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Monday 1 January 2018

Whether purchaser of property can remain in possession

of joint family house if it is used for commercial purpose?
It is not disputed that the suit house was given on rent to
Sheikhar Chand Jain in the year 1968. In first round of
litigation a Civil Suit No. 147-A/1998, it is found proved
that the suit house was let out for business purposes,
where defendants were running an electrical shop. It is
also found proved that this house is required for legal
profession of plaintiff Hafizulla under Section 12(1)(f) of
M.P. Accommodation Control Act. In subsequent Civil Suit
No. 11-A/2002 and RCA case No. 2-A/90(7)97-98, it is
pleaded by plaintiff that suit house was let out for business
purposes and it is bonafidely required for business/office
of advocate. In the present suit plaintiff Hafizulla (PW-1)
and his son M. Shafiqulla (PW-2) in evidence have not
stated that the suit house is a dwelling house, used for
residential purposes. Thus, from pleading and evidence
of the parties, it is established that the suit house is
being used for business purposes since, 1968 and still
the plaintiff wants to use it for his profession of
Advocacy. The house is not being used for residential
purpose since more than 45 years and in future the
plaintiff is not intending to use it as residence. It was
completely let out to tenant and considering the long
period of tenancy, it cannot be said that it had been
given on rent temporarily. Therefore, it cannot be said
that the disputed house is a dwelling house within the
meaning of Section 4 of Partition Act and Section 44
of Transfer of Property Act. Hence, the provisions of
above acts are not applicable in respect of disputed
house. Therefore, the case law relied upon by plaintiff are
not applicable in facts of present case because mainly
they relates to dwelling house.
IN THE HIGH COURT OF MADHYA PRADESH
(JABALPUR BENCH)
First Appeal No. 1194/2011
Decided On: 01.02.2017
Hafizulla and Ors. Vs. Puran Chand Jain and Ors.
Hon'ble Judges/Coram:
Rajendra Menon, Actg. C.J. and Anurag Shrivastava, J.
Citation: AIR 2017(NOC) 1086 MP

1. Being aggrieved by judgment and decree dated

02.12.2011, passed by III Additional Judge to the Court of
District Judge, Jabalpur in Civil Suit No. 3-A/2010, the
appellants/plaintiffs have preferred this First Appeal under
Section 96 of Civil Procedure Code, whereby the learned
trial Court has dismissed the suit for possession and
mesne profit with regard to the disputed premises.
2. The facts giving rise to this appeal in narrow compass
are that the plaintiff Hafizulla and Smt. Hameeda Begum
filed Civil Suit No. 3-A/2010 before the trial Court claiming
that they are owner and landlord of house bearing Nos.
667, 667/1 to 667/3 situated at Kotwali ward, Jabalpur
known as "Kudarat Manzil" which is a double story
building. This suit house was let out to Sheikhar Chand
Jain by registered lease deed dated 01.05.1968 for a
period of 10 years @ Rs. 150/- per month rent for non-
residential purpose. The plaintiffs had instituted the Civil
Suit No. 147-A/1998 against the original tenant Sheikhar
Chand Jain for his eviction from suit house on various
grounds under Section 12(1) of M.P. Accommodation
Control Act. During pendency of the said ejectment suit, in
the life time of original tenant Sheikhar Chand Jain, his
son Inder Kumar Jain (Defendant No. 3) had purchased
undivided share of the suit house from the two co-owners
Smt. Sona Bi and Smt. Begum Bi by registered sale deed
dated 03.02.1982 and 20.09.1982 respectively. In Civil
Suit No. 147-A/1988 the Court vide judgment dated
30.07.1981 found the bonafide need of the plaintiff No. 1
Hafizulla established, but suit was dismissed on the
ground that plaintiff No. 1 is not absolute owner of the suit
house, therefore, the suit is not maintainable. The plaintiff
preferred First Appeal and after its dismissal Second
Appeal No. 813/1995 was filed before High Court.
This Second Appeal was also dismissed vide judgment
dated 12.05.1997 on the ground that the defendant No. 3
Inder Kumar Jain had purchased the undivided share of
two co-owners and became co-owner of the suit house,
hence the suit for eviction of a co-owner by another co-
owner from joint property is not maintainable. Against this,
plaintiff filed SLP(C) No. 16299/1997 before Hon'ble
Supreme Court, which was also dismissed on 15.09.1997
in limine.
3. It is further pleaded by appellant/plaintiff that after
dismissal of SLP the plaintiff filed Civil Suit No. 11-A/2002
against the defendant for declaration, that two sale deeds
dated 03.02.1982 and 20.09.1982 executed in favour of
defendant No. 3 Inder Kumar Jain as null and void and
also ejectment of defendant/tenants from suit house.
During pendency of this suit plaintiff No. 2 Smt. Hameeda
Begum filed a separate suit before Rent Control Authority
RCA Case No. 2A/90(7) 97-98 under Section 23-A of M.P.
Accommodation Control Act, for eviction of defendant on
the ground of bonafide requirement of her son Mohd.
Anwar. The Rent Control Authority considering earlier
judgment in Civil Suit No. 147-A/1998 dismissed the suit
on the ground of res-judicata. Against this order, Smt.
Hameeda Begum preferred a Civil Revision No.
1676/2001 before High Court, which was dismissed vide
order dated 25.02.2003 on the ground that the judgment of
S.A. No. 813/1995 has effect of res-judicata and the suit is
not maintainable.
4. It is further averred that in Civil Suit No. 11-A/2002 the
Additional District Judge (Fast Track) Jabalpur, relying
upon the finding of Second Appeal No. 813/1995 as well
as Civil Revision No. 1676/2001 dismissed the suit on the
ground of res-judicata. Against this, the plaintiffs filed First
Appeal No. 451/2003 before High Court. This appeal was
allowed by Division Bench of this Court and decreed the
suit of the plaintiffs by holding that the decision of Civil Suit
No. 147-A/1985 and S.A. No. 813/1995 does not operate
as res-judicata and decree of eviction of defendants from
suit house was passed.
5. It is further pleaded that, against the order dated
25.02.2003 of Civil Revision No. 1676/2001, the plaintiff
Hameeda Begum filed Civil Appeal No. 1180/2006 before
Supreme Court. Similarly, against the order dated
27.02.2009 passed by High Court in F.A. No. 451/2003,
the defendant filed Civil Appeal No. 5312/2010. Hon'ble
Supreme Court by passing a common order on
13.07.2010 allowed the defendants' appeal C.A No.
5312/2010 and by setting aside the judgment and decree
passed in F.A. No. 451/2003, and thereby dismissed the
plaintiffs' suit on the ground of res-judicata and
constructive res-judicata with an observation that the
decision of Promod Kumar Jaiswal v. Bibi Husn Bano and
Others MANU/SC/0346/2005 : (2005) 5 SCC 492 will not
apply as precedent in inter party suit. Hon'ble Supreme
Court vide common order dated 13.07.2010 dismissed
Smt. Hameeda Begum's Civil Appeal No. 1180/2006 on
the ground of res-judicata.
6. It is further pleaded by plaintiffs that the findings of
Supreme Court passed in C.A. No. 1180/2006 and C.A.
No. 5312/2010 vide common dated 13.07.2010 confirming
findings of S.A. No. 813/1995 in judgment dated
12.05.1997 holding that the defendant No. 3 Inder Kumar
Jain became the co-owner, hence the suit is not
maintainable against the co-owner is coram non-judice.
Since, SLP (C) No. 16299/1997, which was preferred by
plaintiffs against the judgment dated 12.05.1997 of S.A.
No. 813/1995 was dismissed by Supreme Court on
15.09.1997 in limine. Therefore, this judgment shall not
operate as res-judicata. It is also settled law that the
principle of res-judicata or constructive res-judicata is
not applicable, if the decision has been rendered in
rent cases. The binding precedent laid down by the
Supreme Court in the matter of Promod Kumar Jaiswal v.
