Appeal No 193 of 1964
Appeal from the judgment and decree dated May 13 1960 of the Patna High Court in Appeal from Original Decree No 132 of 1955 and order dated February 15 1962 in M J C No 2 of 196 1
Sarjoo Prasad section C Sinha and B P Jha for the appellants
section T Desai and R C Prasad for the respondents
The Judgment of the Court was delivered by Mudholkar J
This is an appeal by certificate from a judg ment of the Patna High Court reversing that of the trial court dismissing the plaintiffs  suit for partition and separate possession of their half share in a house and for payment of compensation from May 2 1947 to September 11 1951 at the rate of Rs 200pm with interest and for payment of compensation at the same rate from the date of suit till the recovery of possession of their share in the house
The facts which are not disputed before us are these The property in dispute which is situate within the limits of the municipality of Bhagalpur was purchased jointly by five persons Juri Mal Gajanand Ramasahai Sah Jahuri Sah and Ramgali Sah
The first two of these are father and son and were members of a joint Hindu family
Both of them are dead
Plaintiffs 1 to 4 are the sons and plaintiff 6 is the widow of Gajanand and plaintiff No 5 is the widow of Jurimal
Jurimal Gajanand constituted a joint Hindu family and plaintiffs 1 to 4 constituted a joint Hindu family
Ramsahai Jahauri Sah and Ramgali were brothers and were members of a joint Hindu family
Jahuri Sah is defendant No and Ramgali Sah is defendant No 2
They along with the remaining defendants are members of a joint Hindu family of which Jahauri Sah is the karta
The property in question was purchased by the two joint families each family having half interest therein
The date of the transaction was June 26 1942
At the time of the purchase of the property it was in the possession of Mohanlal Marwari as a tenant
He was evicted therefrom by a decree of the court and hereafter it was let out to Government the compensation having been settled at Rs 100 per mensem
The Government vacated he house after some time whereafter the defendants occupied the 120a 282 house excepting a portion thereof which was in the occupation of Isri Sah and Shib Charan Sah as tenants paying a monthly rent of Rs 30 Half of this rent was being realised by each family
According to the plaintiffs when the defendants entered into possession of the property they agreed to pay Rs 200 per mensem as compensation to the plaintiffs  family with respect to their half share in the property
They however did not pay any compensation to the plaintiffs despite the agreement
On these allegations the plaintiffs instituted their suit
In the plaint they stated that Gajanand had another son named Shankarlal but he was given in adoption to Sreelal P W 6 and he was therefore not joined as party to the suit
The defendants denied the claim and stated that the suit was barred by the provisions of the Bihar Buildings Lease Rent and Eviction Control Act 1947 Bihar Act 3 of 1947 hereafter referred to as the Act as well  as by the rule of estopping
They also raised the plea that under the contract entered into between the two families Rs 501 pm was payable as compensation and not Rs 200 pm as alleged by the plaintiffs
According to them the suit was barred by the rule of estoppel
They contended that the claim for compensation for a period prior to the expiry of 3 years from the date of suit was barred by time
They also raised some other contentions in the written statement but it is unnecessary to refer to them inasmuch as we must confine ourselves to the points urged before us by Mr Sarjoo Prasad on their behalf
The points are 1 that the suit for partition and separate possession was not maintainable  and 2 that the contract under which the plaintiffs claimed compensation is not enforceable
The suit is said to be not maintainable because a one of the co owners of the property was not joined as a party to the suit and b also because it was barred by the Act
The contract for payment of compensation was said to be not
enforceable as there was no ouster of the plaintiffs by the defendants
The trial court held that the provisions of the Act applied and by virtue of those provisions the plaintiffs were not entitled to a decree for eviction of the defendants nor were they entitled to a decree for compensation and that the adoption of Shankarlal not having been proved the suit as constituted was not maintainable
On this point the High Court arrived at different conclu sions
The view taken by the High Court was that the provisions of the Act did not apply to this cage that the defendants not having specifically denied the fact of adoption and no issues thereon having been raised the trial court erred in holding that the adoption was not proved and that non joinder of Shankarlal was not an impediment to the institution of the suit
Further 283 according to the High Court the contract to pay compensation at the rate of Rs 200 pm was duly established and that as it was competent to a civil court to enforce the contract the suit for recovery of arrears of compensation was maintainable
The High Court accepted the defendants  contention that the claim for arrears must be limited to a period of three years prior to the institution of the suit
