Delhi High Court

S.N. Sheopuri vs Fab India Overseas P. Ltd. on 4 July, 2011

Author:
S.Ravindra Bhat

Bench:
S. Ravindra Bhat

* IN THE HIGH COURT OF DELHI AT NEW DELHI

RESERVED ON : 05.03.2010
DECIDED ON : 04.07.2011

+ CS(OS) 246/2009

S.N. SHEOPURI ..... Plaintiff

Through : Mr. Rajiv Sharma and Mr. Sanjeev Sindhwani, Advocates.

versus

FAB INDIA OVERSEAS P. LTD. ..... Defendants

Through : Mr. R.K. Mehta, Mr. Virender Mehta, Ms. Manju Mehta and
Ms. Saroj, Advocates.

CORAM:

MR. JUSTICE S. RAVINDRA BHAT

1. Whether the Reporters of local papers YES
may be allowed to see the judgment?

2. To be referred to Reporter or not? YES

3. Whether the judgment should be YES
reported in the Digest?

MR. JUSTICE S.RAVINDRA BHAT
%

1. This suit claimed a decree for possession and mesne profits. The plaintiffs, claimed to be
owners of premises bearing No.14, N- Block Market, Greater Kailash-I, New Delhi- 110 048
("the suit premises"), located on a 197 sq. yards plot consisting of a basement, ground floor,
first floor and second floor, with a total covered area of approximately 4,200 sq. feet. The
suit alleges that the defendant was inducted as a tenant in the suit premises sometime in the
1970‟s. From time to time the rent was increased, the last rent being ` 20,000/- per month.
No lease deed was executed for letting out the suit premises; the arrangement was a monthly
tenancy, starting from the first day of each English calendar month and expiring on the last
day.

CS(OS) No.246/2009 Page 1
2. The suit alleges that by a registered post notice dated 10th May, 1995 sent on behalf of the
plaintiffs, the tenancy was terminated with effect from the expiry of mid night of 30 th June,
1995. The notice stated that if the defendant considered the tenancy month to be different
(from the one stated in it), then the tenancy would stand terminated in June, 1995, on the
expiry of the day, which according to it was the last day of the tenancy month. By a letter
dated 31.05.1995 the defendant responded to the notice contending that its tenancy was
protected under the
Delhi Rent Control Act
. The plaintiff‟s ownership of the premises, extent
of tenancy premises, the monthly rent and the month to month nature of the tenancy was not
denied.
3. The suit alleges that despite the notice, the defendant did not hand over vacant and
physical possession; the rent of the suit premises is more that ` 3,500/- per month. Therefore,
the Delhi Rent Control Act did not apply to the premises. It was alleged that on termination
of the tenancy the defendant had no right, title or interest in the suit premises and as such the
plaintiffs are entitled to recover the possession of the premises, as also mesne profits on
account of alleged wrongful, unauthorized and illegal use and occupation of the suit premises.
It is alleged that the rent of the premises was paid by the defendant at the rate of ` 20,000/-
per month till 30th April, 1995. The defendant used to remit rent by way of a cheque for `
16,000/- after deducting `4,000/- as TDS. However, for the month of May, 1995 the
defendant sent a cheque for ` 19,200/- along with a note to the effect that it represented a 10%
increase. The plaintiffs had not asked for or assented to an increase of rent nor was there any
agreement providing for increase of rent. The suit alleges that sending of a cheque for a
higher amount was an attempt by the defendant to defeat the notice of termination. Since the
said cheque was not for the correct amount it was not en-cashed by the plaintiffs. The rent for
the months of May and June, 1995 is in arrears. Accordingly, the Plaintiffs are entitled to a
decree for ` 40,000/- by way of arrears of rent. The plaintiff seeks mesne profits for the
period 01.07.1995 to 31.08.1995 at ` 1,00,000/- per month which is the prevailing rate in the
area at present and future mesne profits at the rate prevailing in the area at the time of disposal
of the suit. The plaintiffs are further entitled to interest on the arrears of rent and mesne
profits @18% per annum at monthly rates.
4. It is alleged that earlier the defendant was known as Fab India Overseas Pvt. Ltd.
However, the defendant‟s recent correspondence bears the stamp of "Fab India Overseas

CS(OS) No.246/2009 Page 2
Ltd." even though its letterheads continue to bear the name "Fab India Overseas Pvt. Ltd."
The plaintiffs claim that the defendant has become a deemed Public Limited Company.
5. During the pendency of the suit, the original plaintiff Shri S.N. Sheopuri died on
06.01.1999. His share in the suit property devolved upon his elder daughter Mrs. Lakshmi
Dar who was brought on record in the proceedings. Mrs. Lakshmi Dar died on 04.09.2002;
consequently, her son and daughter Mr. Dhruv Dar and Mrs. Preeti Atal were brought on
record in place of their deceased mother. By sale deed dated 21.10.2005 Mr. Dhruv Dar and
Mrs. Preeti Atal sold 50% share in the suit property to the defendant. consequently the second
plaintiff and the defendant became co-owners of the suit property in equal shares. The sale
deed was signed on behalf of the defendant by Mr. H.K. Sibal, its authorized signatory and
was registered with Sub-Registrar on 21st October, 2005.
6. During the pendency of the proceedings, defendant had filed an application under Order
6 Rule 17 in which defendant inter alia averred that ―the plaintiff is not entitled to relief of
possession against a co-owner of the property in the absence of seeking a partition by metes
and bounds .......‖ .....―the plaintiff Smt. Janak Mushran is joint-owner of the suit property
along with defendant to the extent of 50% undivided share. Therefore, it is wrong to say that
Smt. Janak Mushran is the owner and the landlord qua defendant in defendant in respect of
the suit property‖. In Para 10-B, of the suit, it is averred that in view of the aforesaid
developments, the plaintiff does not wish to keep her share in the suit property jointly with the
defendant and seeks partition. The plaintiff mentioned about co-ownership of the suit
property with the defendant, by her, which was acknowledged in the Sale Deed of October 21,
2005. The suit property is deemed to be in joint possession of both the parties, since
possession of one co-owner is on behalf of the other co-owner as well. Therefore, the
plaintiff is in joint possession of the suit property. It is further averred that the premises are
capable of partition by metes and bounds, evidenced from its site plan. A copy of the original
sanction plan was annexed to the suit.
7. To say that the property has great potential rental value, the plaintiff avers that it is tenant
in a building immediately adjoining the suit property, viz No.13, N Block Market, Greater
Kailash-I, New Delhi. The defendant is a tenant in the basement and the ground floor of the
said property at a rent of ` 4,00,000/- per month. That property was taken on rent by the
defendant by lease deed dated 23rd May, 2007 registered with the Sub Registrar, New Delhi at

CS(OS) No.246/2009 Page 3
Registration No.6358 at Additional Book No.1, Volume 7334, pages 157-172. It is also
alleged that in the same market, the defendant is a tenant in occupation of premises bearing
No.N-9 and N-5, Greater Kailash-I (Market), New Delhi. The ground floor and first floor of
premises bearing No.9, N Block Market, Greater Kailash-I, New Delhi was leased by the
defendant by lease deed dated 14th June, 2002 at a monthly rent of ` 1,50,000/-. In addition,
defendant had also agreed to furnish an interest free security amount of ` 24 lakh. A certified
copy of the said lease deed is annexed with the suit. It is alleged, therefore, that the plaintiff
is, therefore, entitled to rendition of accounts in terms of
Order 20 Rule 12 CPC
from the
defendant for the period October 21, 2005 up to the date of handing over the possession of
plaintiff‟s share of the property to her.
8. The suit has been valued for purposes of court fee and jurisdiction. So far as the relief of
possession is concerned, it has been fixed at ` 2,40,000/-. The value of the suit for the
purpose of court fee and jurisdiction so far as the relief of possession is concerned is fixed at `
40,000/-. The value of the suit for the purpose of court fee and jurisdiction so far as the relief
of mesne profits is concerned is fixed at ` 2,00,000/- being the mesne profits/damages for
unauthorized use and occupation of the suit premises for the months of July and August,
1995. The value of the suit for the purposes of court fees and jurisdiction for the relief of
partition is fixed at ` 1 Crore for which a fixed court fee of ` 20/- is paid, since the plaintiff
claims to be in joint possession of the suit property.
9. The defendant, in the amended written statement, contests the suit averments, and has
detailed the particulars regarding creation of alleged separate tenancies. It is alleged that the
letting out of the ground floor portion was in 1970 and 1973 while the agreement creating a
tenancy for the first floor was agreed in March, 1976, while the agreement creating a tenancy
for the basement, with effect from 01.04.1976. The separate tenancies created by late S.N.
Sheopuri were shown as follows:

(a) One shop on ground floor w.e.f. 17.3.1990 at the agreed rate of ` 500/- per month and in
1993, the rate of rent being ` 2400/- per month.
(b) Another shop on the ground floor w.e.f. 21.11.1973 at the rate of ` 500/- per month and in
1993, the rate of rent being ` 2400/- per month.

