IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No. 4196 of 2005 (O&M) Date of Decision: 23.2.2010 Thakar Dass (since deceased) through L.Rs. ....... Appellant through Shri Amarjit Markan, Advocate. Versus Surjit Singh and others. ....... Respondent nos. 1 & 2 through Shri M.S.Lobana, Advocate. None for proforma respondent nos. 3 to 9. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? .... Mahesh Grover,J. The plaintiffs-respondent nos. 1 and 2 had filed a suit for possession by way of partition of the property measuring 477.7/9 square yards which was fully detailed in the plaint. It was pleaded that they along with their brother Chand Singh (since deceased), who was impleaded as defendant no.2 in the suit, were owners of the suit property in equal shares; and that Chand Singh sold his 1/3rd share out of the property to Thakar Dass (since deceased and represented by his legal representatives), who was arrayed as defendant no.1, on 6.12.1986. Since the plaintiffs wanted R.S.A.No.4196 of 2005 (O&M) -2- .... partition of the suit property, they approached the Court. Thakar Dass put in appearance and filed his written statement admitting that the plaintiffs and Chand Singh had purchased the property in dispute in equal share vide sale deed dated 4.4.1967 and that Chand Singh was having 1/3rd share in it which was sold to him on 6.12.1988. It was pleaded that he was a tenant in the suit property since long and had taken it from the plaintiffs and Chand Singh and also raised construction thereon; that he had spent Rs.70,000/- on improvement of the suit property and that if the suit for partition is decreed, then the plaintiffs were not entitled to eject him from the portion which falls to their shares because he was tenant in the entire suit property. It was further pleaded by Thakar Dass that he could be evicted from the suit property only on the grounds which are available to the landlords under the provisions of the Rent Act as he was a statutory tenant. He also disputed the measurement of the area which was described as suit property as it did not conform to the measurements given in the sale deed dated 4.4.1967 and also pleaded that the suit was not maintainable. Replication was filed by the plaintiffs denying any construction having been raised by Thakar Dass on the suit property. It was pleaded that they had raised construction over the suit property after getting the site plan sanctioned from the municipal authorities. On the pleadings of the parties, the following issues were framed:- 1. Whether defendantno.1 has purchased 1/3rd share of R.S.A.No.4196 of 2005 (O&M) -3- .... defendant no.2 in the land in suit vide registered sale deed dated 6.12.1987 (sic. 1988)?OPD 2. Whether the suit is not maintainable in the present form?OPD 3. Whether defendant no.1 has spent Rs.70,000/- on the construction, electricity fitting and water supply?OPD 4. Whether the suit is bad for partial partition of the suit land?OPD 5. Whether defendant no.1 is in possession of the land in suit, as tenant, if so its effect?OPD 6. Relief. The trial Court, vide its judgment dated 16.8.1996, decreed the suit in the following terms:- “In view of my findings on the aforementioned issues,suit of the plaintiffs for possession by partition of the property measuring 477.7/9 Sq.Yds. And the construction raised on it, as per details given in the head note of the plaint, situated on College Road, Malerkotla is decreed. Plaintiffs no.1 and 2 are entitled to 1/3rd share each in the property in dispute and defendant no.1 is entitled to 1/3rd share in the property in dispute. The plaintiffs would get possession of 2/3rd share from the tenants on the basis of final order to be passed by the competent authority, on the basis of eviction petition, copy Ex.P-1, instituted by the landlords against the tenants, but, symbolic possession can be R.S.A.No.4196 of 2005 (O&M) -4- .... delivered after the final decree is passed. A preliminary decree be prepared accordingly and file be consigned to judicial record room.” The plaintiffs, feeling aggrieved by the observations of the trial Court in the relief clause whereby a direction was given to hand over the symbolic possession after the final decree, filed an appeal, whereas Thakar Dass submitted his cross objections. The first appellate Court, vide its judgment dated 1.12.1998, allowed the appeal and dismissed the cross objections. Paragraphs 7 and 8 of the judgment which contain the relevant discussion, are produced below:- “7. The respondent no.1 Thakar Das purchasd 1/3rd share in the suit property measuring 477.7/9 sq.yards (Ex.D5). Otherwise the firm stood dissolved and ejectment order has been passed against, Thakar Dass, respondent-defendant and others (Ex.D7). As Thakar Dass purchased 1/3rd share in the suit property, so he has ceased to be tenant in the demised premises and has become co-sharer in the suit property. For this I rely upon 1985(2) Rent Law Reporter 537, Piara Lal and others Vs. Tirath Singh, wherein it has been so held by their lordships:- “East Punjab Urban Rent Restriction Act,1949, Section 13 and 15 Ejectment orders passed on the ground that the tenant has impaired materially the value and utility of the building -During the pendency of the revision tenant becoming co-owner of the property by purchasing 1/3rd R.S.A.No.4196 of 2005 (O&M) -5- .... share each of two co-owners. In view of this no ejectment order can be passed.” 