It allowed interest on the arrears at 6 pa and decreed the claim of the plaintiffs for partition and for arrears of compensation
The plaintiffs then moved the High Court under section 151 read with OXX r 18 Code of Civil Procedure for granting them appropriate relief with respect to their claim for compensation for use and occupation of the house from the date of suit till delivery of possession of their share after passing the final decree
The High Court allowed this application and directed that the plaintiffs shall also be entitled to compensation from the date of institution of the suit until recovery of physical possession of their share after partition or until the expiry of three years from the date of its decree whichever event first occurs
It also made an appropriate order regarding costs
Aggrieved by this decree of the High Court as amended by its subsequent order upon the plaintiffs  application under section 151 read with OXX r 18 CPC the defendants have come up to this Court
In our opinion the High Court was right in holding that the Act is inapplicable to this case
The plaintiffs and defendants were admittedly co owners of the property
As the property had not been partitioned it was open to either or both the parties to occupy it
The defendants occupied the property except a small portion which was in possession of the tenants
The plaintiffs acquiesced in it because of an agreement between the parties that the defendants would pay Rs 200 pm as compensation to them
The defendants did not dispute that there was an agreement about payment of compensation between the parties but their plea was that the amount agreed to was Rs 501 pm and not Rs 200 pm
Their contention in this behalf was rejected by the High Court which accepted the plaintiffs  contention that the amount was Rs 200 pm
This part of the High Court s judgment is not challenged before us by Mr Sarjoo Prasad
He however challenged the finding of the High Court that the claim to compensation was enforceable
But before we deal with this matter it would be appropriate to deal with the reasons given by him in support of the contention that the suit was not maintainable
He reiterated the argument urged before the trial court based upon the non joinder of Shankarlal as a party to the suit
According to him as Shankarlal s adoption his not been established by the plaintiffs he was also a co owner of the property 284 and his non joinder as a party to the suit rendered the suit incompetent
The High Court has pointed out that the plaintiffs have clearly stated in para 1 of the plaint that Shankarlal had been given in adoption to Sreelal
In neither of the two written statements filed on behalf of the defendants has this assertion of fact by the plaintiffs been specifically denied
Instead What is stated in both these written statements is that the defendants have no knowledge of the allegations made in para 1 of the plaint
Bearing in mind that OVIII r 5 CPC provides that every allegation of fact in the plaint if not denied specifically or by necessary implication or stated to be not admitted in the pleading of the defendant shall be taken to be admitted to say that a defendant has no knowledge of a fact pleaded by the plaintiff is not tantamount to a denial of the existence of that fact not even an implied denial
No specific issue on the question of adoption was therefore raised
In the circumstances the High Court was right in saying that there was no occasion for the parties to lead any envidence on the point
However Sreelal who was examined as a witness on behalf of the plaintiffs has spoken about the fact of adoption and his statement can at least be regarded as prima facie evidence of adoption
It is true that he admits the existence of a deed of adoption and of its non production in the court
This admission however would not render oral evidence inadmissible because it is not by virtue of a deed of adoption that a change of status of a person can be effected
A deed of adoption merely records the fact that an adoption had taken place and nothing more
Such a deed cannot be likened to a document which by its sheer force brings a transaction into existence
It is no more than a piece of evidence and the failure of a party to produce such a document in a suit does not render oral evidence in proof of adoption inadmissible
We therefore agree with the High Court that the plaintiffs  suit for partition of their half share in the property was not incompetent because Shankarlal was not made a party thereto
We will now deal with the other ground urged by Mr Sarjoo Prasad in support of his contention that the suit is not maintainable
Under sub section
2 of section II of the Act as it stood on the date of the suit a claim for eviction of a tenant or a claim for recovery of possession of a building and claim for rent thereof had to be made before the Rent Controller alone and consequently the jurisdiction of the civil court for the enforcement of such claims was ousted
But for the provisions of this section to apply the relationship between the plaintiff and the defendant should be that of a landlord and tenant