CS(OS) No.246/2009 Page 4
(c) First floor with effect from February, 1975 at the agreed rate of ` 700/- per month and in
1993, the rate of rent being ` 6600/- per month.
(d) Basement with effect from 1.4.1976 at the agreed rate of ` 1200/- per month and in 1993,
the rate of rent being ` 2800/- per month.
(e) Second floor with effect from 16.4.1976 at the agreed rate of ` 400/- per month and in
1993, the rate of rent being ` 3900/- per month.
(f) a sample Room on the ground floor w.e.f. 1.6.1976 at the agreed rent of ` 300/- per month
and in 1993, the rate of rent being ` 1900/- per month.
10. It is alleged that there are and always were six different tenancies and the rate of rent of
few tenancies was below ` 3500/- per month. Therefore, the defendant‟s tenancies are
covered under the Delhi Rent control Act for which the remedy is provided under that Act
only can be availed; the landlord has been vested with certain rights in terms of
Section 14
of
the Act for evicting his tenant. The defendants rely on
Section 50
of the Act, to contend that
this court lacks jurisdiction. The provision is as follows: -
―Save as otherwise expressly provided in this Act, no civil court shall entertain any suit
or proceedings in so far as it relates to the fixation of standard rent in relation to any
premises to which this Act applies or to eviction of any tenant there from or any other
matter which the Controller is empowered by or under this Act to decide, and no
injunction in respect of any action taken or to be taken by the Controller under this Act
shall be granted by any Civil Court or other Authority.‖
It is contended that the above bar is reinforced by
Section 14
which through sub- section (I)
(a) to (l) provide legal remedies to a landlord for evicting his tenant. The present suit is
therefore barred.
11. It is contended that the plaintiff‟s plea that the rate of rent is ` 20,000/- per month
is misconceived because the documents on record contain the terms of tenancy and the rate of
rent agreed by the parties at the commencement of the tenancy. Once the rate of rent is
agreed between the parties, it cannot be enhanced or increased in view of the provision laid
down in
Section 5
of the Delhi Rent Control Act. The said provision reads as under: -
(1) Subject to the provision of this Act, no person shall claim or receive any rent in excess of
the standard rent, notwithstanding any agreement to the contrary.
(2) No person shall, in consideration of the grant, renewal or continuance of a tenancy or
sub-tenancy or any premises -
(a) claim or receive the payment of any sum as premium or pugree or claim or receive any
consideration whatsoever, in cash or in kind, in addition to the rent; or

CS(OS) No.246/2009 Page 5
(b) except with the previous permission of the Controller, claim or receive the payment of
any sum exceeding one month's rent of such premises as rent in advance. Since the aforesaid
provision of law prohibits a landlord to claim any rent other than the rent agreed, therefore,
any amount received by the landlord more than that of the agreed rate of rent cannot bestow
upon such landlord any legal right to perpetuate his illegal acts, which are contrary to the
statute.

It is thus contended that a contract or agreement whereby the landlord claims a sum of `
20,000/- per month as rent is contrary to
Section 5
of the Act and is hit by the provisions of

Section 23
of the Indian Contract Act, 1872.
12. It is stated that by reason of
Sections 6-A
and
Section 8
of the Delhi Rent Control Act,
there cannot be any automatic revision in the rate of rent.
Section 6-A
of the Delhi Rent
Control Act clearly stipulates that the agreed rate of rent can be increased by 10% every three
years subject to a legal notice in conformity with the provision of
Section 8
of the Delhi Rent
Control Act and in the present case there have been no notice in accordance with the said
provision of law.
13. The defendant argued that the present suit is also not maintainable as different tenancies
commenced on different dates containing different rates of rent, therefore they were based on
different causes of action and there cannot be joinder of those causes of action in a single suit.
Therefore, the suit of the plaintiffs is also liable to be dismissed on this ground.
14. It is alleged that the plaintiff knew that six different tenancies of the premises, were
created by late S.N. Sheopuri as he was a co-owner of the property along with his daughter,
Smt. Janak Mushran, the second plaintiff. S.N. Sheopuri expired in the year 1999; he had an
undivided half share in the suit property which devolved upon his daughter, Smt. Laxmi Dar.
On her death in the year 2002, that undivided half-share devolved upon her legal heirs who
sold that interest or undivided share, through a registered Sale deed dated 21.10.2005,
registered in the office of Sub Registrar concerned, New Delhi in favour of Fab India
Overseas Pvt. Ltd., the defendant. Therefore, in terms of the sale deed dated 21.10.2005, the
defendant being the tenant of six different tenancies in various portions of the entire suit
property, succeeded to the undivided share originally held by late S.N. Sheopuri to the extent
of 50% along with Smt. Janak Mushran. The learned Additional District Judge, Delhi by
order dated 26.11.2007 intimated the plaintiff that its suit for possession was not maintainable
against the co-owner. The learned Judge, nowhere held that the defendant ceased to be the

CS(OS) No.246/2009 Page 6
tenant in the property. The plaintiff did not challenge that order, dated on 26.11.2007 and
accordingly the said court, by order dated 29.4.2008 amended and deleted certain issues, since
the plaintiff did not challenge the order dated 27.11.2007 despite being provided a number of
opportunities. The plaintiff thereafter filed the present amended suit claiming partition,
possession, arrears of rent, mesne profits and rendition of accounts, which is now presently
pending before this Court.
15. The defendant contends that the suit in the present form is not maintainable, as there is no
legal heir of late S.N. Sheopuri in the present suit, because his share devolved upon M/s. Fab
India Overseas Pvt. Ltd. Therefore, the suit, on this ground alone is liable to be dismissed.
16. The defendant also argues that the suit is not properly valued for the purpose of court fee
and jurisdiction, so much so the undivided half share of the suit property was sold on
21.10.2005 for a sum of ` 2.50 crore (Rupees two crore and fifty lakh only) to M/s. Fab India
Overseas Pvt. Ltd. while the plaintiff, Smt. Janak Mushran who claims to be a co-sharer of
undivided half share has assessed its value at ` 1.00 crore. The plaintiff has thus under-
valued the suit property and the suit is, therefore, liable to be rejected under the provisions of
Order-VII, Rule-11 (c)
CPC
. It is alleged that the plaintiff has not paid the requisite ad-
valorem court fee on the plaint on the relief of possession as the plaintiff has never been in
possession of any portion of the suit property as admitted in Para 2 of the plaint. Likewise, it
is alleged that the present suit for rendition of accounts is not maintainable against the
defendant.
17. The suit for the relief of mesne profits/damages for the period from 1.7.1995 onwards is
barred by the prescribed period of limitation and even otherwise is not tenable against a
lawful tenant, whose tenancies are protected under the provisions of
Delhi Rent Control Act
.
18. On 14.08.1997, issues were framed by the predecessor Court i.e. the learned Additional
District Judge. In view of later and subsequent developments whereby the undivided half
share was purchased by the defendant, which led to an application for withdrawal of the suit
being filed by it (the defendant) and later the order being recalled, a further application for
amendment of the issues was made. That application under Order-XIV Rule-5
CPC
was
allowed by order dated 29.04.2008, which deleted issue No.7 (―whether the plaintiff is
entitled to recovery of possession of suit premises? OPP‖) and modified issue no.3.
Consequently, the issues in this suit framed as on 29.04.2008 read as follows: -

CS(OS) No.246/2009 Page 7
1. Whether the plaintiff has concealed the material facts that the tenancy was governed by