Bibi Husn Bano MANU/SC/0346/2005 : (2005) 5 SCC 492
is fully applicable in the instant suit.
7. It is further pleaded that, suit house is bonafidely
required by plaintiff No. 1 Hafizulla and his son Mohd.
Shafiqullah, who are Advocate for their Office for non-
residential purpose. The suit house was let out on
01.05.1968 for a period of 10 years for non-residential
purpose in which defendant running Electrical goods shop
having occupied total area 2025 Sq.ft. The suit house is
situated at market place having rental value at present Rs.
2000/- per day. The defendants become tress passer after
expiry of lease period. Therefore, by filing instant suit the
plaintiffs sought the relief of declaration that the defendant
No. 1 to 3 are tenant/co-tenant in suit house and decree of
eviction under Section 12 (1) (f) of M.P. Accommodation
Control Act, 1961 and mesne profit @ Rs. 1000/- per day
from the date of filing of the suit till eviction of
tenants/defendants.
8. In the written statement filed by the defendants, it is
denied that the suit house is a dwelling house. It is further
pleaded that the disputed house was the property of Late
Sheikh Dullu. After his death, his property was partitioned
among his sons in 1951 and the suit house was given in
share of his sons Shamsuddin and Barkatullah. In this
partition, the half north part of the suit house came in
share of Barkatullah and remaining south part was given
to Shamsuddin. After the death of Shamsuddin, his son
Jalaluddin inherited his share in suit house and later on,
he had gifted his share to his wife Begam Bi by executing
Tamleefnama dated 17.04.1974 with the consent of
Barkatullah. Thus, Begam Bi was the owner of half south
portion of the house and she was receiving the rent @ Rs.
75/- per month from Sheikhar Chand Jain for her part of
house.
9. It is further averred by the defendants that Barkatulla,
Amina Bi, Jalaluddin and Hamida Bi had granted the lease
of building "Kudarat Manzil" to Sheikhar Chand Jain by
registered lease deed dated 01.05.1968. All the lessors
instituted a Civil Suit No. 147-A/1988 against the original
tenant Sheikhar Chand Jain for eviction on various
grounds under Section 12(1) Accommodation Control Act.
Later on name of the lessors other than Hamida Bi and
Hafizulla were deleted from the array of the plaintiffs.
During pendency of the suit, original tenant Sheikhar
Chand Jain died and his LRs were brought on record as
successor tenants. One of LRs of Sheikhar Chand Jain,
his son Inder Kumar Jain had purchased the share of Smt.
Begam Bi vide sale deed dated 03.02.1982 and share of
Smt. Sona Bi vide sale deed dated 20.09.1982 in suit
house. It is claimed that by virtue of these sale deeds,
Inder Kumar Jain became the co-owner of the suit house
and retains possession in the suit house as co-owner.
10. The defendants have admitted that the Civil Suit No.
147-A/1988 was dismissed by the trial Court on
30.07.1991, thereafter, first appeal No. 61-A/1995 and
Second Appeal No. 813/1995 filed by the plaintiffs also
dismissed. Against this plaintiffs filed SLP before Apex
Court which was dismissed in limine.
11. In written statement the defendants have not denied
the averments in plaint regarding ejectment suit filed by
Smt. Hameeda Bi before Rent Control Authority under
Section 23(a) of M.P. Accommodation Control Act and
Civil Suit No. 11-A/2002 filed by the plaintiffs before
Additional District Judge (Fast Track), Jabalpur and its
results. It is stated that, the decisions of Hon'ble Supreme
Court in C.A No. 1180/2006 and C.A. No. 531/2010 dated
13.07.2010 finally resolved the controversy. It is held that
the decision of Civil Suit No. 147-A/1985 and S.A. No.
813/1995 dated 12.05.1997 have the effect of res-judicata
in present suit. The plaintiff has filed so many suits and
proceedings for eviction of the defendants repeatedly on
same grounds and misusing the process of Court. By
giving details of various litigation in paras No. 1(e) to 1(m)
of the written statement, the defendants submit that all the
issues raised in present suit has already been decided
finally in earlier litigation, therefore, the present suit is not
maintainable on the ground of res-judicata. Since,
defendant No. 3 Inder Kumar Jain is possessing the suit
house as co-owner, therefore, plaintiffs are not entitled to
get any mesne profit. The plaintiffs' suit is not maintainable
and is liable to be dismissed.
12. The trial Court after recording the evidence of the
parties vide impugned judgment dated 02.12.2011
dismissed the suit holding that in view of common order
dated 13.07.2010 of Hon'ble Apex Court in Civil Appeal
No. 1180/2006 and Civil Appeal No. 5312/2010, the
findings of S.A. No. 813/1995 shall operate as res-judicata
in instant suit, therefore, the suit is not maintainable, the
possession of defendant Inder Kumar Jain in suit house is
as of a co-owner, therefore, the plaintiffs are not entitled to
claim mesne profit. Against this, the plaintiffs have
preferred present appeal.
13. Heard learned counsel for the parties and perused the
record.
"1. For disposal of this appeal, the following questions
arises for consideration:-
i) Whether, finding of S.A. No. 813/1995 vide judgment
dated 12.05.1997 shall have the effect of Res-judicata in
instant suit?
ii) Whether, the appellants/plaintiffs are entitled for
claiming mesne profit from the defendants?"
14. To understand the controversy, details of the facts of
previous litigations between the parties are worth
mentioning.
15. The disputed house bearing Nos. 667, 667/1 to 667/3
situated at Kotwali ward, Jabalpur known as "Kudrat
Manzil" belongs to Late Sheikh Dullu. After death of
Sheikh Dullu this property was inherited by his sons
namely Barkatulla and Sheikh Shamsuddin. At present,
Barkatulla and Sheikh Shamsuddin both are dead.
Barkatulla legal heirs wife Smt. Rafiquan Bi, sons
Hafizullah (plaintiff), Inayatullah, Habibullah and daughter
Smt. Sona Bi had inherited the interest of Late Barkatulla
in the property. Similarly, the other co-owners were also
legal heirs of Shamsuddin as his wife Smt. Amina Bi, son
Jalaluddin and daughter Hamida Bi. Smt. Begum Bi is wife
of Jalaluddin.
16. It is not disputed that Barkatulla, Amina Bi, Jalaluddin
and Hamida Bi had granted the lease of building "Kudrat
Manzil" to Sheikhar Chand Jain by registered lease deed
dated 01.05.1968. All the lessors instituted a Civil Suit No.
147-A/1988 against the original tenant Sheikhar Chand
Jain for eviction on various grounds under Section 12(1)
M.P. Accommodation Control Act. Later on name of the
lessors other than Hamida Bi and Hafizulla were deleted
from the array of the plaint. During pendency of the said
ejectment suit in the life time of the original tenant
Sheikhar Chand Jain, his son Inder Kumar Jain has
purchased a portion of the suit house from Smt. Begum Bi
wife of Jalaluddin by a registered sale deed dated
03.02.1982. Thereafter, Inder Kumar Jain further
purchased an undivided share of Smt. Sona Bi in the suit
house from her vide registered sale deed dated
20.09.1982. During the pendency of the Civil Suit No. 147-
A/1988 the defendant Sheikhar Chand Jain had died. His
wife Smt. Champa Bai and his son Puran Chand Jain and
Inder Kumar Jain were brought on record as legal heirs.
17. In the above suit the IX Civil Judge Class-II vide
judgment dated 30.07.1991 had found bonfide need of the
plaintiff Hafizulla established for his profession of
Advocate under Section 12(1)(f) of the Act, but dismissed
the suit on the ground 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 Jain from Smt. Sona Bi. Aggrieved by the judgment
and decree the appellants have filed First Civil Appeal
before XII ADJ, registered as Civil Appeal No. 61-A/1995,
which was dismissed on 28.11.1995. Thereafter, the
Second Appeal No. 813/1995 was filed by plaintiff, in
which the high court had also upheld the bonafide need of
the appellants but dismissed the appeal by giving following
finding:
"Defendant Inder Kumar Jain had purchased the undivided
share of Smt. Sona Bi and Smt. Begum Bi by sale deeds
dated 02.02.1982 and 20.09.1982 and have become the
co-owner of the property. His share qua sole owner has
not been specified. It would be most unjust and inequitable
to throw out a co-owner from the possession of the suit
accommodation merely because as the tenant he had
purchased the share of the co-owner. His legal rights to
retain possession till partition qua co-owner cannot be
whittled down, therefore, the suit is not maintainable."