8. So appellants-plaintiffs are entitled to get possession of 2/3rd share of the suit property measuring 477.7/9 sq. yards under final decree as appellants-plaintiffs are to get possession as co- sharers after passing of final decree and respondent No.1 will get possession of 1/3rd share of the suit property under final decree. With this modification this civil appeal is allowed and words “from the tenants on the basis of final order to be passed by the competent authority, on the basis of the eviction petition, copy Ex.P1, instituted by the landlords against the tenants,but symbolic possession can be delivered after the final decree is passed” are deleted from the judgment and decree sheet. Otherwise the cross-objections filed by Thakar Dass respondent-defendant no.1 has got no merits and same are dismissed. There is no order as to costs. Let the decree sheet be prepared and trial court record be sent back being no longer required. File of this court be consigned to the record room.” A finding was,thus, recorded that Thakar Dass ceased to be a tenant after having purchased 1/3rd share from Chand Singh, one of the co- owners of the suit property. This finding was never challenged by Thakar Dass and, therefore, it attained finality. The plaintiffs, thereafter, filed an application on 21.1.1999 for R.S.A.No.4196 of 2005 (O&M) -6- .... passing of final decree in terms of judgments dated 16.8.1996 and 1.12.1998 passed respectively by the trial Court and the first appellate Court. A reply thereto was filed by Thakar Dass. The Additional Civil Judge (Senior Division), Malerkotla passed an order dated 13.5.2003 in the said application and while parting with it, observed that the findings given by the trial Court and the first appellate Court were binding upon the parties in the absence of any challenge to the same and, therefore, he appointed a Local Commissioner, who was authorised to furnish two or three options to explore the possibility of partition which would satisfy the parties. The Local Commissioner submitted his report after visiting the site on 14.5.2003. The relevant portion of the report is extracted below:- “Therefore, undersigned prepared the site plant separating the area 1/3 share out of 477.77 square yards which comes to 159.1/4 square yards shown in the two site plans. Area of Thakur Dass shown in red colour and with letters. The portion of Sher Singh and Surjit Singh has been shown in the site plans with blue colour and with letters 2/3th share of Sh.Sher Singh and Surjit Singh was to be separated from 477.77 sq.yards. Therefore, undersigned prepared two site plans separating the area 2/3 share out of 477.77 square yards which comes to 318.1/2 square yards or 10.1/2 marlas. Approximate value of construction shown in site plan mark A with letters ABCD is forty thousand and construction shown in blue colour with letters CDEF is two lacs sixty thousand only. R.S.A.No.4196 of 2005 (O&M) -7- .... Construction in site plan mark B shown in red colour is one lac eighty thousand only and construction shown in blue colour with letters CDEF is one lac twenty thousand only. 2 site plans are attached herewith this report.” Consequent thereto, Thakar Dass filed objections dated 6.12.2003 which were dismissed vide orders dated 23.11.2004. While adjudicating upon the same, the Additional Civil Judge (Senior Division), Malerkotla observed while referring to the report of the Local Commissioner that no objection had been raised regarding these modes of partition and accordingly, proceeded to pass a final decree for exclusive possession of the suit property and directed that the plaintiffs shall be entitled to 2/3rd share which comes to about 318.1/2 square yards as per site plan Mark `B' whereas Thakar Dass is entitled to 1/3rd share as per report of Local Commissioner dated 20.8.2003 and site plan Mark `B' after adjusting the amount of constructed portion. It was further directed that final decree be prepared and file be consigned to records. Thakar Dass, dis-satisfied with the aforesaid order, went up in appeal which has since been dismissed vide order dated 26.7.2005 giving rise to the instant appeal. Learned counsel for the appellant has primarily raised an argument that in a partition suit, the tenant cannot be evicted. He has placed reliance on a Single Bench judgment of this Court in Piara Lal and others Versus Tirath Singh, 1985(2) P.L.R. 452 and a Division Bench judgment of Madhya Pradesh High Court in Hameeda Begam Versus Champa Bai Jain, R.S.A.No.4196 of 2005 (O&M) -8- .... 2004(1) R.C.R. (Rent) 120. To the contrary, the learned counsel for the plaintiffs supported the impugned orders and prayed for dismissal of the appeal. After hearing the learned counsel for the parties and perusing the material on record, I am of the considered opinion that no such question arises for consideration of this Court. The status of Thakar Dass as a co- owner extinguished his status as a tenant over the property and a finding to that effect was recorded by the first appellate Court in its order dated 1.12.1998 which he never challenged. The preliminary decree passed by the trial Court was affirmed by this modification. Thereafter, the final decree was drawn up on the basis of the report of the Local Commissioner which was also not objected to by Thakar Dass. Whatever objections were filed by him were also dismissed. Once Thakar Dass has himself accepted the finding recorded by the first appellate Court while answering the challenge to the preliminary decree passed by the trial Court, it does not lieu in his mouth to rake up the plea that he is a tenant in the suit property and more- so when his status as a tenant stood extinguished and he did not file any further appeal challenging the same and also did not make any challenge to the report of the Local Commissioner. The appeal is, therefore, held to be totally misconceived and is dismissed. Before parting with the judgment, I observe that Thakar Dass made a tenacious, conscious, and deliberate attempt to cling on to the suit property without any particular right ever since 1998 when his status as a tenant stood extinguished, by raising unwarranted objections. The R.S.A.No.4196 of 2005 (O&M) -9- .... Executing Court, therefore, will take notice of this fact and take immediate steps to ensure that possession is handed over to the plaintiffs in accordance with law within a period of three months from today and if the police help has to be resorted to in the first instance, the same shall be afforded to them. February 23,2010 ( Mahesh Grover ) “SCM” Judge