C.R. No. 7819 of 2010 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No. 7819 of 2010 (O&M) Date of Decision: 06.12.2010 Ram Murti Sharma and another .... Petitioners Versus Prem Kumar and others ... Respondents CORAM: HON'BLE MR. JUSTICE ALOK SINGH Present : Mr. C.B. Goel, Advocate with Ms. Promila Nain, Advocate for the petitioners Mr. Amar Vivek, Advocate for the respondents 1. Whether Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to the Reporters or not? Yes 3. Whether the judgment should be reported in the Digest? Yes ALOK SINGH, J. (ORAL) With the consent of learned counsel appearing for the parties, present petition is being taken up for final hearing/disposal. The sole question involved in the present petition is - As to whether respondents No. 2 to 4 claiming themselves to be tenant of property in dispute on behalf of other co-owners can resist a decree for eviction/possession obtained by the petitioners against Prem Kumar – tenant/respondent No. 1? As per learned counsel for respondents No. 2 to 4, earlier property was let out to Prem Kumar by Ram Murti Sharma. It is also admitted that Ram Murti Sharma has filed eviction petition against the tenant–Prem Kumar on 7.9.2006. According to respondents No. 2 to C.R. No. 7819 of 2010 (O&M) 2 4, during the pendency of the eviction petition No. 281 of 7.9.2006 before the Rent Controller, Chandigarh respondents No. 2 to 4 have entered into possession of the property in dispute as tenant pursuant to the lease deed dated 7.4.2008 executed by other co-owner i.e. Jagdish Arora. Learned counsel for respondents No. 2 to 4 further submitted that Prem Kumar, the sitting tenant has also signed the lease deed dated 7.4.2008 as a witness and he has handed over possession to one of the co-owner Jagidsh Arora and Jagdish Arora in turn has handed over possession to respondents No. 2 to 4 as tenant on 7.4.2008. It is further contended that co-owners have sold the property in question to the husbands of respondents No. R-2 to R-4 on next day i.e. on 8.4.2008. In the opinion of this Court, there is a difference between landlord and owner. In view of the admitted fact that Ram Murti Sharma has let out the property to Prem Kumar, hence, Ram Murti Sharma is the landlord qua Prem Kumar. This Court is of the further opinion that tenant can hand over possession ordinarily to the landlord only; Prem Kumar had absolutely no right to hand over the possession allegedly to Jagdish Arora, the another co-owner of the property in dispute during the pendency of the eviction petition filed by Ram Murti Sharma – landlord. As per respondents No. 2 to 4, they took the possession of the property as tenant on 7.4.2008 i.e. the date of alleged lease deed executed by alleged co-owners in favour of respondents No. 2 to 4. On the very next day i.e. 8.4.2008 alleged co-owners allegedly sold the property in question in favour of the husbands of respondents No. 2 to 4. Hon'ble Apex Court in the matter of Ramdas vs. Sitabai and C.R. No. 7819 of 2010 (O&M) 3 others, reported in 2009(7) SCC 444 has held as under:- “15. Without there being any physical formal partition of an undivided landed property, a co-sharer cannot put a vendee in possession although such a co-sharer may have a right to transfer his undivided share. Reliance in this regard may be placed to a decision of this Court in M.V.S. Manikayala Rao Vs. M. Narasimhaswami & Ors. [AIR 1966 SC 470], wherein this Court stated as follows: "Now, it is well settled that the purchaser of a co- parcener's undivided interest in the joint family property is not entitled to possession of what he had purchased. His only right is to sue for partition of the property and ask for allotment to him of that which, on partition, might be found to fall to the share of the coparcener whose share he had purchased." 16. It may be mentioned herein that the aforesaid findings and the conclusions were recorded by the Supreme Court by placing reliance upon an earlier judgment of this Court in Sidheshwar Mukherjee Vs. Bhubneshwar Prasad Narain Singh & Ors. [AIR 1953 SC 487], wherein this Court held as under:- "All that (vendee) purchased at the execution sale, was the undivided interest of co-parcener in the joint property. He did not acquire title to any defined share in the property and was not entitled to joint possession from the date of his purchase. He could C.R. No. 7819 of 2010 (O&M) 4 work-out his rights only by a suit for partition and his right to possession would date from the period when a specific allotment was made in his favour (Emphasis added) 17. In view of the aforesaid position there could be no dispute with regard to the fact that an undivided share of co-sharer may be a subject matter of sale, but possession cannot be handed over to the vendee unless the property is partitioned by metes and bounds amicably and through mutual settlement or by a decree of the Court.” From the above dictum of the Apex Court in the matter of Ramdas (supra), I am of the view that co-sharer can transfer his undivided share but no possession can be handed over to the vendee unless the property is partitioned by metes and bounds amicably or through mutual settlement or by a decree of the court. Vendee from the co-owner shall be entitled for possession through the partition only. It seems respondents No. 2 to 4 and their husbands subsequent purchasers from the alleged co-owners and other co- owners conspired with sitting tenant Prem Kumar and to deprive the landlord-petitioner from the property in dispute have taken the case that Prem Kumar has handed over possession on 7.4.2008 and respondents No. 2 to 4 came into the possession of the property as tenant pursuant to the sale deed dated 7.4.2008 allegedly executed by other co-owners and thereafter property was transferred by the C.R. No. 7819 of 2010 (O&M) 5 other co-owners in favour of husbands of respondents No. 2 to 4. In the opinion of this Court, if purchaser from the co-owners can take possession only by way of partition, hence, alleged transfer of the possession in favour of respondents No. 2 to 4 wives of alleged purchasers can not be recognised as legal possession. Admittedly respondents No. 2 to 4 are claiming themselves coming into the possession of the property in dispute during the pendency of the eviction petition filed by landlord – Ram Murti against the sitting tenant Prem Kumar. Perusal of the lease deed dated 7.4.2008 reveals that Prem Kumar sitting tenant against whom eviction petition was pending has signed the lease deed. It seems that Prem Kumar has conspired with respondents No. R-2 to R-4 and alleged co-owner Jagdish Arora to deprive the landlord Ram Murti Sharma from getting the possession through the eviction proceedings pending on that date. Any person taking possession of the property in collusion with the sitting tenant is not entitled to resist the execution of the eviction order. In the opinion of this Court, respondents No. R-2 to R-4 can not resist the execution of the decree merely because they have come in the possession of property during the pendency of the eviction proceedings. Petition is allowed. Impugned order is set aside. Executing Court is directed to proceed with the execution forthwith. (ALOK SINGH) 06.12.2010 JUDGE reena