the entire ownership interest in the property. What they have purchased is interest of some out of all the co-owners of the property. The interest of the respondent No.1, whatever be its extent, has not come to vest in the appellants. The appellants have also acquired the tenancy rights in the property. Thus they have acquired partial ownership and full tenancy rights. It cannot be said that the interests of the lessee and the lessor in the whole of the property have become vested in the appellants at the same time and in the same right. The lease cannot be said to have been determined by merger. So long as the interests of the lessee, the lesser estate and of the owner, the larger estate do not come to coalesce in full either the water of larger estate is not deep enough to enable annihilation or the body of lesser interest does not sink or drown fully. (Para 18)
       (ii) Contract Act, 1872-Section 56-Discharge of contract by frustration-Destruction of subject matter of lease contract-Tenancy of building standing on land-Building demolished-Whether tenancy got determined by frustration? (No).
       Held : The tenancy cannot be said to have been determined by attracting applicability of the doctrine of frustration consequent upon demolishing of the tenancy premises. Doctrine of frustration belongs to the realm of Law of Contracts; it does not apply to a transaction where not only a privity of contract but a privity of estate has also been created inasmuch as lease is the transfer of an interest in immovable property within the meaning of Section 5 of the Transfer of Property Act (wherein the phrase the transfer of property has been defined), read with Section 105, which defines a lease of immovable property as a transfer of a right to enjoy such property. (See observations of this Court in this regard in Raja Dhruv Dev Chand vs. Raja Harmohinder Singh & Anr., 1968 (3) SCR 339). It is neither the case of the appellants nor of the respondents No.2 and 3 that the subject matter of lease was the building and the building alone, excluding land whereon the building forming subject matter of tenancy stood at the time of creation of lease. (Para 19)
       We are, therefore, of the opinion that in the event of the tenancy having been created in respect of a building standing on the land, it is the building and the land which are both components of subject matter of demise and the destruction of the building alone does not determine the tenancy when the land which was site of the building continues to exist; more so when the building has been destroyed or demolished neither by the landlord nor by an act of nature but solely by the act of the tenant or the person claiming under him. Ample judicial authority is available in support of this proposition and illustratively we refer to George J. Ovungal vs. Peter, AIR 1991 Kerala 55, Rahim Bux & Ors. vs. Mohammad Shafi, AIR 1971 Allahabad 16, Hind Rubber Industries Pvt. Ltd. vs. Tavebhai Mohammedbhai Bagasarwalla & Ors., AIR 1996 Bombay 389 and Jiwanlal & Co. & Ors. vs. Manot & Co. Ltd., 64 CWN 932. The Division Bench decision of Kerala High Court in Dr. V. Sidharthan vs. Pattiori Ramadasan, AIR 1984 Kerala 181, appears to take a view to the contrary. But that was a case where the building was totally destroyed by fire by negligence of the tenant. It is a case which proceeds on very peculiar facts of its own and was rightly dissented from by Bombay High Court in Hind Rubber Industries Pvt. Ltd. vs. Tayebhai Mohammedbhai Bagasarwalla & Ors., (supra). (Para 23)
       (iii) A.P. Buildings (Lease, Rent and Eviction) Control Act, 1950-Sections 10(2)(i) and 10(3)(b)(iii)-Decree for eviction under-Whether appellants can take shelter behind the plea that they have acquired interest of some of the co-owners? (No)-Appeal dismissed.
       Held : Out of the several co-owners of the property, the respondent No.1 was a landlord dealing with the tenants as such and his landlordship was attorned to and acknowledged by the tenants; the respondents No.2 and 3 shall both be treated as tenants, as they themselves claim to be, without entering into the controversy whether one of them is tenant and other is a sub-tenant or a person inducted in possession by the tenant; the tenants i.e. respondents No. 2 and 3 have parted with possession in favour of the appellants without the consent, express or implied, of the respondent No.1, who is landlord-cum-co-owner of the suit premises; and the appellants being transferees from some of the co-owners of the property, have acquired partial proprietory interest (to the extent of the interest held by their predecessors in interest) in the suit premises. These facts are beyond any pale of controversy so far as the present appeal is concerned. (Para 11)
       In the facts and circumstances of the case, no defence or shelter is available to the appellants behind the plea that they have acquired interest of some of the co-owners. The law as to co-owners is well settled. Where any property is held by several co-owners, each co-owner has interest in every inch of the common property, but his interest is qualified and limited by similar interest of the other co-owners. One co-owner cannot take exclusive possession of the property nor commit an act of waste, ouster or illegitimate use, and if he does so he may be restrained by an injunction. A co-owner may, by an arrangement, expressed or implied, with his other co-owners, possess and enjoy any property exclusively. Such a co-owner can also protect his possession against the other co-owners and if he is dispossessed by the latter, he can recover exclusive possession. (See Jahuri Sah & Ors. vs. Dwarika Prasad Jhunjhunwala & Ors. (1966) Supp. SCR 280). It is beyond any controversy that on the death of late P. Narayana Reddy, his rights devolved upon the several heirs including respondent No.1. The respondent No.1 is the only male person in the body of the co-owners, all others being women. It may be for this reason, or otherwise, that the respondent No.1 was in possession of the property, through tenants, realizing the rent peacefully and with the consent, expressed or implied, of other co-heirs of late P. Nithyananda Reddy. So far as the respondents No. 2 and 3 are concerned, by operation of Section 116 of the Evidence Act, they were estopped from challenging or denying the ownership of the respondent No.1 and his rights in the tenancy premises. As held in Vasudeo vs. Balkishan, (2002) 2 SCC 50, the rule of estoppel between landlord and tenant continues to operate so long as the tenancy continues and unless the tenant has surrendered possession to the landlord. The estoppel would cease to operate only on the tenant openly restoring possession by surrender to the landlord. Neither the respondents No. 2 and 3 nor their successors in interests the persons claiming under them could have denied the title of the respondent No. 1 during the continuance of the tenancy and even thereafter unless they had restored possession over the tenancy premises to the respondent No.1. Looking at the status of the appellants whether as co-owners or as persons inducted in possession by the tenants they have no legs to stand on. If other co-owners could not have dispossessed the respondent No.1 or demolished the property without the consent of respondent No.1 it is difficult to conceive how their transferees could have demolished the tenancy premises and raised their own construction over the land on which the tenancy premises stood earlier. For the foregoing reasons, we find the appeal devoid of any merit and liable to be dismissed. It is dismissed accordingly and with costs. The judgment and decree of the Trial Court as upheld by the High Court are maintained. (Paras 24 and 25)