Thus, the judgments and decree passed by the Courts
below were confirmed. Against this judgment in second
appeal, the plaintiffs preferred SLP (Civil) No. 16299/1995
before the Hon'ble Supreme Court, which was dismissed
on 15.09.1997 in limine.
18. Shri Hafizulla/appellant has submitted that the
previous Civil Suit No. 147-A/1985 has been filed for
eviction of tenant on the ground of bonafide requirement of
landlord under Section 12(1)(f) of M.P. Accommodation
Control Act. In this Suit tenancy was admitted and no
question of title of landlord was raised. Therefore, decision
of this suit out of which Second Appeal No. 813/1995
cannot operate as res judicata in the subsequent suit
which is filed for eviction on the basis of title. The instant
suit is based on title also, apart from the ground under
Section 12(1)(f) of the M.P. Accommodation Control Act
and also on fresh cause of action. Inder Kumar Jain has
purchased the share of one of co-owner during pendency
of previous suit in 1982 in the life time of his father
Sheikhar Chand Jain, who was the original tenant. After
the death of Sheikhar Chand Jain the tenancy right
devolved upon the LRs of Sheikhar Chand Jain i.e. wife
Champa Bai, and sons Puran Chand Jain, Inder Kumar
Jain etc.. Therefore, Inder Kumar Jain is not the only
person who inherited the tenancy. There is no merger of
tenancy by virtue of Section 111(d) of Transfer of Property
Act, because, Inder Kumar Jain had purchased only part
of property. The Apex Court has laid down in Pramod
Kumar Jaiswal and others v. Bibi Husnbano and Others,
MANU/SC/0346/2005 : AIR 2005 SC 2857 thus:-
"6. Ownership of the property which is the subject matter
of tenancy is certainly a larger estate than the tenancy
itself and naturally larger than the sub-tenancy. If the sub-
tenant acquires the entire interest of the owner in the
whole of the estate forming the subject matter of sub-
tenancy, the sub-tenancy merges into ownership and the
estate of sub- tenant stands enlarged into that of a full
owner. The subtenant cannot be the owner and the sub-
tenant both at the same time. Of course, the situation
would have been different if the sub-tenant would not have
acquired the entire estate of the owner or the ownership
interest in the entire estate forming subject matter of
sublease, as was the case in Badri Narain Jha and Others
v. Rameshwar Dayal Singh and Others,
MANU/SC/0054/1951 : AIR 1951 SC 186 or in Shaikh
Faquir Baksh v. Murli Dhar and Others,
MANU/PR/0179/1931 : AIR 1931 PC 63.
19. Shri Hafizulla, further argued that in the instant case
the interests of the leasee and the lessor in the whole of
the property do not become vested at the same time in
one person in the same right, therefore, there is no
determination of tenancy on the ground of merger. In view
of the above case law of Hon'ble Apex Court, the tenancy
of respondent did not come to an end, their position as
tenant continued and they are bound to comply with the
requirement of Rent Control Act., and liable to be evicted
under the grounds mentioned in Section 12(1) of M.P.
Accommodation Control Act. The decision of Civil Suit No.
147-A/85 and Second Appeal No. 813/1995 are per in
curium in the light of judgment of Apex Court in Pramod
Kumar Jaiswal (supra), which has effect of binding
precedent. This is a pure question of law, whether due to
execution of alleged sale deeds dated 02.02.1982 and
20.09.1982 in favour of Inder Kumar Jain the tenancy
stood extinguished by merger under Section 111 (d) of
Transfer of Property Act? Hon'ble Apex Court in Isabella
Johnson (Smt.) v. M.A. Susai MANU/SC/0228/1991 :
(1991) 1 SCC 494 : AIR 1991 SC 993 following the
decision in Mathura Prasad Bajoo Jaiswal v. Dossibai N.B.
Jeejeebhoy MANU/SC/0420/1970 : (1970) 1 SCC 613 has
laid down that, "it is well settled that there will be no
estoppel on a pure question of law and in this case the
question of jurisdiction is pure question of law." Shri
Hafizulla contends that in earlier suit the decision rendered
by this Court in S.A No. 813/1995 was not on the question
of law of merger of tenancy into co-ownership and Section
111 (d) of Transfer of Property Act was not considered,
thus it cannot be said to be operating as res judicata in the
present suit based on fresh cause of action of ejectment of
tenant and title. In Employees Welfare Association
Vs.Union of India and Others MANU/SC/0582/1989 : AIR
1990 SC 334 the Apex Court has laid down that "the
decision on an abstract question of law or question of
jurisdiction would not operate as res judicata in a
subsequent suit or proceeding if the cause of action is
different." In Jaisingh Jairam Tyagi and Others v.
Mamanchand Ratial Agrawal and Others
MANU/SC/0471/1980 : (1980) 3 SCC 162 the Apex Court
has laid down "the decision cannot operate res judicata
against legislative mandate/direction. Decision cannot be
permitted to attain special rule or law in derogation of the
rule declared by legislature."
20. It is further argued by Shri Hafizulla that the SLP filed
against the decision of S.A. No. 813/1995 was dismissed
by Apex Court in limine vide order dated 15.09.1997. Apex
Court in Fuljit Kaur v. State of Punjab and Others,
MANU/SC/0411/2010 : AIR 2010 SC 1937 has laid down
that:-
"8. There is no dispute to the settled proposition of law that
dismissal of the Special Leave Petition in limine by this
Court does not mean that the reasoning of the judgment of
the High Court against which the Special Leave Petition
has been filed before this Court stands affirmed or the
judgment and order impugned merges with such order of
this Court on dismissal of the petition. It simply means that
this Court did not consider the case worth examining for
the reason, which may be other than merit of the case.
Nor such an order of this Court operates as res judicata.
An order rejecting the Special Leave Petition at the
threshold without detailed reasons therefore does not
constitute any declaration of law or a binding precedent."
Similar view is also expressed in case law Saurashtra Oil
Mill Association, Gujarat v. State of Gujarat and another,
MANU/SC/0110/2002 : AIR 2002 SC 1130, Y.
Satyanarayan Reddy v. Mandal Revenue Officer, A.P.
MANU/SC/1551/2009 : AIR 2010 SC 1440 and Subhadra
Rani Pal Choudhary v. Sheirly Weigal Nain and Others,
MANU/SC/0263/2005 : AIR 2005 SC 3011. In Rattiram
and Others v. State of M.P through Inspector of Police
MANU/SC/0125/2012 : AIR 2012 SC 1485, it is held that:-
"It is settled rule that if a decision is given per incuriam the
Court can ignore it."
21. In Union of India and another v. Maniklal Banerjee
MANU/SC/3283/2006 : AIR 2006 SC 2844:- it is observed
by Hon'ble Apex Court in para No. 17, 18 and 19 as
"dismissal of Special Leave Petition by Supreme Court
would not mean that any law within meaning of Article 141
was laid down thereby- Moreover, said decision rendered
per incuriam as statutory provisions relevant for
determining issue was not taken into consideration. It
would not create any binding precedent."
22. In case law Narmada Bachao Andolan v. State of M.P
MANU/SC/0599/2011 : AIR 2011 SC 1989 while
explaining the doctrine of Per Incuriam Hon'ble Apex Court
in para No. 63 observed that the Courts are not to
perpetuate an illegality, rather it is the duty of the Courts to
rectify mistakes. While dealing with a similar issue, this
Court in Hotel Balaji & Ors. Etc. v. State of A.P & Ors. Etc.
etc., MANU/SC/0148/1993 : AIR 1993 SC 1048 : (1993
AIR SCW 3) observed as under:-
"To perpetuate an error is no heroism. To rectify it is the
compulsion of judicial conscience."