DRC Act
; if so, its effect? OPD.
2. Whether the tenancy for different portions was in different tenancy and same carried rent
less than ` 3500/- p.m.? OPD.
3. Whether the suit for recovery of rent and mesne profits is not maintainable in view of
provisions of
Sec.50
DRC Act? OPD
4. Whether this Court has no jurisdiction in view of
Sec.50
DRC Act? OPD
5. Whether the defendant is entitled to receive ` Two Lakhs from the plaintiff by way of
counter claim on account of excessive payment? OPD
6. Whether the tenancy of the defendant has been validly terminated? OPP
7. XXX XXX XXX (deleted by order dated 29.04.2008).
8. Whether the plaintiff is entitled to the amounts towards arrears/damages/mesne profits, as
claimed; if so how much and any interest, if so, at what rate? OPP
9. Relief.
19. The order by which original Issue no.7, i.e., the plaintiff‟s entitlement for recovery of
possession of suit premises was deleted had noticed that the plaintiff had not moved any
application for amendment of the suit and the fact that the defendant had purchased 50%
undivided share in the suit property. After that order, the plaintiff moved an application for
amendment of the suit which sought to incorporate a fresh relief i.e. claim for partition [relief
clause (e)] and a claim for rendition of accounts [relief clause (f)]. The defendant resisted the
application and also filed a reply. After considering the rival submissions, the Court by its
order dated 13th October, 2008, allowed the plaintiff‟s application and permitted the
amendments sought to incorporate the relief of partition and rendition of accounts w.e.f.
21.10.2005. The plaintiff urges that in the light of this subsequent development, the Court is
not in any manner inhibited or constrained from making the appropriate orders to fulfil the
ends of justice which in the present case may extend to granting an appropriate partition
decree and also granting suitable mesne profits/decree for accounts.
20. With the above background emerging from the pleadings, the Court now proposes to
discuss the rival contentions and evidence of the parties having regard to the issues framed.

CS(OS) No.246/2009 Page 8
ISSUE NOS. 1 - 5

21. The onus of proving these issues is upon the defendant. Learned counsel firstly argues
that the suit as framed is not maintainable because it does not anywhere claim the relief of
possession as the required ad-valoram court fee has not been paid. It is submitted that the
clear averments in the suit point to the plaintiff not being in possession of the premises or any
part of it. Consequently by merely alleging that the plaintiff being the co-owner was in joint
possession, the obligation to value the relief appropriately and to deposit the requisite court
fee could not have been avoided. Learned counsel relied upon the judgment reported as
Nisheet Bhalla Vs. Malind Raj Bhalla & Ors., AIR 2007 Delhi 60. It was further argued that
the suit originally incorporated the claim for possession; even an issue had been framed (Issue
No.7). By virtue of subsequent developments such as the death of one of the original co-
owners, development of his interest upon his heirs, sale of 50% of the interest in the suit
premises to the defendant etc., the Court amended the issues, deleted the reference to
plaintiff‟s claim for possession (issue No.7). That order has become final. The mere
incorporation of relief claiming partition would not in any manner result in the plaintiff being
entitled to relief of possession.
22. It was argued that the plaintiff‟s omission to amend the suit and seek the consequential
relief of possession (which had already stood deleted by a previous order) has resulted in
rendering the suit untenable. This is because the plaintiff has not sought the most appropriate
relief despite being in possession which precludes adjudication of the suit in its present form.
Reliance was placed upon the decision of the Calcutta High Court reported in as Ghulam
Mohiuddin Vs The Official Assignee & Ors., AIR 1978 Cal 463; and of the Punjab High
Court in S.Bhagat Singh Vs. Satpal Transport Co. Ltd. & Ors. AIR 1961 Punj 278. It was
urged that in these two decisions the Courts had ruled that even after giving an opportunity to
the plaintiff to amend the suit, he fails to avail it by incorporating suitable and appropriate
relief, the Court has to dismiss the suit.
23. Learned counsel relied upon the provisions of
Sections 5
and
of the Delhi Rent
Control Act and urged that the facts established on the record ought to impel the court to
dismiss the suit as it is devoid of jurisdiction. It was argued that the most relevant material as
well as the pleadings clearly point out that at no stage did the parties intend the creation of a
single indivisible tenancy at the monthly rent, which was in excess of Rs.3500/-. Learned

CS(OS) No.246/2009 Page 9
counsel relied upon the averments in the written statement and submitted that the tenancies
were created in respect of six different premises at entirely different points of time. In each
instance, the agreed rent was different and pertained to the tenancy for which the parties
entered into the contract or understanding. Reliance was placed in this regard upon Ex.
PW1/D-2 i.e. late Mr. Sheopuri„s letter acknowledging increase of rent in respect of premises
dated 3rd December, 1975, Ex. PW-1/D-3 dated 28th April, 1978, Ex. DW-7/2 letter dated 21st
November, 1973 written by defendant No.2 to the plaintiff enclosing the rent in respect of a
portion of M-14 Greater Kailash, which was taken over on 15th November, 1973; Ex. DW-7/3
a letter dated 5th February, 1974 written by late Mr. Sheopuri stating that the first floor of
premises M-14 was leased out for commercial rental for a period of three years and enclosing
the existing fittings etc., Ex.DW-7/4 a letter evidencing leasing of the ground floor of the
premises for a monthly rental of Rs.1200/-.
24. It is argued that a conspectus of the documentary material clearly discloses that the
following tenancies were created :
(a) At different times
(b) For different premises
(c) At different rates of rent

Therefore, in the absence of a mutual agreement between the parties consolidating all the
tenancies, or in the absence of the lessee vacating the premises and the Lessor demising all of
them through one common lease deed, there cannot be any straight jacket formula that the
amounts paid to the plaintiff were on account of single, composite or indivisible lease.
Though the parties did not enter into any written contract or agreement, the Court cannot
overlook the circumstances under which the tenancies were created by mutual understanding.
If this aspect were to be kept in kind, the present suit premised on the averments that all the
arrangements were consolidated in one suit in respect of a single premises is untenable and
the Court lacks jurisdiction.

25. It was argued that if the true intent of the contesting parties was to create separate
tenancies which have been acted upon, as is evident from the various letters exchanged by
them most of tenancies were for less than ` 3500/- p.m. Therefore, the suit, drawn on the

CS(OS) No.246/2009 Page 10
pleading that the entire premise was leased out on a rent in excess of ` 3500/- is not
maintainable because of
Section 50
of Delhi Rent Control Act.
26. It is contended the defendant being a tenant under six different tenancies in the suit
property, the suit for partition, possession, arrears of rent, mesne profits and rendition of
accounts against it is not maintainable in view of the law laid down by the Supreme Court of
India in the cases of M/s. India Umbrella Manufacturing Company & Ors. v. Bhagabandei
Agarwalla 2004 (3) SCC 178 and Pramod Kumar Jaiswal v. Bibi Husn Bano & Ors. 2005 (5)
SCC 492.
27. Learned counsel submits that the present suit for the relief of possession without the
consent of co-owner (Fab India Overseas Ltd.) is untenable in terms of the law declared by
the Supreme Court of India in the case of S.K. Sattar S.K. Mohd Choudhari v. Gundappa
Ambadas Bukate 1996 (6) SCC 373.
28. The plaintiff‟s counsel argues that the suit is maintainable, and not barred under
provisions of the
Delhi Rent Control Act
. It is submitted that a plain reading of the
documents, particularly Ex. DW-7/P-11 to Ex. PW. DW-7/P-33 proved that at all material
times, the defendant treated the tenancy as single and indivisible. It is argued that all these
documents reveal that during the period 1995-1995, and even in 1986, rents used to be paid
through one cheque, and even the covering letters for the relative periods indicated that there
was one tenancy, and not that the defendant consolidated the rental amounts for the facility of
convenience, as it contends in the present suit.
29. The plaintiff‟s counsel next contended that the plea of six tenancies was taken by the
defendant, in its first amended written statement, for the first time, and that such a pleading
had not been made in the original written statement placed on the record. It was submitted that
this clearly amounted to a binding admission (in the original written statement) which could
not be resiled from; and so the defendant was estopped by the pleadings from contending
anything contrary to the admission (regarding the plaintiff‟s plea of a single tenancy, made in
the suit).
30. The plaintiff‟s counsel contends that the tabular statements relied upon by the defendant
to say that different rates of rent were agreed upon by the parties, and paid (to the plaintiff), in
support of the submission regarding subsistence of different tenancies, is not admissible,
because it is not supported by any documentary evidence. It is submitted that the books of

CS(OS) No.246/2009 Page 11
account which a company has to maintain and the manner they have to be kept, is prescribed
by
Section 209
of the Companies Act. The defendant has not produced any such document or
primary material in the form of ledger account, etc., which can be considered as reliable, and
contemporaneous. Therefore, the contention regarding subsistence of separate tenancies has to
fail.
31. The plaintiff contends that in the present case, even though tenancies were entered into in
respect of different portions of the suit property at various points in time, the overwhelming
evidence, established through conduct of the parties, disclosed their intention to treat the
tenancy as a single one. The premises were part of the same suit property; the lessor and
lessee were identical, and there was no written agreement in respect of the transaction. It is
submitted that the plea by the defendant that M/s Fab India USA was the tenant, and that it
(the defendant) was not the tenant, is untenable, because:
i) There were six tenancies between the plaintiffs and Fabindia Inc;

ii). There was only a change in name of Fabindia Inc. to Fabindia Overseas Pvt. Ltd.

iii). By virtue of agreement between Fabindia Inc. & Fabindia Overseas the tenancy rights
came to vest in the defendant and thus the defendant became successor in interest of Fabindia
Inc. with the alleged old tenancies continuing in favour of the defendant;

iv.) The plaintiff assented to the vesting of tenancy rights of Fabindia Inc. in Fabindia
Overseas.