JUDGMENT

R.C. Lahoti, J.-A decree for eviction passed in favour of the respondent No. 1 on the grounds available under Section 10(2)(i) and 10(3)(b)(iii) of A.P. Buildings (Lease, Rent & Eviction) Control Act, 1960 by the courts below and upheld by the High Court is under challenge in this appeal by special leave, filed by the persons in occupation of the premises. The facts of the case are complex and litigations between the parties are multiple. It will be useful to notice in brief the several litigations between the parties which will have an incidental bearing on the principal controversy and would enable precise appreciation of the facts.

2. The suit premises are non-residential bearing Door No. 18-7-4 situated in Ponniamman Koli Street of Chittoor town. This property was initially owned by one P. Nayarana Reddy. In the year 1959 a suit was instituted for partition of certain joint family properties wherein the suit property was one of the items. P. Narayana Reddy had two sons, namely, P. Nithyananda Reddy, the respondent No.1 and P. Manohar Reddy and five daughters. Late P. Narayana Reddy, his wife and his two sons were arrayed as plaintiffs. Partition of joint family properties was sought for from the other branch of the family headed by brother of late P. Narayana Reddy. P. Narayana Reddy expired in the year 1981. By that time P. Manohar Reddy, the second son, had pre-deceased the father. Five daughters and the widow of pre-deceased son were brought on record by way of substitution in place of late P. Narayana Reddy and his wife who had also expired. A preliminary decree for partition was passed. At one stage in the appeals pending against the preliminary decree there was a compromise entered into by some of the parties in the year 1983. The compromise had the effect of allotting the suit property to the share of P. Nithyananda Reddy, the respondent No.1. However, the compromise decree was recalled and set aside on an application filed by some of the co-sharers who were not joined as parties to the compromise. The appeal against the preliminary decree is still pending. Final decree in the partition suit is yet to be passed. Therefore, for all practical purposes though the shares of the parties to partition stand declared by the decree of the trial court, the declaration is still hanging fire in the pending appeal and partition by metes and bounds is yet to take place.

3. Here it would be relevant to state that during the course of hearing in the present appeal before us, some controversy was sought to be raised as to the extent of share to which P. Nithyananda Reddy, the respondent No.1, would be entitled to in the suit premises. However, we are not concerned with that controversy in the present appeal and leave the same to be adjudicated upon in the partition suit and the pending appeal and proceedings subsequent thereto. For the purposes of the present appeal, we will proceed on an assumption that P. Nithyananda Reddy, the respondent No.1, is a co-owner in the suit premises and there are other co-owners as well; the exact extent or proportion or co-ownership interests being irrelevant for the present proceedings.

4. Late P. Narayana Reddy had inducted a tenant in the suit premises, namely, G. Ethirajulu, the respondent No.2. On the death of P. Narayana Reddy in the year 1981, the tenant, G. Ethirajulu acknowledged P. Nithyananda Reddy as landlord of the property and started paying rent solely to him. He also paid Rs. 3000/- by way of advance and incurred Rs. 1300/- by way of repairs which was adjusted in payment of rent for the period January 1982 to April, 1984. Upto the end of April, 1985 the tenant G. Ithirajulu went on paying rent of the suit premises to P. Nithyananda Reddy, the respondent No.1 treating him as landlord. Thereafter, P. Varadarajulu, the respondent No.3, entered upon the scene. The respondent No.3 is the brother-in-law of respondent No.2. The respondent No.3 claiming himself as tenant, tendered ren

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2003 Supreme(SC) 375

Cases Referred (10)