23. Sajjadanashin Sayed Md. B.E Edr. (D) by L.Rs v.
Musa Dadabhai Ummer and Others, MANU/SC/0122/2000
: AIR 2000 SC 1238:-
"The words used in S. 11 CPC are "directly and
substantially in issue". If the matter was in issue directly
and substantially in a prior litigation and decided against a
party then the decision would be res judicata in a
subsequent proceedings. Judicial decisions have however
held that if a matter was only 'collaterally or incidentally' in
issue and decided in an earlier proceeding, the finding
therein would not ordinarily be res judicata in a later
proceeding where the matter is directly and substantially in
issue. A collateral or incidental issue is one that in
ancillary to a direct and substantive issue: the former is an
auxiliary issue and the latter and principal issue. The
expression 'collaterally or incidentally' in issue implies that
there is another matter which is 'directly and substantially'
in issue." (Paras 12, 14)
24. N.R. Narayan Swamy v. Rancis Jagan,
MANU/SC/0404/2001 : AIR 2001 SC 2469:-
"Karnataka Rent Control Act (22 of 1981) Ss 45, 21.
Houses and Rents Eviction successive suits can be filed
by landlord on ground of bona fide requirement or non-
payment of rent. First suit withdrawn as not pressed.
Second suit not barred either by O.23, R.1(4) of Civil P.C
or by S. 45 of Karnataka Act. 2000 (3) Kant LJ 561
Reversed.
In eviction proceedings under the Rent Act the ground of
bona fide requirement or nonpayment of rent is a recurring
cause and, therefore, landlord is not precluded from
instituting fresh proceedings. In an eviction suit on the
ground of bona fide requirement the genuineness of the
said ground is to be decided on the basis of requirement
on the date of the suit. Further, even if a suit for eviction
on the ground of bona fide requirement is filed and is
dismissed it cannot be held that once a question of
necessity is decided against the landlord he will not have a
bona fide and genuine necessity ever in future. In the
subsequent proceedings, if such claim is established by
cogent evidence adduced by the landlord, decree for
possession could be passed."
25. Per contra, learned counsel for the respondents
submits that after dismissal of SLP against the judgment
of Second Appeal No. 813/1995, the dispute was finally
resolved. The decision of S.A. No. 813/1995 is final and
binding upon the parties and the findings shall operate as
res-judicata. All the grounds raised by the
appellants/plaintiffs had been considered in S.A. No.
813/1995 and also in Civil Revision No. 1676/2001.
Therefore, subsequent suits for the same relief shall be
barred by principle of res-judicata and constructive res-
judicata. The law of precedents are not applicable here.
After getting defeated in original Civil Suit No. 147-A/1998
and its Second Appeal No. 813/1995, the plaintiffs have
instituted multiple litigations for the same relief on the
same grounds, wherein the similar questions for
adjudication have been raised for consideration. These
suits are not maintainable and have been filed only to
harass the defendants. The details of some of litigations
are as under:-
"(a) the plaintiff Hafizulla had filed a Civil Suit No.
39-A/1999 before 11th Additional District Judge, for
declaration that the judgment and decree passed in earlier
Second Appeal No. 813/1995 be declared as null and void
and a decree of eviction be granted in favour of plaintiffs
against the defendants namely Smt. Champa Bai, Puran
Chand Jain and Inder Kumar Jain. This suit has been
dismissed by the trial Court and thereafter, the First
Appeal No. 537/1999 has also been dismissed by
coordinate Bench of this Court vide judgment dated
12.07.2013. (see Hafizulla v. Puran Chand Jain and
another MANU/MP/1835/2013 : 2013 (3) JLJ 186).
Thereafter, the Review Petition No. 659/2013 has also
been dismissed vide order dated 23.06.2014.
(b) Plaintiff Hafizulla had filed another case Civil Suit No.
95-A/2002 on 20.08.1997 against defendant Inder Kumar
Jain for declaration of the sale deed dated 20.09.1982
executed by Smt. Sona Begum in favour of Inder Kumar
Jain as null and void, and for grant of mandatory injunction
to evict Inder Kumar Jain from suit house. This suit was
dismissed by the trial Court and against this, First Appeal
No. 444/2003 has been filed by plaintiff in this Court.
(c) Plaintiff Hamida Begum had filed a Civil Suit No. 94-
A/2002 on 06.07.1998, for eviction of Inder Kumar Jain
from suit house and mesne profit on the ground that Inder
Kumar Jain is stranger purchaser, who cannot claim joint
possession with other co-landlord/co-owner. His
possession is unauthorized. This suit was also dismissed
by 15th Additional District Judge, Fast Track Court, vide
order dated 14.07.2003 on the ground of res-judicata.
Against this order, plaintiffs have filed First Appeal No.
664/2006 before this Court.
(d) Plaintiff Hafizulla has filed the Civil Suit No. 24-A/2002
against Smt. Champa Bai, Puran Jain and Inder Kumar
Jain on 08.05.1998 for declaration that the defendants are
tress-passer in suit house and decree for eviction on the
ground of Section 12(1) (f) of M.P. Accommodation
Control Act and also for grant of mesne profit. This suit
has been dismissed by 15th Additional District Judge, vide
order dated 14.07.2003 on the ground of res-judicata.
Against this, the plaintiffs have preferred the First Appeal
No. 512/2003 before this Court."
26. To appreciate, the arguments of Shri Hafizulla it would
be appropriate to consider the decision rendered in
previous litigation between the parties, in respect of the
suit property. This is the fifth round of litigation. First round
is Civil Suit No. 147-A/1998 filed by the plaintiff for eviction
under Section 12(1)(f) of the Act against defendants, this
suit was dismissed and First Appeal and Second Appeal
No. 813/1995 was also dismissed. The details of this
litigation are given in paras No. 16 and 17 of judgment.
27. After dismissal of S.A. No. 813/1995 and SLP, one of
the plaintiff Smt. Hamida Begum filed a separate suit
before Rent Control Authority RAC No. 2-A/90(7) 1997-98
for eviction of the defendant under Section 23-A of the Act.
The RCA has dismissed the suit on the ground of res
judicata. Against this plaintiff Hamida Begum filed a Civil
Revision No. 1676/2001 before High Court. The
Coordinate Bench of this High Court formulated the
following questions and by giving findings against the
plaintiff dismissed it vide order dated 25.02.2003.
Questions in Civil Revision No. 1676/2001:-
i) 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?
ii) 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?
iii) 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 (bonafide need of the
son of the applicant)?
Findings:-
1. A co-owner/landlord cannot institute a suit or
proceeding for eviction against the tenant, the change of
forum or the concept of bonafide need does not make the
slightest difference.
2. If a tenant who has purchased the property from a co-
owner and gets into the shoes of the co-owner need not
file a suit for partition and separate possession and there
is no obligation on his part to handover possession and
thereafter sue for partition and separate possession. Any
co-owner who wants to have possession, by meets and
bounds may file a suit for partition and claim separate
possession and thereafter seek eviction of the tenant from
the part of reversion falling to his share after partition.
3. The judgment rendered in the Second Appeal No. 48/88
operates as re judicata despite pure questions of law
decided therein. We may also add here that the judgment
having been delivered intere se parties, the same would
have been otherwise binding on us, in view of the law laid
down by this Court in the Case of Shyamacharan v.
Sheojee Bai, MANU/MP/0070/1964 : 1964 MPLJ 502 as
well as the conception in the case of State of M.P.
Mulamchand, MANU/MP/0066/1973 : 1973 MPLJ 832 that
the doctrine of res judicata over weighs the binding
precedent.
4. Thus, a Civil Revision No. 1676/2001 was dismissed,
vide order dated 25.02.2003."