If they are co owners of the property and the property is held by them as tenants in common no question of relationship of landlord and tenant comes into being as between them
The common case of the parties is that they are in fact co owners of the property and the respective 285 shares of the two families have not been demarcated
They therefore continue to be tenants in common
It is true that the entire property save a small portion which was in possession of tenants is in the actual occupation of the defendants which means that they are in occupation not only of their share in the property but also of the plaintiffs  share
That fact however would not make them tenants of the plaintiffs
Under the law each tenantin common is entitled to the possession of the entire property that is to every part of it though its right to possession is limited to the extent of the share in the property
The mere fact that the defendants agreed to pay compensation to the plaintiffs for their occupation of the entire property ignoring the portion in possession of the tenants would not bring into existence a relationship of landlord and tenant
By this agreement the parties never intended to constitute a relationship of landlord and tenant between the defendants and their co owners
The provisions of the Act are therefore inapplicable
The second ground urged by Mr Sarjoo Prasad therefore fails
What we have to consider then is whether the contract for payment of compensation is not enforceable
It is no doubt true that under the law every co owner of undivided property is entitled to enjoy the whole of the property and is not liable to pay compensation to the other co owners who have not chosen to enjoy the property
It is also true that liability to pay compensation arises against a co owner who deliberately excludes the other co owners from the enjoyment of the property
It does not however follow that the liability to pay compensation arises only in such a case and no other
Co owners are legally competent to come to any kind of arrangement for the enjoyment of their un divided property and are free to lay down any terms concerning the enjoyment of the property
There is no principle of law which would exclude them from providing in the agreement that those of them as are in actual occupation and enjoyment of the property shall pay to the other co owners compensation
No authority was cited by learned counsel in support of his contention that ouster of a co owner is a sine qua non for enabling him to claim com pensation from the co owner who is in occupation and enjoy ment of common property
We therefore reject the contention
In the circumstances therefore we dismiss the appeal with costs
Appeal dismissed


Summary:
Two Hindu undivided families one of them being represented by the appellants and the other by the respondents were co owners of a house which was Purchased by them jointly
The appellants occupied a major portion of the house on an agreed compensation being payable by them to the respondents in respect of the latter s share occupied by them
On the compensation not being paid as agreed the respondents filed a suit for its recovery as well as for partition
In the plaint one S was mentioned as having been adopted out of the plaintiff family and for that reason he was not impleaded
The appellants resisted the suit on the grounds that i S had not been impleaded although a co owner ii the suit was barred by the Bihar Building Lease Rent and Eviction Control Act 1947 Bihar Act 3 of 1947 and iii the contract for payment of compensation was not enforceable as there was no ouster of the plaintiffs by the respondents
The trial court decided in favour of the appellants but the High Court held against them
They came to this Court by special leave
HELD i The suit was not incompetent because S was not made a party thereto
The fact of adoption was stated in the plaint and had not been specifically denied by the appellants in their written statements
No specific issue on the question of adoption was raised and it could not be therefore argued that S s adoption had not been established
284 A B F Oral evidence of the fact of adoption did not become inadmissible merely because the existence of a deed of adoption was admitted
A deed of adoption merely records the fact that an adoption had taken place and nothing more
Such a deed cannot be likened to a document which by its sheer force brings a transaction into existence
284 D E ii The mere fact that the defendants agreed to pay compensation to the Plaintiffs for their occupation of the plaintiff s share would not bring into existence a relationship of landlord and tenant
By this agreement the parties never intended to Constitute a relationship of landlord and tenant between the defendants and their co owners
Bihar Act 3 of 1947 was therefore inapplicable and the suit could not be said to be barred under its provisions 285 C 281 iii Co owners are legally competent to come to any kind of agreement for the enjoyment of their undivided property and are free to lay down any terms covering the enjoyment of the property
Ouster of a co owner is not a sine qua non for enabling him to claim compensation from the co owner who is in occupation and enjoyment of common property
285 E F