The pleaded case in all the four written statements filed by the defendant was that it was a
tenant since 1970 (a patent untruth established by the Certificate of Incorporation of the
defendant which shows that it was incorporated in December 1976). At no point of time was
it pleaded that the defendant was a successor in interest of Fabindia Inc. Rather the
suggestion given by the defendant to PW 1 during cross examination was that Fabindia Inc.
was never a tenant, as is evident from the cross examination of PW 1 that ―It is wrong to
suggest that Fabindia Inc. was never a tenant.‖

32. The plaintiff relies on Ext. PW-1/D1 dated 17.3.1970, Ext. PW-1/D2 dated 3.12.1975,
Ext. DW-7/2 letter dated 21.11.1973, Ext. DW-7/3 dated 5.2.1974, Ext. DW-7/4 letter dated
11.11.1975 and Ext. PW-1/D2 letter dated 3.12.1975. The plaintiff further relies on the

CS(OS) No.246/2009 Page 12
correspondence between the parties and submits that all that it shows is that different portions
of the premises were let out to Fabindia Inc. at different points in time at different rates of
rent. It is submitted that assuming that there were six tenancies in favour of Fabindia Inc. that
cannot lead to a presumption that there were six tenancies as between the plaintiffs and the
defendant. Assuming such a presumption can be raised, the same stands rebutted by:
i. the conduct of the parties, especially of the defendant of sending one rental cheque;
ii. documents exhibited as Ex. PW 1/6, Ex. PW7/1-33 all of which emanate from the
defendant;
iii. the failure of the defendant to produce even one document from its records whether in the
shape of account books, vouchers, letters etc. relating to the period 1977 to 1996.

33. The plaintiff also submitted that the defendant‟s letter dated 2.5.1986 (Ex. Pw-7/33)
refers to a single tenancy and the rent as ` 9,000/-. This rent was accepted by the plaintiffs.
The defendant is estopped from contending the contrary. It was argued that a single tenancy
was admitted in letter dated 31.5.1995 in reply to notice of termination (Ex. PW-1/6). The
notice of termination referred to a single tenancy. Had there been six tenancies, the first
response of the defendant would have been to assert the claim of six tenancies, not to be
referred to as a single „tenancy‟, as was done in the reply. It was further argued that had there
been multiple tenancies, the same would have been reflected in the books of the defendant‟s
accounts; more so, in view of
Section 209 (1)(a)
of the Companies Act which enjoins upon a
company to maintain books of account regarding `matters in respect of which receipt and
expenditure takes place‟. In this context, it is pointed out that DW-7 admitted that the
defendant was not maintaining any file, record or notings in respect of the rent of the alleged
separate tenancies. The relevant portion of the statement relied on is as follows:

―It was only for the sake of convenience that the tenant and landlord
decided that instead of six separate cheques let there be one cheque only as our
organization was and is managed by ladies so we wanted to minimize the paper
and book writing work...
I do not think that I had seen any internal document in our office in which it had
been stated in writing that one cheque was to b issued for the sake of convenience.
The same is true when Fabindia inc. was the tenant.....
Even after the incorporation of the deft. Company these persons were
dealing with the landlord as detailed above. I do not remember that whether we

CS(OS) No.246/2009 Page 13
had informed the landlord after the incorporation of the present deft. Company in
writing that there were six tenancies and not one tenancy (Vol. we had verbally
discussed the same with the landlord after the incorporation of the present deft.
Company)....
The increase was discussed with the landlord and thereafter Kacha
Voucher were being prepared but ultimately the increase would be reflected for
the books of accounts. We are not maintaining any separate file or record, noting
down such periodical increase in the rent of separate petitions.‖
The explanation of "convenience" and the defendant being "managed by ladies" made on its
behalf, it is submitted, besides being incorrect was not pleaded. It was advanced for the first
time during deposition. A plea of convenience contrary to the statutory requirement (
Section
of the Companies Act) ought not to be accepted.

34. Dealing with the issue of insufficient court fee, the plaintiff argues that the plea is
untenable. Reliance is placed on Neelavathi Vs. N.Natrajan (AIR 1980 SC 691) where it was
held by the Supreme Court that the question of the court fee must be considered in the light of
the allegations made in the plaint and its decision cannot be influenced either by the pleas in
the written statement or by the final decision of the suit on merits, and that in the case of co-
owners, the possession of one is in law possession of law the other, unless ouster or exclusion
is proved. The court also held that to continue to be in joint possession in law, it is not
necessary that the plaintiff should be in actual possession of the whole or part of the property.

35. Dealing with the objection that the suit is not maintainable, in view of the development of
2002, whereby the heirs of S.N. Sheopuri sold their half undivided share to the defendant, it is
argued that the plea proceeds on a misconception as to the concept of partition. A claim for
partition has two limbs, separation of shares and placing parties in possession of their
respective shares. Thus relief of possession is implicit in the claim for partition. For this,
reliance is placed on the judgment reported as Shub Karant Bubina Vs. Sita Saran Bubna
(2009 (12) SCALE 209, where the Court observed as follows:

―4. `Partition' is a re-distribution or adjustment of pre-existing rights, among co-
owners/coparceners, resulting in a division of lands or other properties jointly
held by them, into different lots or portions and delivery thereof to the respective
allottees..... In a suit for partition the prayer is not only for declaration in the suit
properties, but also division by metes and bounds......‖

CS(OS) No.246/2009 Page 14
―5. In a suit is for partition or separation of a share, the court at the first stage
decides whether the plaintiff has a share in the suit property and whether he is
entitled to division and separate possession. The decision on these two issues is
exercise of a judicial function and results in first stage decision termed as
`decree' under Order 20 Rule 18(1) and termed as `preliminary decree' under
Order 20 Rule 18(2) of the Code.‖
To a similar effect is the ruling in Ramagoda Vs. Lagmavva (AIR 1985 Karn 82) is relied on,
where it was held that:

"10. Under S, 54 and O.20, R. 18,
C.P.C
., the only duty of the Collector, now
called as the Deputy Commissioner, is to effect partition or division by metes and
bounds in accordance with law, if any for the time being in force, relating to
partition or separate possession of shares of such estate. The word 'partition'
used in
S. 54
or O.20; R. 18, in my opinion, means that the partition is not
confined to mere division of the lands concerned into the requisite parts, but also
includes the delivery of shares to the respective allottees. To elaborate further, the
word 'partition' means actual division or partition by metes and bounds and
handing over possession of the shares to the parties.‖

36. The first question which the court has to decide is whether there was a single tenancy, as
is asserted by the plaintiff, or whether there were multiple tenancies, as is urged on behalf of
the defendant. The facts which emerge from the pleadings and the evidence are that different
portions of the premises were let out for different monthly rents. The common feature
amongst these, however, was:

(1) All the portions were part of the same property, i.e. the suit premises.

(2) There was no instrument, or registered deed, creating the lease or leases in respect the
premises.

(3) The evidence shows that over a long period, the defendant used to pay a single amount
towards rent; even the tax deduction at source, was based on a single payment.

(4) The reference in the letters written to the plaintiff by the defendant, enclosing the rent,
was towards rent for the premises.