28. The plaintiff filed third round of litigation in Civil Suit
No. 11-A/2002 against the defendant for declaration of as
sale deeds dated 03.02.1982 and 20.09.1982 said to be
executed in favour of Inder Kumar Jain as null and void
and also ejectment of defendant/tenant from suit house
under Section 12(1)(f) of the Act. This suit was dismissed
by Additional District Judge (Fast Track), District Jabalpur
on the ground of res judicata. Against this the plaintiff filed
the First Appeal No. 451/2003 before this Court. The
Coordinate Bench of this Court has formulated following
questions and recorded its finding as under:-
Questions for determination in FA No. 451/2003
i) Whether, due to execution of sale deed dated
02.02.1982 and 20.09.1982 tenancy stood extinguished by
merger as postulated under Section 111 (d) of TP Act or in
other words purchaser of part of property Inder Kumar
Jain and other defendants who have not purchased
property continue to be the tenant and bound to comply
with the requirements of Rent Controlling Act and are
liable to be evicted on the grounds contemplated under
the MP Accommodation Control Act?
ii) Whether, even by filing suit for partition the plaintiffs can
recover possession of entire property from defendants No.
1, 2 and 3, particularly when only part of tenanted
premises has been purchased by Inder Kumar Jain, or the
remedy is to recover the possession on the ground under
Section 12 (1) of the MP Accommodation Control Act?
iii) Whether, the present suit can be said to be based on
fresh cause of action and genuine requirement of plaintiff
under Section 12(1)(f) of MP Accommodation Control Act
and considering the relief for declaration that sale deeds
are null and void whether the decisions in previous civil
suit of which S.A. No. 813/1995 areose and the decision in
CR No. 1676/2001 (Hameeda Begum v. Champabai Jain)
can be said to be res-judicata and binding inter se parties,
moreso in view of decision in Pramod Kumar Jaiswal and
others v. Bibi Husn Bano (Supra) on question of law?
iv) Whether, the sale deeds dated 02.021982 and
20.09.1982 can be declared null and void due to failure of
Inder Kumar Jain to sue for partition and separate
possession within 12 years of purchasing the property by
applying Article 65 of Limitation Act?
v) In case defendant Inder Kumar is not tenant and in case
of co-owner whether he can retain the possession of the
entire house whereas he had purchased smaller portion
vide registered sale deeds dated 02.02.1982 and
20.09.1982 from one of the co-owner?
Findings
The Court gave the finding that "in Inder Kumar Jain, the
interest of lessee in the whole of the property has not
vested, at the same time, he has purchased only part of
property. There is no merger of tenancy into co-ownership
right.......... It cannot be said that defendant No. 3 is
occupying the entire premises as co-owner, even entire
property has not been purchased, even part of the
property cannot be said to be possessed by defendant No.
3 as co-owner as there was no partition. ............However,
where the transferee of a share of dwelling house
belonging to an undivided family is not a member of the
family, nothing in this section shall be deemed to entitle
him to joint possession or other common or part
enjoyment of the house. As Inder Kumar Jain Is not a
member of the plaintiffs' family, he has no right by virtue of
Section 44 to claim to be in joint possession or other
common or party enjoyment of the dwelling
house...............In the instant case, one of three legal heirs
of the tenant only one had purchased part of the property
not all the co-tenants, tenancy continues and there is a
need as on date of filing of suit which has been found,
thus, eviction can be made from the entire property as
tenancy continues."
Finding on question No. 2
The Court has arrived at finding that the status of Inder
Kumar Jain, also continues to be a tenant and he cannot
be said to be in possession as co-owner, he is in
possession with other legal heirs of the tenant,
consequently when status continues as tenant, obviously
the recourse has to be for eviction under M.P
Accommodation Control Act.
Finding on question No. 3.
The Court opined that in the instant case there is a fresh
cause of action with respect to necessity of plaintiff No. 2
and law of land is available in the shape of decision of
Apex Court in Pramod Kumar Jaiswal and Others (supra)
taking into the consideration the intendment of Section
111 (d) of T.P. Act. Earlier decision rendered by this Court
where not on the question of law of merger of tenancy into
co-ownership and Section 111 (d) of T.P. Act were not
considered. The present suit is based on question of title
and fresh cause of action under Section 12(1)(f) of the Act,
therefore, previous decision cannot be said to operate as
res judicata.
Finding on question No. 4.
The Court held that the defendant are enjoying premises
as tenant they are in possession of suit house, therefore, it
cannot be said that plaintiff have perfected the title by
adverse possession. It cannot be said that, sale deed
have become void for the reasons that there is failure to
sue within a period of 12 years on the strength of sale
deed.
Finding on question No. 5.
1. The Court relying upon the decision in Ram Dayal v.
Manaklal MANU/MP/0051/1973 : 1973 MPLJ 650 held that
a co-owner cannot retain the possession on the portion of
the property in excess of the share purchased by him.
2. After considering the case on above point the
Coordinate Bench of this Court has allowed the appeal
and passed the decree of eviction in favour of plaintiff on
the ground of 12(1)(f) of the Act."
29. Against the order dated 25.02.2001 in Civil Revision
No. 1676/2001, the plaintiff Hamida Begum filed a Civil
Appeal No. 1180/2006 before Supreme Court. The
defendant had also filed Civil Appeal No. 5312/2010 in
Supreme Court against the order dated 27.02.2009
passed by High Court in First Appeal No. 451/2003.
Hon'ble Apex Court decided both the Civil Appeals No.
1180/2006 and C.A. No. 5312/2010 by common order
dated 13.07.2010 by recording following findings:-
"Learned counsel for the respondents herein relied on the
judgment of this Court in Pramod Kumar Jaiswal & Others
v. Bib Husn Bano & Others MANU/SC/0346/2005 : (2005)
5 SCC 492 and urged that the tenancy will not be
extinguished on purchase of a share of a co-owner. In our
opinion, there is a difference between the doctrine of
precedent and doctrine of res judicata. So far as res
judicata is concerned, this principle applies when the
earlier judgment was inter partes. The judgment inter
partes is binding on the parties even if it is a wrong
judgment. On the other hand the doctrine of precedent is
totally different. That doctrine states that a judgment of a
higher Court or larger bench or a coordinate bench is
binding, and that judgment is binding even if it is not inter
parties. The judgment in Pramod Kumar Jaiswal's case
(supra) would have applied if the judgment in the first suit
(Suit No. 147-A/1988) was not inter partes. Since, it was
inter partes, the principle of res judicata or constructive res
judicata will apply and not the principle of precedents.
Even assuming that the judgment in the first suit was
erroneous, yet it is binding on the parties since it was inter
partes. Even if a point was not raised in the first suit, the
doctrine of constructive res judicata bars any subsequent
suit."
Thus, Hon'ble Apex Court allowed the appeal of
defendants and set aside the decree of eviction passed
against them in First Appeal No. 451/2003 and also
dismissed the appeal of Hamida Begum and up held the
order passed by this Court in Civil Revision No.
1676/2001. Thus, the controversy is finally resolved by
Hon'ble Apex Court.
30. Now in light of above previous litigations between the
parties, we will consider whether the decisions of Civil Suit
No. 147-A/1998 and Second Appeal No. 813/1995 shall
operate as res-judicata in instant suit? The present suit is
filed seeking relief of declaration that the defendants are
tenants/co-tenants in the suit house and a decree for
eviction of them on the ground of Section 12(1)(f) of the
Act, and also for recovery of mesne profit. In present suit
No. 3-A/2010 and earlier Civil Suit No. 147-A/1998 the
parties are same, suit property is same and in both the
suits the defendant Inder Kumar Jain is in possession,
claiming himself as a co-owner by virtue of sale deed
executed in his favour by one of the co-owner/landlord
Smt. Sona Bi. In both the suits the substantial question
regarding status of Inder Kumar Jain as co-owner, his right
to remain in possession of house and maintainability of the
suit by a co-owner against another co-owner are involved.
