R.S.A. No. 172 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 172 of 2010 (O&M) Date of decision: 20.01.2010 Mohammad Ikhlaq and others ....Appellants Versus Alok Gupta and others ....Respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: Mr. Mansur Ali, Advocate, for the appellants. ***** VINOD K. SHARMA, J (ORAL) This regular second appeal is directed against the judgment and decree dated 6.10.2009, passed by the learned Courts below, vide which the suit filed by the plaintiff/respondents for possession and mesne profit, stands decreed. The plaintiff/respondents brought a suit for possession, on the plea, that the appellant/defendants were in unauthorised occupation of the land in dispute, therefore, were liable to be evicted and pay the mesne profits for unauthorised possession of the property. The suit was contested, wherein plea was taken by the appellants, that they were tenants over the property in dispute by way of two different rent deeds, therefore, could not be said to be in unauthorised possession. The tenancy was claimed through Chaman Lal, who was said to be karta of the HUF. Support in this regard was also sought from the plea, that Chaman Lal had filed two rent petitions claiming arrears of R.S.A. No. 172 of 2010 (O&M) -2- rent from the appellants, which were dismissed, after the rent was tendered and accepted by him. The learned trial Court found, that by way of sale deed dated 29.7.1998, Chaman Lal had sold his share in the joint property, therefore, he had ceased to be the co-owner of the property on the date when the property was given on rent to the appellants herein i.e. in the year 2000. The learned trial Court held, that the appellants being in unauthorised possession were liable to be evicted, however, the claim of the plaintiff/respondents for mesne profits was rejected. The appellants filed appeal against the order of eviction, whereas the plaintiff/respondents filed cross-objections claiming mesne profits. The learned lower appellate Court affirmed the finding of the learned trial Court holding the appellants to be in unauthorised occupation of the property in dispute, and maintained the order of eviction. The learned appellate Court also decreed the suit for mesne profits, in view of the fact that the stand taken by the defendant/appellants themselves was, that the rent of the property in their possession, was Rs.7,000/- (Rupees seven thousand only) per month. Mr. Mansur Ali, learned counsel, appearing on behalf of the appellants, contends that this appeal raises the following substantial question of law: - “Whether in absence of declaration that Chaman Lal is no longer co-owner could the plaintiff/respondents maintain the suit or could the suit be decreed?” R.S.A. No. 172 of 2010 (O&M) -3- In support of the substantial question of law, the learned counsel for the appellants contends, that it was not the case of the plaintiffs that any decree was passed in their favour showing them to be owners and that Chaman Lal had ceased to be the co-owner of the property, therefore, the judgment and decree passed by the learned Courts below, on the face of it is perverse, specially when in the revenue record, Chaman Lal continued to be shown as co-owner. It is also the contention of the learned counsel for the appellants, that the learned Courts below failed to notice that Chaman Lal continued to be in possession of the property, and handed over possession to the appellants, without any objection from the plaintiff/respondents, and that no action was taken by the plaintiff/respondents, when the suit for eviction was filed under the Rent Act by Chaman Lal, would show that the suit filed by plaintiff/respondents was not competent. On consideration, I find no force in the contentions raised by the learned counsel for the appellants. No declaratory suit is required to be filed by co-owner, prior to filing a suit for eviction against a person in unauthorised occupation. It was for the appellant/defendants to prove that the landlord of the appellants had any title in the property or that he was co-sharer. Once, it is proved by evidence, that Chaman Lal, had already sold his share and was no longer co-sharer of the property in dispute, the learned Courts were fully justified in ordering eviction, in absence of declaratory decree, because there is no such requirement in law for co-owner to have a declaratory decree of his status. The co- owner under law is entitled to seek eviction of a person whether in R.S.A. No. 172 of 2010 (O&M) -4- unauthorised occupation or tenant. The handing over of the possession by Chaman Lal to the appellants also does not advance their case, as the person cannot give better title or right to the person, than the one held by him. Once, Chaman Lal himself had no interest in the property, he could not pass any interest to the appellants. For this very reason, the plea that Section 41 of the Transfer of Property Act protects the appellants, cannot be accepted. Section 41 of the Transfer of Property Act does not deal with the creation of tenancy and has no application to the facts of the case. Mere fact that the respondents took no action in the case filed by Chaman Lal is also of no consequence, as they were not party to the rent petition nor were shown to be aware of it. It was also not pleaded or proved that the plaintiff/respondents by their conduct express or implied had projected Shri Chaman Lal as ostensible owner to attract Section 41 of the Transfer of Property Act. Internal arrangement between the appellants and Chaman Lal could not bind the plaintiff/respondents, as rightly held by the learned Courts below. The substantial question of law raised is answered against the appellants. No merit. Dismissed. (Vinod K. Sharma) January 20, 2010 Judge R.S.