(5) The tenant was common, i.e. the defendant. Initially, the arrangement was with Fab India
Inc. Later, the tenancy was, on a reading of the materials on record, changed in favour of Fab
India Overseas Pvt. Ltd, in 1976. The agreement Ex. DW 7/6 between the two said

CS(OS) No.246/2009 Page 15
companies. Ex. DW 6/4 and Ex. DW 6/5 also show that Fabindia Inc. was a shareholder in
Fabindia Overseas Pvt. Ltd. This establishes that the two were separate entities. However, the
tenancy was assigned or devolved in favour of the defendant company.

37. The first decision on the question of whether an arrangement between the landlord and
tenant constitutes a single, indivisible contract (of tenancy) or it has to be seen as separate
transactions, in the context of a plea by the tenant, under the
Delhi and Ajmer Rent Control
Act
, the Supreme Court, in S. Sanyal v. Gian Chand AIR 1968 SC 438 held that unless the
law provides otherwise, a single tenancy cannot be split into several ones by the court. In
Hiralal Kapur v. Prabhu Choudhury, (1988) 2 SCC 172, the court had to consider whether
payment of rents for separate portions, by separate individuals, at the consent of the landlord,
where the initial tenancy was single, constituted separate contracts. The court held that:
― We are inclined to agree with this submission of the landlord. The initial
tenancy was only an oral tenancy. Nevertheless there were two witnesses who
deposed that the original tenancy agreement was only between the petitioner and
the respondent. At that time, admittedly, there was no question of Balkunj being

the tenant in respect of any portion of the premises. All that the respondent says is
that subsequently cheques were being issued in the name of Balkunj also and that
this must be taken to lead to an inference that the petitioner had accepted Balkunj
as its tenant. It is very difficult to accept this argument. It is no doubt true that the
rent has been paid by two cheques since November 1976 but the mere payment of
rent by two cheques, in the circumstances of this case, cannot mean that there
were two tenancies. The landlord was entitled to a rent of Rs 600 p.m. and so long
as he got this amount, it was immaterial for him whether the amount was paid in
a lump sum or by one cheque or more than one cheque and who the makers of the
cheques were. It is not unusual to come across cases where a tenant pays the rent
not by a cheque drawn by himself but by a cheque drawn by some other concern
in which he has an interest such as a partnership concern, a limited company or
other entity in which he is interested. So, the mere fact that for some reason the
respondent chose not to issue a single cheque for the rent of Rs 600/- but that he
gave two separate cheques, one for Rs 250 drawn by himself and one for Rs 350/-
drawn in the name of Balkunj cannot lead to an irresistible conclusion that the
tenancy was created in favour of Balkunj with the concurrence of the landlord.
The letter dated November 26, 1978, far from ―clinching‖ the respondent's claim,
as held by the High Court, does not in our view improve the tenant's case at all. It
only evidences the fact that the landlord was receiving the cheques issued in the
name of the trust in discharge of the respondent's obligation to pay the rent of Rs
600 p.m. It is also true that, since the landlord was also occupying a part of the
ground floor premises, he might have been aware that certain activities of
Balkunj were being carried on in the hall. But this can only mean that the
landlord permitted the tenant to use a portion of the premises let out for running

CS(OS) No.246/2009 Page 16
the activities of the trust. Even assuming that, standing by themselves these two
facts might have been sufficient to draw any such inference as is suggested the
two letters of August 5, 1977 and January 15, 1978 place the matter beyond all
doubt. The landlord categorically asserted in these letters that he does not
recognize Balkunj as his tenant and that the respondent alone was his tenant.
There was no reply to these letters from the respondent. In these circumstances
there can be no doubt at all that the premises had been let out only to the
respondent by the petitioner and that Balkunj cannot be considered to be a tenant
of the premises or any portion thereof.

8. The finding of the Rent Controller that there was only a single tenancy was
essentially a finding of fact based on the material and circumstances to which we
have adverted and we are also inclined to accept the conclusion of the Rent
Controller as the correct one.‖

Similarly, in
Panjumal Daulatram v. Sakhi Gopal
, (1977) 3 SCC 284, it was held that whether
the lease was a composite one, or for different purposes, and had to be treated as separate
leases, was a question of fact, and the court could not treat a single transaction into separate
ones:

―The residential portion is a part of the building and is an accommodation by
definition. The non-residential portion is also a part of the building and is an
accommodation by definition. The lease has been given for residential as well as
non-residential purposes. The landlord is entitled to eviction of the residential
portion if he makes out a bona fide residential requirement. Likewise he is entitled
to eviction of the non-residential portion which is an accommodation if he makes
out a non-residential requirement. We have already found that The final court of
fact, affirmed by the High Court, has found in favour of the landlord regarding
his residential as well as non-residential requirements. Therefore, nothing more
can be done in defence of the tenant in the light of the present law.

5. Counsel contended that in a decision of this Court viz.
S. Sanyal v. Gian
Chand1
it has been held that it is not permissible for the Court to split up a
contract in an eviction proceeding. We agree. There is no question of splitting up
of the contract in the present case, as is abundantly plain from what we have
stated. The contract was integral but had dual purposes. The landlord has put
forward dual requirements which neatly fit into
Section 12(1)(e)
and (f).

The
consequence is inevitable that the eviction order has to be upheld.‖

An identical approach was accepted and applied by the Supreme Court, in
Habibunnisa
Begum v. G. Doraikannu Chettiar
, (2000) 1 SCC 74, where the court, referring to its previous
judgment, in
S. Sanyal
's case (supra) held that:

―In S. Sanyal v. Gian Chand
it was held that where a contract of tenancy was a
single indivisible contract and in the absence of any statutory provision to that
effect, it is not open to the court to split the tenancy. Law, therefore, is that where
CS(OS) No.246/2009 Page 17
there is a single indivisible contract of tenancy, it cannot be split by a court unless
there is a statutory provision to that effect. In the present case it is not disputed
that the contract of tenancy is a single indivisible contract for Doors Nos.
27 and

28. It is also not disputed that there is no provision in the
Tamil Nadu Buildings
(Lease and Rent Control) Act
empowering the court to order partial ejectment of
a tenant from the premises by splitting the single indivisible tenancy. For these
reasons it was not open to the High Court to split the tenancy and order for
partial ejectment of the tenant from the premises.‖

38. The evidence, in this case, in the form of Ex. PW 1/6, Ex. DW7/1 to DW-7/33 shows that
common rent amounts were consistently paid by the defendant, with a single tax deduction at
source, disclosed by it. The defendant has not produced separate rent receipts in respect of the
six different portions of the premises, for any period, or even one month. It has also not
placed on record any documentary evidence, in the form of ledger extracts or books of its
accounts, showing that though a common amount was paid, in its books the amounts were
maintained as rents for separate premises, so as to establish its case for separate tenancies, to
take the case out of the purview of the civil court. The legal position in this regard appears to
be that even if a property or "accommodation" is let out for two different purposes (i.e.
residential and commercial) the courts would not be justified in splitting the tenancy and
creating separate transactions, unless permitted by law. In Hiralal Kapur (supra) the Supreme
Court went so far as to say that if portions of the premises are occupied by separate
individuals with the approval of the landlord, who receives amounts separately from each of
them, as long as the original tenancy was created by one of them, for the whole premises, and
a portion was later occupied by another person, at the recommendation of the original tenant,
the law would recognize one tenancy between the landlord and the original tenant, and the
court cannot split the tenancy. Having regard to these decisions, and upon an analysis of the
facts of this case, it is held that regardless of the fact that originally, one premise was let out in
favour of the defendant, who was given possession of different portions later, the conduct and
intention of the parties (whose relationship in respect of all the premises, was common, and
all the premises being part of the same suit property) was to create a single indivisible
tenancy, the rent for which was ` 20,000/-.

39.
Section 3
of the Delhi Rent Control Act reads as follows:

―3. Act not to apply to certain premises: Nothing in this Act shall apply;

CS(OS) No.246/2009 Page 18

(a) to any premises belonging to the Government;

(b) to any tenancy or other like relationship created by a grant from the Government in
respect of the premises taken on lease, or requisitioned, by the Government :

Provided that where any premises belonging to Government have been or are lawfully let by
any person by virtue of an agreement with the Government or otherwise, then,
notwithstanding any judgment, decree or order of any court or other authority, the provisions
of this Act shall apply to such tenancy.

(c) to any premises, whether residential or not, whose monthly rent exceeds three thousand
and five hundred rupees...‖

The judgment in
D.C. Bhatia v Union of India
1995 (1) SCC 104 upheld the validity of the

Section 3(c)
which has the effect of excluding, from the purview of the
Delhi Rent Control
Act
, premises and accommodation, the monthly rent of which exceeds ` 3500/-. In this case,
the monthly rent was ` 20,000/-. For these reasons, it is held that the objection to jurisdiction
of this court, based on provisions of the
Delhi Rent Control Act
, is unfounded.