Thus, it is clear that the present suit involves the matter
directly and substantially in issue, which was in issue
directly and substantially in former suit.
31. It is argued by Shri Hafizulla that the earlier suit was
filed under Section 12(1) of Accommodation Control Act
relating to dispute between landlord and tenant where the
question of title was collaterally and incidentally in issue.
In tenancy suit, question of title cannot be adjudicated by
the Court exercised in jurisdiction under Rent Control Act
for eviction of tenant.
32. This argument cannot be accepted. Although the
earlier suit was filed for eviction of the tenant under
Section 12(1) of Accommodation Control Act, but when
Inder Kumar Jain claimed right in the property on the basis
of sale deed executed in his favour by one of
co-landlord/co-owner, the question of title was raised and
involved directly and substantially for adjudication, which
the trial Court was competent to decide.
33. In third round of litigation as described earlier in para
28, the Civil Suit No. 11-A/2002 had been filed by the
plaintiffs against the defendants for declaration of sale
deed dated 20.09.1982 executed in favour of Inder Kumar
Jain by one of co-owner Smt. Sona Bi as "null and void"
and for eviction of defendants on the ground of bonafide
need u/s. Section 12(1) (f) of M.P. Accommodation Control
Act. In this civil suit also the defendant Inder Kumar Jain
had raised the same defence as in instant suit. Thus in
this suit, the question of title of Inder Kumar Jain by virtue
of the sale deeds, right to remain in possession of suit
property and maintainability of suit for eviction under
Section 12(1)(f) of the Act, were raised for adjudication.
This suit was filed by the plaintiff on the basis of title. The
grounds for eviction in both suits (C.S. No. 11-A/2002 and
C.S. No. 3-A/2010) are also same. Most of the grounds,
which have been raised during argument by Shri Hafizulla
in the instant suit, were also raised in the earlier suit,
which were considered by the Co-ordinate Bench of this
Court in deciding the First Appeal No. 451/2003. Against
the judgment dated 27.02.2009 of First Appeal, Hon'ble
Apex Court in Civil Appeal No. 5312/2010, vide order
dated 13.07.2010 has categorically held that the judgment
passed in Civil Suit No. 147-A/1998 shall operate as res
judicata and thereby disallowing all the grounds raised by
the plaintiff in his support, allowed the appeal of defendant
and dismissed the decree passed in favour of plaintiffs.
Therefore, when the decision passed in earlier Civil Suit
No. 147-A/1998 operates as res-judicata in Civil Suit No.
11-A/2002, then same decision shall also have the effect
of res-judicata in present litigation because similar
questions are involved and parties are making claim under
same rights.
34. Hon'ble Apex Court Ramadhar v. Bhagwandas
MANU/SC/1635/2005 : (2005) 13 SCC 1 observed that:
"the expression 'matter in issue' under Section 11 of the
Code of Civil Procedure, 1908 connotes the matter directly
and substantially in issue actually or constructively. A
matter is actually in issue when it is an issue directly and
substantially and a competent court decides it on merits. A
matter is constructively in issue when it 'might and ought'
to have been made a ground of defence or attack in the
former suit. Explanation IV to section 11 of the Code by a
deeming provision lays down that any matter which 'might
and ought' to have been made a ground of defence or
attack in the former suit, but which has not been made a
ground of defence or attack, shall be deemed to have
been a matter directly and substantially in issue in such
suit.
The principle underlying Explanation IV is that where the
parties have had an opportunity of controverting a matter,
that should be taken to be the same thing as if the matter
had been actually controverted and decided. The object of
Explanation IV is to compel the plaintiff or the defendant to
take all the grounds of attack or defence in one and the
same suit"........(Para No. 21 and 22)
Therefore, all the grounds which have been raised in
instant appeal by the plaintiff/appellant deemed to have
been considered and decided against him by Hon'ble
Apex Court in C.A.5312/2010. The principle of
constructive res judicata will be applicable in instant case.
35. Hon'ble Calcutta High Court in Indu Bhusan Jana v.
Union of India, AIR 2000 Calcutta 24 observed that "upon
an order attains finality, it matters little as to whether it was
erroneous. A party aggrieved by an order has to work out
his remedies within the legal frame work. If an issue or the
entire lis is concluded upon a finding being rendered and
such finding remains unchallenged if it no longer open to
the party to undo the effect thereof at any subsequent
stage or collaterally unless it is demonstrated that the
finding was obtained by fraud or the Court lacked
jurisdiction to pass the order. The hierarchy in the judiciary
exist to afford litigant to climb up the ladder in pursuit of
justice and to right a wrong committed at lower level. But if
a litigant accepts an order, he does to his prejudice and
binds himself thereby."...........(Para 11)
36. Hon'ble Apex Court in M. Nagbhushana v. State of
Karnataka, MANU/SC/0088/2011 : AIR 2011 SC 1113 has
held that "res judicata is not technical doctrine, but a
fundamental principle which sustain rule of law in ensuring
finality in litigations. Its principle seeks to promote honesty
and fair administration of Justice and to prevent abuse in
the matter of accessing Court for agitating on issues which
have become final between the parties."
37. Thus, following the above verdict and decision of
Hon'ble Apex Court in CA No. 5312/2010, which is binding
upon this Court, we hold that the judgment in Civil Suit No.
147-A/1998 have effect of res judicata in the instant suit
also. In view of above decision it can also be concluded
that not only the judgment passed in Second Appeal No.
813/1995, but also the judgments in Civil Revision No.
1676/2001 and Civil Suit No. 11-A/2002 are also having
effect of res judicata in the instant suit.
38. Therefore, in the instant case the trial Court has rightly
come to the conclusion that the judgment in Civil Suit No.
147-A/1998 and Second Appeal No. 813/1995 shall
operate as res judicata in the instant suit and the findings
that the defendant Inder Kumar Jain has purchased the
undivided share of Smt. Sona Begum by sale deed dated
20.09.1982 and became the co-owner of the property. His
share qua co-owner has not been specified, therefore, he
has legal right to retain possession of suit house till
partition. He cannot be evicted by other co-owner without
getting property partitioned.
39. Now we will consider the claim of Mesne Profit as
raised by the plaintiff/appellant. Section 2(12) of Civil
Procedure Code, defines the Mesne Profits as under:-
"Mesne Profits" of property means those profits which the
person in wrongful possession of such property actually
received or might with ordinary diligence have received
therefrom, together with interest on such profits, but shall
not include profits due to improvements made by the
person in wrongful possession.
Therefore, to claim mesne profit it is necessary to prove
that the person against whom the claim is made must be
in the wrongful possession of such property and he has
received profits therefrom.
40. Shri Hafizulla has submitted that in the sale deed
dated 20.09.1982, there was a condition that the
purchaser Inder Kumar Jain shall file a suit for partition of
the share of Smt. Sona Bi in disputed house. Since no suit
for partition was filed by Inder Kumar Jain within 12 years
of sale deed, therefore, his right on the property gets
extinguished, as per Section 27 and Article 65 of the
Limitation Act and his possession becomes unauthorized
and unlawful. He has also relied upon decision of Apex
Court in M.V.S. Manikayala Rao v. M. Narasimhaswani
and Others AIR 1966 SC 471. wherein it is observed by
the Apex Court that "it is clear that in the absence of a
clear acknowledgement of the right of the alienee or
participation in the enjoyment of the family property by the
alienee, the possession of non-alienating coparceners
would be adverse to the alienee, from the date of on which
he became entitled to sue for general partition and
possession of his alienor's share". It is further contended
by Shri Hafizulla, that the original lease was granted for
the ten years. After expiry of this period the possession of
the defendant becomes illegal and unauthorized. Inder
Kumar Jain has purchased only a small share of property
from Smt. Sona Bi, therefore, his possession on entire
property cannot be treated as valid possession. He has
relied upon case law Wuntakal Yalpi Chenabasavana
Gowd v. Rao Bahadur Y. Mahabaleshwarappa and
another, MANU/SC/0117/1954 : AIR 1954 SC 337 (Vol.
