Case: Sk.Sattar Sk.Mohd.Choudhari Vs. Gundappa Amabadas Bukate

The landlord is in appeal before us against the Judgment and Order datedpassed by the Bombay High Court (Aurangabad Bench) by which the judgment and Order datedpassed by the Rent Controller and that of District Judge, Latur passed onaffirming that Judgment, were set aside and the suit of the appellant for eviction of the respondent from the shop in Municipal building No.(Old) and 69 (New), Ward No. 22, Bhusar Lane, Latur, was dismissed.2. Proceedings for eviction were initiated by the appellant on the allegations that the shop measuring 23x 19 was originally owned by his father Shaikh Modh. Chaudhari who died on 12th of March, 1956 leaving behind the appellant and his elder brother, Shaikh Jaffar, as also two other brothers, as his heirs who inherited his properties including the aforesaid shop. Shaikh Jaffar being the eldest was managing the property, particularly as the appellant was minor in 1964 when the shop was let out to the respondent who paid rent to Shaikh Jaffar and continued to pay it till 1974. In the meantime, there was a partition among the brothers and a portion of the shop measuring 23 xfell in the share of the appellant who informed the respondent of the above and required him to pay rent to him. A similar information in writing was also given to the respondent by Shaikh Jaffar but the respondent did not pay rent to the appellant and consequently, his tenancy was terminated by notice datedThis was followed by a petition under Section 15 of the Hyderabad Houses (Rent Eviction and Lease) Control Act, 1954 for the eviction of the respondent on the ground of wilful default in payment of rent as also for the personal need of the appellant who wanted to run his cutlery business in the said shop.3. This petition was filed before the Rent Controller before whom the respondent, in his reply, raised the plea that the shop having been let out to him on behalf of several brothers, he could not be legally evicted at the instance of one of them as tenancy was indivisible. He pleaded that the petition was not maintainable. He also pleaded that thepartition amongst the brothers was mala fide and, in any case, notice for attornment was not given to him. He also pleaded that the shop was not bona fide required by the appellant and that, in any case, he was not a defaulter as he was all along tendering the rent to the landlord but the same was refused by him.4. The petition was allowed by the Rent Controller by his Judgment and Order datedThe High Court before whom the matter was thereafter taken, reversed the Judgment of the Rent controller and that of the District Judge principally on the ground that the question of maintainability of the petition was not considered and the Rent Controller as also the District Judge had no adverted their mind to the question that the tenancy of the shop in question, held by the respondent, was indivisible. The partition, if any, amongst the brothers would not affect the lease which would still remain indivisible and consequently, eviction proceedings at the instance of only one of thewould not be maintainable.6. During the pendency of the appeal in this Court, the respondent purchased the remaining portion of the shop namely, the portion measuring 23 xwhich had fallen in the share of the appellants brother, Shaikh Ahmad Chaudhari, from Smt. Zubedabi, his wife, to whom he had gifted the property and thus he claimed to have become the owner of that portion of the shop.

Reasoning:
37. In view of the above discussion, it is obvious that the law with regard to the splitting of tenancy is not what the High Court has set out in the impugned judgment. As pointed out earlier, acannot 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 theIf, however, all theors 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. The right of joint lessors contemplated by Section 109 comes to be possessed by each of them separately and independently. There is no right in the tenant to prevent the joint owners orfrom partitioning the tenanted accommodation among themselves. Whether the premises, which is in occupation of a tenant, shall be retained jointly by all the lessors or they would partition it among themselves, is the exclusive right of the lessors to which no objection can be taken by the tenant, particularly where the tenant knew from the very beginning that the property was jointly owned by several persons and that, even if he was being dealt with by only one of them on behalf of the whole body of the lessors, he cannot object to the transfer of any portion of the property in favour of a third person by one of the owners or to the partition of the property. It will, however, be open to the tenant to show that the partition was not bona fide and was a sham transaction to overcome the rigours of Rent Control laws which protected eviction of tenants except on specified grounds set out in the relevant statute.38. Learned counsel for the respondent relied upon a decision of this Court in Badri Narayan Jha v. Rameshwar Dayal Singh, 1951(2) SCR 153 : (Distinguished) and contended that the severance or assignment of a part of the reversion would not affect the integrity of the lessee. This case is wholly inapplicable to the facts of the present case, in that case, there were several lessees who had divided the tenancy rights among themselves and had thus split up the lease. It was in this connection that it was laid down that anpartition of the lessee right amongst thewould not affect their liability qua the lessor for the payment of the whole rent as they continue, in status, as a single tenant. It was further observed that in law anpartition of the lease hold interest would not affect the integrity or the lease.39. The decision in Badri Narayan Jhas case was considered by this court in Mohar Singh v. Devi Charan, (supra) and was not followed on the ground that it related to partition of theWe have already indicated above that during the pendency of the appeal in this Court the respondent has purchased the remaining portion of the shop, which had fallen in the share of the appellants brother. This portion measures 23 xIt has been purchased from Smt. Zubedabi, wife of appellants brother, in whose share the said portion had fallen on partition, and who had gifted that portion to his wife. The copy of thehas been filed in this Court, to which no objection has been taken by the counsel for the respondent. The respondent does not deny the transaction. He having purchased the remaining portion of the shop, became the owner thereof and his interest as a tenant merged in his right as an owner of that portion. He, therefore, remained a tenant only in respect of the disputed portion and consequently the suit filed by the appellant in respect of that portion was clearly maintainable.