40. The defendant‟s plea about insufficiency of court fee is primarily based on the argument
that the plaintiff is not in possession, and therefore, the relief has to be suitably valued, and
ad-valorem court fee, paid. The plaintiff has relied on the judgment in Neelavathi, where the
choice of the plaintiff, in valuing the suit, when partition is claimed, was explained in the
following manner:

―The general principle of law is that in the case of co-owners, possession of one
is possession of all unless ouster or exclusion is proved. To continue to be in joint
possession in law it is not necessary that the plaintiff should be in actual
possession of the whole or part of the property. Equally it is not necessary that he
should be getting a share or some income from the property. So long as his right
to a share and the nature of the property is not disputed, the law presumes that he
is in joint possession. To apply
S. 37(1)
there should be a clear and specific
averment in the plaint that Plaintiff has been excluded from joint possession. An
averment that remain in joint possession would not amount to exclusion from
possession."

A similar view was expressed in M/s. Commercial Aviation and Travel Company and others
v. Mrs. Vimla Pannalal (AIR 1988 SC 1636).
Earlier, in a five judge ruling, in
S. Rm. Ar. S.
Sp. Sathappa Chettiar V. S. Rm. Ar. Rm. Ramanathan Chettiar
AIR 1958 SC 245, the
Supreme Court held as follows:

CS(OS) No.246/2009 Page 19
―...it would be clear that the conversion of the plaintiff's alleged undivided share
in the joint family property into his separate share cannot be easily valued in
terms of rupees with any precision or definiteness. That is why legislature has left
it to the option of the plaintiff to value his claim for the payment of court-fees. It
really means that in suits falling under
S. 7(iv)(b)
the amount stated by the
plaintiff as the value of his claim for partition has ordinarily to be accepted by the
court in computing the court-fees payable in respect of the said relief.‖
In view of the above settled legal position, the court finds that the suit is not defective or
barred for having insufficient valuation, or that adequate court fee was not paid.

41. The court now proposes to consider the objection to maintainability of the suit on the
ground that the defendant is a co-owner in possession, and the issue regarding possession (No.

7) having been struck off, the plaintiff cannot seek that relief. It is also urged that in the
absence of the original co-owner‟s heirs, as co-plaintiffs, the suit is defective, and that the
defendant cannot now be evicted due to its changed status as an undivided co-owner of the
property.

42. The doctrine of merger of a lower interest with a higher interest (mortgagee becoming the
owner; lessee becoming owner, etc) is well known in property law. Situations where tenants
acquire part interest in the tenanted property, during pendency of a civil suit, have occurred on
a number of occasions, as reported decisions testify.
In one of the earliest decisions,
Badri
Narain Jha v. Rameshwar Dayal Singh
AIR 1951 SC 186, a five Judge Bench of the Supreme
Court held that:

―If the lessor purchases the lessee's interest, the lease no doubt is extinguished as
the same man cannot at the same time be both a landlord and a tenant, but there
is no extinction of the lease if one of the several lessees purchases only a part of
the lessor's interest‖
In
India Umbrella Mfg. Co. v. Bhagabandei Agarwalla
, (2004) 3 SCC 178, the Supreme
Court held that:

―....It is well settled that one of the co-owners can file a suit for eviction of a
tenant in the property generally owned by the co-owners. (See
Sri Ram Pasricha
v. Jagannath1
and
Dhannalal v. Kalawatibai2
, SCC para 25.) This principle is
based on the doctrine of agency. One co-owner filing a suit for eviction against
the tenant does so on his own behalf in his own right and as an agent of the other
co-owners. The consent of other co-owners is assumed as taken unless it is shown
that the other co-owners were not agreeable to eject the tenant and the suit was

CS(OS) No.246/2009 Page 20
filed in spite of their disagreement. In the present case, the suit was filed by both
the co-owners. One of the co-owners cannot withdraw his consent midway the suit
so as to prejudice the other co-owner. The suit once filed, the rights of the parties
stand crystallised on the date of the suit and the entitlement of the co-owners to
seek ejectment must be adjudged by reference to the date of institution of the suit;
the only exception being when by virtue of a subsequent event the entitlement of
the body of co-owners to eject the tenant comes to an end by act of parties or by
operation of law.

7. Buchi Devi had willingly joined with Bhagabandei in filing the suit. During the
continuity of litigation she parted with her share in the property. One out of the
two tenants purchased her share. It seems that the tenancy is in the name of a
partnership firm and some of the partners have purchased the share of Buchi
Devi. It is not clear if all the partners or only a few out of all the partners are the
buyers. The fact remains that they have purchased only a share in the property
and not the entire property. The applicability of the doctrine of merger within the
meaning of clause (d) of
Section 111
of the Transfer of Property Act, 1882 is not
attracted. In order to bring the tenancy to an end the merger should be complete
i.e. the interest of the landlord in its entirety must come to vest and merge into the
interest of the tenant in its entirety. When part of the interest of the landlord or
the interest of one out of many co-landlords-cum-co-owners comes to vest in the
tenant, there is no merger and the tenancy is not extinguished.‖

43.
In
Pramod Kumar Jaiswal v. Bibi Husn Bano
, (2005) 5 SCC 492, the Supreme Court
elaborated the position further, through a 3 judge Bench, on an interpretation of
Section 111

of the Transfer of Property Act, in the following terms:

―111. Determination of lease.--A lease of immovable property, determines--

(a)-(c) * * *

(d) in case the interests of the lessee and the lessor in the whole of the property become vested
at the same time in one person in the same right;

(e)-(g) * * *‖
On a plain reading of the provision, it is clear that in a case where a tenant takes an
assignment of the rights of the landlord or the reversion, the lease is determined only in a
case where by such assignment, the interests of the lessee and the lessor in the whole of the
property, become vested in the tenant. The emphasis in the section is clearly on the coalescing
of the entire rights of the lessor and the lessee in the whole of the property in the hands of the
lessee. The above provision incorporates the doctrine of merger at common law. According to
Blackstone (as quoted in Broom's Legal Maxims)
―when a less estate and a greater estate, limited subsequent to it, coincide and meet in one
and the same person without any intermediate estate, the less is immediately annihilated; or
in the law phraseology is said to be merged, that is sunk or drowned in the greater; or to
express the same thing in other words, the greater estate is accelerated so as to become at
once an estate in possession‖.

CS(OS) No.246/2009 Page 21
In Cheshire and Burn's Modern Law of Real Property, 16th Edn., it is stated,
―The term ‗merger' means that, where a lesser and a greater estate in the same land
come together and vest, without any intermediate estate, in the same person and in the
same right, the lesser is immediately annihilated by operation of law. It is said to be
‗merged', that is, sunk or drowned, in the greater estate.‖

It is further stated:

―The essentials are that the estates shall unite in the same person without any intervening
estate, and that the person in whom they unite shall hold them both in the same right.
To illustrate the first essential, if A, who is tenant for life, with remainder to B for life,
remainder to C in fee, purchases and takes a conveyance of C's fee, the intervening life
interest of B, since it is vested, excludes the possibility of merger.‖ (see p. 993)

In Megarry's Manual of the Law of Real Property, 8th Edn., it is explained as follows:

―Merger is the counterpart of surrender. Under a surrender, the landlord acquires the
lease, whereas merger is the consequence of the tenant retaining the lease and acquiring
the reversion, or of a third party acquiring both lease and reversion. The principle is the
same in both surrender and merger: the lease is absorbed by the reversion and
destroyed.

For merger to be effective, the lease and the reversion must be vested in the same person
in the same right with no vested estate intervening.‖

This is based on the principle that a man cannot be a lessee of himself. The House of
Lords in Rye v. Rye5 said that a person cannot grant himself a lease of the land of which
he is the owner. According to Woodfall on Landlord and Tenant:

―It may be laid down as a general rule that whenever the particular estate and that
immediately in reversion are both legal or both equitable, and by any act or event
subsequent to the creation of the particular estate become for the first time vested in one
person in the same right, their separate existence will cease and a merger will take
place.‖

An extinguishment of a tenancy by merger is thus a counterpart of surrender by the
tenant to the landlord.
In
Puran Chand v. Kirpal Singh
this Court stated that a landlord
could not become his own tenant and
―[w]hen a landlord transfers his rights in the leased property to his tenant there would
be a merger of the rights of the tenant in his higher rights as owner and the tenancy
would come to an end under
Section 111(d)
of the Transfer of Property Act‖. (SCC p.
440, para 19).