41, C.N 31).
41. Shri Hafizulla further argued that the defendants
possession on the suit property is illegal and adverse to
plaintiffs, therefore, they are entitled to pay mesne profit at
the present rate of rent. Shri Hafizulla has relied on
various case laws Amar Singh v. Chandra Shekhar Rao,
MANU/MP/0001/1984 : AIR 1984 M.P 1 (F.B). Jagat
Narayan Singh v. Rabinder Mohan Bhandari and Others,
MANU/WB/0030/1992 : AIR 1992 Calcutta 216. Vinod
Khanna and Others v. Bakshi Sachdev (Deceased)
through L.R.s and Others, MANU/DE/0933/1995 : AIR
1996 Delhi 32. State of Maharashtra and another v. M/s.
Super Max International Pvt. Ltd. and Others,
MANU/SC/1547/2009 : AIR 2010 SC 722 and Atma Ram
Properties (P) Ltd. v. Federal Motors (P) Ltd.,
MANU/SC/1047/2004 : (2005) 1 SCC 705.
42. Shri Hafizulla further submitted that in W.S. the
defendants have not specifically denied the averments of
plaint made in respect of mesne profit, therefore, the
pleadings in this regard shall be treated as admitted by the
defendants and a decree for mesne profit can be passed
in favour of plaintiff. He relied on case law Sushil Kumar v.
Rakesh Kumar, MANU/SC/0826/2003 : AIR 2004 SC 230.
43. To decide this issue we have to consider as to nature
of possession of the defendants including Inder Kumar
Jain in suit house. If their possession is found as
unauthorized or unlawful then only they will be liable to
pay mesne profit. First we will consider whether by not
filing suit for partition, the right of Inder Kumar Jain gets
extinguished in suit house? The relevant Section 27 of
Limitation Act provides for extinguishment of rights which
reads as under:-
"At the determination of the period hereby limited to any
person for instituting a suit for possession of any property,
his right to such property shall be extinguished."
44. The general principle is that limitation bars the remedy
and does not extinguish the right itself. This Section is an
exception to this general principle so far as suits for
possession of property are concerned, and provide that,
the bar of the remedy shall operate to extinguish the right.
This Section in terms, apply only where suits for
possession of property become barred by limitation. The
suit for possession referred in the Section is the suit in
respect of which the period of limitation is prescribed by
the schedule of Limitation Act.
45. The Article 65 of Limitation Act provides for the period
of limitation for filing the suit for recovery of possession.
The period of limitation for filing a suit for recovery of
possession of immovable property or any interest therein
based on title is, twelve years when the possession of
defendant become adverse to the plaintiff.
46. A person who takes a transfer from a co-tenant or co-
owner steps into the shoes of his transferor. He becomes
as much as a co-tenant or a co-owner as is transferor
was, before the transfer. It follows that the possession of
the alienee in such cases is not adverse to the other co-
owner unless it could be shown that there has been an
ouster. In the case of adverse possession as against the
co-owner it must be proved that other co-owner has
ousted him openly denying his title and to the knowledge
of the other co-owner.
Thus to extinguish the right of defendant Inder Kumar in
the suit property, it is necessary to prove that he has been
ousted or dispossessed from the suit house for more than
12 years. The period of limitation shall start from the date
of his dispossession.
47. Hon. Supreme Court in Wuntakal Yalpi
Chenabasavana Gowd v. Rao Bahadur Y.
Mahabaleshwarappa and another, MANU/SC/0117/1954 :
AIR 1954 SC 337 (Vol. 41, C.N 31) held as under:-
"Once it is held that the possession of a co-sharer become
adverse to the other co-sharer as a result of ouster, the
mere assertion of his joint title by the dispossessed co-
sharer will not interrupt the running of adverse possession.
He must actually and effectively break up the exclusive
possession of his co-sharer by re-entry upon the property
or by resuming possession in such manner as it is
possible to do. A mere mental act on the part of the
person dispossessed unaccompanied by any change of
possession cannot affect the continuity of adverse
possession of the deseizor. It may also check the running
of time if the co-sharer who is in exclusive possession
acknowledges the title of his co-owner or discontinues his
exclusive possession of the property."
48. Therefore, it is for the co-owner who has been ousted
from the property, has to bring a suit for possession or
seek reentry upon the property to interrupt the running of
adverse possession, otherwise his right gets extinguished
under Section 27 read with Article 65 of the Limitation Act.
In present case Inder Kumar Jain is in possession of
house as co-owner. The findings of earlier suit in this
regard are binding as res-judicata in present suit. Since he
is in possession of the property in other words as he is not
ousted from it, his right does not get affected on the
ground of adverse possession. Secondly, in sale deed
executed by Sona Bi in favour of Inder Kumar Jain the
stipulation for purchaser to seek the partition of share
purchased, will not be binding on Inder Kumar Jain. When
Sona Bi had sold away her share in suit house then she
had no right to impose any further condition on purchaser
for claiming partition of share purchased. It is for
purchaser to decide when to claim partition or file suit for
partition. Thus on this ground also the right of Inder Kumar
Jain on suit house does not get extinguished, he is
enjoying the premises as co-owner.
49. Moreover, the plaintiffs objection regarding adverse
possession had been considered by co-ordinate Bench of
this Court in third round of litigation in deciding the First
Appeal No. 451/2001 and while answering the question for
determination No. 4, came to conclusion that
"defendants are enjoying premises as tenant, they are in
possession of suit house, therefore, it cannot be said that
plaintiffs have perfected the title by adverse possession. It
cannot be said that, sale deed has become void for the
reasons that there is failure to suit within a period of 12
years on the strength of sale deed."
Thus, the objection had been rejected by the Division
Bench of this Court in above appeal. In Second Appeal
No. 813/1995 also the Court has given finding that the
possession of defendant Inder Kumar Jain in suit house is
lawful and he is entitled to retain the possession till suit for
partition and possession is filed by the plaintiffs. He cannot
be evicted by other co-owner i.e. plaintiffs without getting
property partitioned. Therefore, on this ground also the
plea of adverse possession of plaintiffs cannot be
accepted.
50. It is argued by Shri Hafizulla that the suit house is a
dwelling house which belongs to undivided family of the
plaintiff. He is not the member of family of plaintiff, but a
stranger, therefore, he cannot enter into joint possession
with members of undivided family. Inviting the attention of
this Court towards provision of Section 44 of Transfer of
Property Act., and Section 4 of the Partition Act. Shri
Hafizulla argued that, Inder Kumar Jain has no right to
remain in possession of suit house and if he has wrongly
been given the possession of house then he is liable to be
evicted and mandatory injunction to evict him can be
granted. Simply giving house on rent does not change its
nature as dwelling house, he relied upon case laws, Dorab
Cawasji Warden v. Coomi Sorab Warden,
MANU/SC/0161/1990 : AIR 1990 SC 867, Bhuban Mohan
Guha and another v. Brojendra Chandra Ghose and
Others, MANU/WB/0210/1940 : (28) AIR 1941 Calcutta
311, Dulal Chandra Chatterjee v. Gosthabehari Mitra,
MANU/WB/0094/1953 : AIR 1953 Calcutta 259 (Vol.40
C.N.94), Ashim Ranjan Das v. Sm. Bimla Ghosh and
Others, MANU/WB/0003/1992 : AIR 1992 Calcutta 44.
Shivaji and another v. Hiralal and Others,
MANU/MP/0036/1984 : 1985 MPLJ 10, Ramdayal v.
Manaklal, MANU/MP/0051/1973 : AIR 1973 Madhya
Pradesh 222 (V 60 C 51) F.B. Alka Gupta v. Narender
Kumar Gupta, MANU/SC/0793/2010 : AIR 2011 SC 9,
Vibhar Murthy v. Sushila Bai MANU/SC/0463/1996 :
(1996) 3 SCC 644 and Narashimaha Murthy v.