6. Thus, the ingredients are that two immediate estates should come into the hands of the
same person at the same time and it must be rights in the whole of the property. A merger
is prevented if there is an intermediate estate outstanding with another at the relevant

CS(OS) No.246/2009 Page 22
time. Obviously, the taking of an assignment of a fraction of the reversion, or the rights of
a co-owner landlord, does not and cannot bring about a determination of the lease in
terms of
Section 111(d)
of the Transfer of Property Act. That a lease is not extinguished
because the lessee purchases a part of the reversion was
laid down by
the Privy Council
in
Sk. Faqir Bakhsh v. Murli Dhar
. Their Lordships after setting out the terms of
Section
of the Transfer of Property Act quoted with approval (at IA p. 78) the statement of
the law made by the trial court
in that case
that for a merger to take place, ―the fusion of
interests required by law is to be in respect of the whole of the property‖.

This Court in

Badri Narain Jha v. Rameshwar Dayal Singh
held that if a lessor purchases the whole of
the lessee's interest, the lease is extinguished by merger, but there can be no merger or
extinction where one of several joint holders of the mokarrari interest purchases portion
of the lakhraj interest. It was held that when there was no coalescence of the interest of
the lessor and the lessee in the whole of the estate, there could be no determination of the
lease by merger. We do not think that it is necessary to multiply authorities in the face of
the plain language of the provision and the authoritative pronouncements of the Privy
Council and of this Court
referred to above
. The position emerging from the relevant
provision of the
Transfer of Property Act
is that the lease or tenancy does not get
determined by the tenant acquiring the rights of a co-owner landlord and a merger takes
place and the lease gets determined only if the entire reversion or the entire rights of the
landlord are purchased by the tenant.‖

44. The above decisions show that a lessee who has taken assignment of the rights of
a co-owner lessor, cannot successfully raise the plea of determination of tenancy on the
ground of merger of his lessee's estate in that of a share of the undivided estate of the
landlord, unless that merger is in respect of the complete title or interest. Therefore, it is not
open to the defendant to challenge the maintainability of the suit, on the ground that either the
relief of possession, or of partition, is unavailable. Clearly, the recitals of the sale deed relied
upon by the defendant, dated 21-10-2005, show that the entire interest in the suit property,
was not conveyed; what was conveyed by the heirs of S.N. Sheopuri was a fractional (50%)
share. When the suit was filed, both co-owners had joined as co-plaintiffs. The sale deed
enjoined the vendors (heirs of S.N. Sheopuri) to withdraw the suit; they attempted to do so,
but the order made initially, was recalled, since the co-plaintiff who had always wished to
prosecute the action, opposed withdrawal. Therefore, the heirs of Sheopuri withdrew from the
suit, in their capacity as heirs and legal representatives of the co-plaintiff, who never
expressed her consent to abandon the claim for possession. In these circumstances, the
lessee‟s objection to the maintainability of the suit has to fail.

45. The fifth issue was framed at the behest of the defendant, who contended that it was
entitled to ` 2,00,000/- as counter claim, on account of excess payment of amounts allegedly

CS(OS) No.246/2009 Page 23
made to the plaintiff. The defendant has not led any evidence, on this aspect; the basis of the
claim, was that the enhancement of rents agreed to periodically by the parties, was contrary to
the mandate of the
Delhi Rent Control Act
. However, this court has held earlier, that the said
Act is inapplicable. Furthermore, in the absence of any evidence, the claim is vague, and has
to fail.

46. In view of the above discussion, the findings in regard to Issue Nos. 1-5 are in favour of
the plaintiff, and against the defendant; the suit is maintainable; the counter claim has to fail.

ISSUE NO. 6

47. The onus of proving this issue was upon the plaintiff; it was alleged in the suit that the
tenancy was terminated by letter dated 10-5-1995. To prove this, the plaintiff relied upon the
notice of termination, marked as Ex. PW-1/3, dated 10-5-1995, and the receipt evidencing its
being sent under registered cover (Ex. PW-1/4). The registered acknowledgement card, with
the signature of Ms. S. Madhok, the defendant‟s finance manager, was marked as Ex. PW-1/5.

48. The defendant replied to the legal notice (Ex.PW-1/3) by which the plaintiff had sought
to terminate the tenancy. In PW-1/3, the plaintiff had stated that the tenancy would stand
terminated by the end of June, 1995. In PW-1/6, i.e., the defendant‟s letter in reply to the
plaintiff‟s notice terminating the tenancy, there is a clear acknowledgement of the receipt of
the letter. The only objection taken to the termination was that ―our tenancy is protected
under provisions of
Delhi Rent Control Act
and there is no legal ground with your client to
terminate our tenancy‖.

49. Having regard to the nature of the documentary evidence, it is clear and points to the
plaintiff putting an end to the tenancy w.e.f. 30.06. 1995, through PW-1/3, which was
received and replied to by the defendant, this Court is of the opinion that the plaintiff has
proved this issue. Accordingly, it is held that the plaintiff validly terminated the tenancy
through notice dated 10.05.1995 Ex.PW-1/3.

ISSUE NOS.8 & 9

50. The plaintiff, to prove the claim for mesne profits, relied upon the certified copy of a
registered lease deed dated 19.01.1998 in respect of the premises being basement and ground
floor of N-4, GK-I Market, New Delhi. By that document, the owner/lessor had agreed to let
out the premises for a monthly rent of ` 3,75,000/- inclusive of house tax initially for a period
of three years till 19.12.2000 with the option to renew it subsequently, to the Oriental Bank of

CS(OS) No.246/2009 Page 24
Commerce. To establish that the lease had been validly executed, PW-2 - Pradeep Bhaskar,
Senior Manager of Oriental Bank of Commerce, which had leased the property deposed and
proved the copy of the lease deed as Ex.PW-2/1. He stated that the total area of the premises
1440 Sq. Ft. During the cross examination of the witness, the defendant attempted to
discredit him, suggesting that the lease deed had not been signed by him and, therefore, his
identification of the signatory i.e. another official, was unreliable. It was further urged on
behalf of the defendant that the plaintiff has not deposed herself and a power of attorney Shri
Vibhu Mushran had testified on her behalf. In the absence of positive testimony by the
plaintiff about the alleged damages and mesne profits, it was urged that the Court ought not to
take cognizance of the documentary materials and pass any orders in support of the plaintiff‟s
claim.

51. The plaintiff has alleged that the total area occupied by the tenant/ defendant was 4200
square feet. The defendant has produced a site plan Ex.DW-1/1. This has given the
measurement of the suit premises in the basement, ground, first floor and the terrace of the
property. Furthermore, PW-1, during the cross-examination, stated that the entire premises
were in the possession of defendant under a single tenancy in 1974. The defendant has not
denied that the area is 4200 square feet.

52. This court notices that the plaintiff has not led any further evidence to show the locational
advantage of the suit premises vis-à-vis N-4, GK-1 Market. In these circumstances, even
though the suit premises ex facie comprises an area larger than that of N-4, the Court cannot
assume that the rate of rent at least in the year 1995 would have been of the same. Having
regard to these circumstances, this Court is of the opinion that w.e.f. July, 1995, the monthly
rent for the premises was about ` 3.75 Lakhs.

53. Learned counsel for the defendant had urged that the plaintiff‟s claim for mesne profits
cannot be granted because w.e.f. 21.10.2005, it (the defendant) became a co-owner and the
rights of the erstwhile co-owner/co-plaintiff Sheopuri merged. The plaintiff being an
undivided co-owner could not claim mesne profits from the defendant who was in possession.
This argument may at once seem attractive. However, the ruling of the Supreme Court in
Indian Umbrella Mfg. Col. and Pramod Kumar Jaiswal considered together with
Section-109

and
111 (d)
of the Transfer of Property Act clarify that even a claim for possession against the
tenant who subsequently - during the pendency of the eviction proceedings - purchases an

CS(OS) No.246/2009 Page 25
undivided share in the rented property, would not render the relief of possession infructuous.
Such being the case, the defendant‟s rights merged with that of the deceased co-owner
Sheopuri on 21.10.2005. Till the date of his death, the said co-owner did not express any
desire to withdraw the claim for possession or mesne profits. No doubt, the sale deed
contains a commitment by the heir of S.N. Sheopuri to withdraw their claim in the suit (which
includes the claim for mesne profits). However, in the opinion of the Court, that would not in
any way prejudice or impinge upon the co-plaintiff‟s claim for 50% of the mesne profits from
the date of the termination of the tenancy till the merger of the interest i.e. on 21.10.2005. It
is accordingly held that the second plaintiff who continued with the suit is entitled to mesne
profits and damages from 1.7.1995 to 21.10.2005.