Susheelabai (Smt.) MANU/SC/0463/1996 : (1996) 3 SCC
644.
These are the new grounds raised in argument by
appellant, although it may be deemed to be considered
under constructive res judicata, but we think it proper to
consider the case of plaintiff in this angel also.
51. Section 4 of Partition Act provides that, where a share
of a dwelling house belonging to an undivided family has
been transferred to a person who is not a member of such
family and such transferee sues for partition, the Court
shall, if any member of the family, being a shareholder
shall undertake to buy the share of such transferee make
a valuation of such share in such manner as it thinks fit
and direct the sale of such share to such share holder.
This Section gives the right of pre-emption to the co-
owners to purchase the transferred share of the stranger
transferee.
52. Section 44 of Transfer of Property Act, provides that
the transferee of share of dwelling house, if he/she is not a
member of that family, gets no right to joint possession or
common enjoyment of the house. In case law Gautam
Paul v. Debi Rani Paul and Others, MANU/SC/0642/2000 :
AIR 2001 SC 61, it is observed that where a stranger
purchases the share in a dwelling house of undivided
family from one of co-owner then he gets no right to joint
possession of house. The only manner in which an
outsider can get possession, is to sue for possession and
claim separation of his share.
53. Thus, for application of Section 4 of Partition Act and
Section 44 of Transfer of Property Act, it is necessary to
prove that the disputed house is dwelling house of
undivided family of plaintiff, since the defendant has
specifically denied this fact in written statement. The
burden to prove this fact lies upon plaintiff. Hon'ble Apex
Court in case law Dorab Cawasji Warden v. Coomi Sorab
Warden, MANU/SC/0161/1990 : AIR 1990 SC 867 while
considering section 44 of Transfer of Property Act and
Section 4 of Partition Act observed that, Section 44 of T.P.
Act and Section 4 of Partition Act are complementary to
each other. Terms 'undivided family' and 'dwelling house'
have the same meaning in both the Sections.
54. The expression "Dwelling House" is not defined in the
Act. As per dictionary the dwelling house is:-
"Merriam Webster- A house or sometimes part of a house
that is occupied as a residence in distinction from a store,
office, or other building and that may legally include
associated or connected buildings within same curtilage."
55. There are certain case laws with reference to Section
4 of Partition Act and Section 44 of Transfer of Property
Act as given under:-
"In Maniklal Singh v. Gauri Shanker Shah AIR 1958
Calcutta 245, it is held that:- In determining whether a
house is a dwelling house under Section 4 it has to be
first found out whether the house in question was
used by members of family for residential purpose. If
in fact a house is used for residential purposes by
members of the family then it can be decisively
termed as a dwelling house. A dwelling house may be
tenanted in certain circumstances. The test which is
essential is that the house must have been meant for
residential purposes though temporarily it might be
used for other purposes according to exigency of
circumstances."
56. Bikal Swain v. Iswar Swain, MANU/OR/0051/1959 :
AIR 1959 Orissa 173, it is held that:- It is incumbent upon
plaintiff to plead that there was in existence an undivided
dwelling house and he must prove that a share thereof
was transferred to defendant before he can claim privilege
under Section 4. Where the finding of Court was that there
was no dwelling house belonging to undivided family in
existence on date of transfer plaintiff is not entitled to
benefit of Section 4.
57. Tejpal Khandewlal and Others v. Mst. Purnima Bai and
Others, MANU/OR/0016/1976 : AIR 1976 Orissa 62
(DB), it is held that where, however, a house is used or
is intended to be used not for residential purpose but
for letting out business, industrial or other purpose, it
is not a dwelling house. Take for instance, certain
houses are constructed by the members of the family
for being used as shop-room or for being tenanted to
others. Those houses are not dwelling house even
though one can dwell therein comfortably.
58. Janki Ammal and Others v. PAK Natrajan and Others,
MANU/TN/0211/1989 : AIR 1989 Madras 99, it is held that
Partition Act. Section 4 and Transfer of Property Act
Section 44(2). Dwelling house belonging to undivided
family house which is completely tenanted to tenants
cannot be said to be a dwelling house within the
meaning of Section 44(2) of Transfer of Property Act.
59. It is not disputed that the suit house was given on rent
to Sheikhar Chand Jain in the year 1968. In first round of
litigation a Civil Suit No. 147-A/1998, it is found proved
that the suit house was let out for business purposes,
where defendants were running an electrical shop. It is
also found proved that this house is required for legal
profession of plaintiff Hafizulla under Section 12(1)(f) of
M.P. Accommodation Control Act. In subsequent Civil Suit
No. 11-A/2002 and RCA case No. 2-A/90(7)97-98, it is
pleaded by plaintiff that suit house was let out for business
purposes and it is bonafidely required for business/office
of advocate. In the present suit plaintiff Hafizulla (PW-1)
and his son M. Shafiqulla (PW-2) in evidence have not
stated that the suit house is a dwelling house, used for
residential purposes. Thus, from pleading and evidence
of the parties, it is established that the suit house is
being used for business purposes since, 1968 and still
the plaintiff wants to use it for his profession of
Advocacy. The house is not being used for residential
purpose since more than 45 years and in future the
plaintiff is not intending to use it as residence. It was
completely let out to tenant and considering the long
period of tenancy, it cannot be said that it had been
given on rent temporarily. Therefore, it cannot be said
that the disputed house is a dwelling house within the
meaning of Section 4 of Partition Act and Section 44
of Transfer of Property Act. Hence, the provisions of
above acts are not applicable in respect of disputed
house. Therefore, the case law relied upon by plaintiff are
not applicable in facts of present case because mainly
they relates to dwelling house.
60. As far as, nature of possession of other defendants
except Inder Kumar Jain is concerned, they have inherited
the tenancy after the death of original tenant Sheikhar
Chand Jain. In earlier Civil Suit 147-A/1998 and Second
Appeal No. 813/1995, it is found that, the suit for eviction
at the instance of plaintiffs was not maintainable as portion
of undivided house had been purchased by Inder Kumar
Jain, and have become co-owner of the property. Relying
upon the case law Sk. Sattar Sk. Mohd. Choudhary v.
Gundappa Amabadas Bukate, reported in
MANU/SC/0225/1997 : (1996) 6 SCC 373, wherein it is
held that:-
"A co-sharer cannot initiate action for eviction of the tenant
from the portion of the tenanted accommodation nor can
he sue for his part of the rent. The tenancy cannot be split
up either in estate or in rent or any other obligation by
unilateral act of one of the co-owners. If, however, all the
co-owners or the co-lessors agree among themselves and
split by partition the demised property by metes and
bounds and come to have definite, positive and identifiable
shares in that property, they become separate individual
owners of each severed portion and can deal with that
portion as also the tenant thereof as individual
owner/lessor."
61. The Second Appeal No. 813/1995 was dismissed. It
was decided in earlier litigation that plaintiffs alone cannot
unilaterally file a suit for eviction against the defendants,
without the consent of other co-owner and the suit is not
maintainable. Therefore, without seeking partition the
plaintiff suit for eviction of the defendants/tenants is not
maintainable. Since, tenancy cannot be terminated
unilaterally by some of the co-owners/landlords
without consent of other co-owner/landlord, therefore,
the possession of tenant in suit house cannot be
considered as unlawful or unauthorized. Thus, they are
not liable to pay mesne profit. Alternatively it can be
inferred that, the other tenants/defendants are occupying
the property in joint possession with co-owner Inder
Kumar Jain, therefore, on this ground also their
possession cannot be termed as unauthorized.
62. Consequently, in the light of above discussions, the
possession of defendants in the suit house is neither
illegal nor unauthorized. Therefore, they are not liable to
pay any mesne profit to plaintiffs.
63. Thus, learned trial Court has not committed any
illegality in dismissing the suit. There is no illegality or
substantial error found in the findings of trial Court.
Resultantly, this appeal is hereby dismissed. The
appellants shall bear the cost of respondents.

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