54. Having regard to the discussion in the preceding paragraph where the Court had
determined the mesne profits in respect of the suit property at ` 3.75 Lakhs, the Court is of
the opinion that the second plaintiff who has persisted with the suit and the claims outlined in
it, is entitled to a decree for mesne profits at the rate of ` 1,87,500/- (being 50% of the
amount determined by the Court, i.e., ` 3.75 Lakhs per month as mesne profits) from
1.7.1995 to 21.10.2005. The said amount works out to ` ` 2,30,61,000/- (Rupees two crores,
thirty lakhs and sixty one thousand only). The plaintiff is entitled to a decree for the said
amount.

55. The last issue is the one pertaining to relief. Although, the learned Additional District
Judge had, during the course of the proceedings, deleted the claim for possession while
amending the issues, the order recording the same also noticed that the surviving plaintiff no.2
had not amended the plaint seeking the relief of partition. Subsequently, the plaintiff did so
and the amendment was allowed. It was argued during the submissions - on behalf of the
plaintiff - that every claim for partition also carries within it, a claim for the relief of division
of the property jointly held by the co-owners. The learned counsel had relied upon the ruling
reported as
Shub Karan Bubna v. Sita Saran Bubna
, (2009) 9 SCC 689 and stated that the
Court would be within its rights to pass an appropriate decree for partition with the
consequential directions to separate the shares and hand over vacant possession of the same to
the respective co-owners.

In
Shub Karan Bubna
's case, the Supreme Court held as follows:

"6. A partition of a property can be only among those having a share or interest
in it. A person who does not have a share in such property cannot obviously be a

CS(OS) No.246/2009 Page 26
party to a partition. ―Separation of share‖ is a species of ―partition‖. When all co-
owners get separated, it is a partition. Separation of share(s) refers to a division
where only one or only a few among several co-owners/coparceners get separated,
and others continue to be joint or continue to hold the remaining property jointly
without division by metes and bounds. For example, where four brothers owning a
property divide it among themselves by metes and bounds, it is a partition. But if only
one brother wants to get his share separated and other three brothers continue to
remain joint, there is only a separation of the share of one brother.

7. In a suit for partition or separation of a share, the prayer is not only for
declaration of the plaintiff's share in the suit properties, but also division of his share
by metes and bounds. This involves three issues:

(i) whether the person seeking division has a share or interest in the suit
property/properties;

(ii) whether he is entitled to the relief of division and separate possession; and

(iii) how and in what manner, the property/properties should be divided by metes
and bounds?

In a suit for partition or separation of a share, the court at the first stage decides
whether the plaintiff has a share in the suit property and whether he is entitled to
division and separate possession. The decision on these two issues is exercise of a
judicial function and results in first stage decision termed as ―decree‖ under Order
20 Rule 18(1) and termed as ―preliminary decree‖ under Order 20 Rule 18(2) of the
Code. The consequential division by metes and bounds, considered to be a ministerial
or administrative act requiring the physical inspection, measurements, calculations
and considering various permutations/combinations/alternatives of division is
referred to the Collector under Rule 18(1) and is the subject-matter of the final
decree under Rule 18(2).

................. ........................

18.2. In regard to immovable properties (other than agricultural lands paying land
revenue), that is, buildings, plots, etc. or movable properties:

(i) where the court can conveniently and without further enquiry make the
division without the assistance of any Commissioner, or where parties agree upon the
manner of division, the court will pass a single decree comprising the preliminary
decree declaring the rights of several parties and also a final decree dividing the suit
properties by metes and bounds.

(ii) where the division by metes and bounds cannot be made without further
inquiry, the court will pass a preliminary decree declaring the rights of the parties
interested in the property and give further directions as may be required to effect the
division. In such cases, normally a Commissioner is appointed (usually an engineer,
draughtsman, architect, or lawyer) to physically examine the property to be divided
and suggest the manner of division. The court then hears the parties on the report,
and passes a final decree for division by metes and bounds.

The function of making a partition or separation according to the rights declared by the
preliminary decree (in regard to non-agricultural immovable properties and movables) is
entrusted to a Commissioner, as it involves inspection of the property and examination of
various alternatives with reference to practical utility and site conditions. When the

CS(OS) No.246/2009 Page 27
Commissioner gives his report as to the manner of division, the proposals contained in
the report are considered by the court; and after hearing objections to the report, if any,
the court passes a final decree whereby the relief sought in the suit is granted by
separating the property by metes and bounds. It is also possible that if the property is
incapable of proper division, the court may direct sale thereof and distribution of the
proceeds as per the shares declared.

18.3. As the declaration of rights or shares is only the first stage in a suit for
partition, a preliminary decree does not have the effect of disposing of the suit. The suit
continues to be pending until partition, that is, division by metes and bounds takes place
by passing a final decree. An application requesting the court to take necessary steps to
draw up a final decree effecting a division in terms of the preliminary decree, is neither
an application for execution (falling under
Article 136
of the
Limitation Act
) nor an
application seeking a fresh relief (falling under
Article 137
of the
Limitation Act
). It is
only a reminder to the court to do its duty to appoint a Commissioner, get a report, and
draw a final decree in the pending suit so that the suit is taken to its logical conclusion.‖

It is thus clear that in a suit where one of the reliefs claimed is partition, the court has the
power to direct division, by metes and bounds. So far as the objection of the defendants that
there is no issue for partition, and that the issue relating to possession was deleted (i.e.
original Issue No. 7) is concerned, the court is of the opinion that issues are framed, keeping
in mind what the parties have to prove, having regard to their respective pleadings. The relief
of possession was never given up, even though the court deleted it from the issues originally
framed. The relief of partition was added, through amendment, after the defendant‟s
objections were considered. In these circumstances, the parties have led their evidence, and
relied on all documentary materials, being fully aware of the real controversy between them.
It is too late in the day for the defendants to say that since the issue of possession was
deleted, and no issue pertaining to partition was framed, the court is precluded from
considering them. Trial in a civil court is not a proceeding, where procedural technicalities
would outweigh claims based on substantive legal rights, and justice. As long as the parties
are aware of the facts they have to prove and rebut, and so long as their pleadings contain the
basis of their allegations, and claims, the court would not be precluded from moulding the
relief, having regard to the conspectus of circumstances, and to meet the ends of justice.
Provisions like Order 7, Rule 7, and Order 14, Rule 5,
CPC
clothe the court with ample
power in this regard. The plaintiff, in this case, has confined the relief to a decree for
partition, in respect of her 50% undivided share in the suit property. She is entitled to it.

CS(OS) No.246/2009 Page 28

56. In view of the discussion in the preceding paragraphs, it is held that the plaintiff is
entitled to a preliminary decree for partition, of her half undivided share in the suit property.
Shri. Ravi Avasthi, Advocate (Mobile No. 9891207152) is hereby appointed as Local
Commissioner to visit the suit property, and after inspecting the same, and considering the
views of the plaintiff and defendants, furnish a report to the court as to the most convenient
manner in which to physically partition it (i.e. No.14, N- Block Market Greater Kailash-I,
New Delhi). The commissioner shall prepare the report and file the same in court, within
eight weeks. The commissioner shall be paid ` 75,000/- as fee, to be shared equally by the
parties. The plaintiff is also entitled to a decree for mesne profits, in the sum of
`2,30,61,000/- (Rupees two crores, thirty lakhs and sixty one thousand only) subject to
paying the requisite deficit court fee for the same. The suit shall be listed on 13th September,
2011 before the regular Bench as per roster allocation for consideration of the
commissioner‟s report, and further proceedings thereon.

57. A preliminary decree, in the above terms and decree for ` 2,30,61,000/- (Rupees two
crores, thirty lakhs and sixty one thousand only)- subject to payment of the prescribed court
fee, shall be drawn. The plaintiff is entitled to costs. The defendant‟s counter claim is
dismissed.

JULY 04, 2011 (S.RAVINDRA BHAT)
JUDGE

CS(OS) No.246/2009 Page 29