RAJASTHAN HIGH COURT

                   Ramanlal

                                           Vs.

                   LR's Of Rukmani

                   S.B. Civil Execution 2nd Appeal No. 20 of 1992
                                     (Prakash Tatia, J.)

                   04.08.2003

                   JUDGMENT

Prakash Tatia, J.

1. Heard learned counsel for the parties.

2. The facts of the case are that the plaintiff Ramanlal filed suit No. CO17/1965 in the
court of Munsif, Banswara against his tenant Harish Chandra, which was decreed for
arrears of rent but relief of eviction was refused as notice for eviction was not legal.

3. The landlord Ramanlal filed another Suit No. 20/1967 which was decreed on
14.11.1968. Ramanlal instituted execution petition wherein Dhurilal (who was father
of the decree-holder Ramanlal) resisted delivery of possession of the suit property in
execution of the decree obtained by plaintiff Raman Lal against Harish Chandra on the
ground that objector Dhuri Lal is owner of the property in dispute and he is in
possession of the shop in dispute and not bound by the decree passed in Suit No.
20/1967.

4. Faced with this objection, the plaintiff Raman Lal submitted petition under Order
21, Rule 97 Civil Procedure Code in the executing court. The executing court rejected
the objection of Dhuri Lal and directed to deliver possession of the property to the
decree holder by order dated 6.12.1977. Dhuri Lal preferred appeal against the order
dated 6.12.1977 but that was dismissed by the District Judge, Banswara on 14.3.1978.
It appears that Dhuri Lal expired, therefore, legal representatives of Dhuri Lal
preferred second appeal before this Court which was allowed by this Court by
judgment dated 24.11.1980 and matter was remanded to the executing court with the
direction to the executing court to permit parties to lead evidence and decide the
petition under Order 21 Rule 97 afresh.

5. The trial court, after remand from the High Court, framed the following three
issues:-

       (i) Whether Harish Chandra was the tenant of Ramanlal or of Dhurilal ?

       (ii) Whether Ramanlal (decree-holder) is the sole owner of the disputed
       premises ?

       (iii) Whether Ramanlal let out the property in dispute as member of the
       undivided Hindu family to Harish Chandra and Harish Chandra handed over the
       possession of the property to head of the family Dhurilal (father of the decree
       holler and objector in execution petition), therefore, the decree stand satisfied
       and possession warrant cannot be issued in the execution petition by the decree
       holder Ramanlal ?

6. The executing court, after giving opportunity to lead evidence to the parties,
recorded the finding that the suit property was let out by Ramanlal, plaintiff to Harish
Chandra, defendant and not by Dhurilal, objector. In the issue No. 2, the executing
court found that the suit property is not the sole ownership property of Ramanlal,
plaintiff. In issue No. 3, the executing court held that since the possession of the suit
property has been handed over to Dhurilal (father of decree-holder), i.e. the head of
the family, therefore, Dhurilal has right to object against issuance of possession
warrant. On these reasons, the executing court dismissed the execution petition filed
by the decree-holder Ramanlal under Order 21 Rule 97 Civil Procedure Code by order
dated 20.7.1982.

7. Aggrieved against the order of the executing court dated 20.7.1982, Ramanlal
preferred appeal, which was registered as Civil Appeal No. 7/82. The first appellate
court confirmed the finding of the executing court recorded on issue No. 1 and,
therefore, this is concurrent finding of fact that the suit premises was let out by
Ramanlal to Harish Chandra and not by Dhurilal. This is also concurrent finding of
fact that the property in dispute is undivided Hindu family property. However, while
considering the finding on issue No. 3, the appellate court also found that there is no
evidence available on record by which it can be said that Ramanlal let out the property
to the tenant Harish Chandra in the capacity of member of the joint Hindu family and
on behalf of joint Hindu family. However, just after this, the first appellate court
observed that property in dispute is joint Hindu family property and despite the fact
that property was let out by Ramanlal, it will be deemed that property was let out for
the benefit of joint Hindu family of the decree- holder including the objector, Dhurilal.
In these circumstances, the decree- holder Ramanlal preferred this second appeal
against the judgment and decree of the trial court dated 17.11.1990. However, it may
be relevant to mention here that admittedly a suit for partition for the joint Hindu
family property was filed and presently the appeals are pending against the decree for
partition. Therefore, at this stage, it is to be presumed that the property in dispute is
yet to be partitioned by meets and bounds by final decree.

8. According to the learned counsel for the appellant, in view of the finding of the
courts below that the property in dispute was let out to Harish Chandra by Ramanlal
and this letting out was not on behalf of the joint Hindu family and in view of the
finding of the fact that the property was let out by Ramanlal in his personal capacity,
the judgment-debtor or any person claiming through him, is bound to restore the
possession to the landlord only and none of the persons, namely, tenant or any person
claiming through him or even a person in the capacity of co-sharer but getting
possession through the tenant cannot have any right to keep possession of the property
except for the purpose to deliver the possession of the property to the landlord. It is
also submitted that even a co-sharer, if enters into possession of the property through a
tenant, still he cannot take any benefit of his title to protect possession of the property.

9. Learned counsel for the respondent vehemently submitted that in view of the
concurrent findings of facts of both the courts below that the property was handed over
to one of the co-sharer, that too to the eldest member of the family and furthermore, to
the father of the decree-holder by the tenant, then it is a delivery of possession to the
owner of the property and Dhuri Lal as owner of the property has right to protect his
possession on the basis of his title to the property. Otherwise also, decree is against
tenant only and not against Dhuri Lal, therefore, neither Dhuri Lal is bound by the
decree nor he can be evicted in execution of the decree which is not against him. It is
also submitted that in view of the law laid down by the Hon'ble Supreme Court that no
co-owner can claim adverse possession in the property as the possession of one of the
co-owners is possession on behalf of co-owners, therefore, even if the premises was let
out by Ramanlal, still possession has been redelivered to one of the co-owners who is
landlord in view of the definition of the landlord given in sub-section (3) of Section 3.
Therefore, if the possession of the property has been handed over to Dhurilal, then it is
a valid discharge of obligation of tenant and nothing survives in the execution.
Learned counsel for the respondent has placed reliance on the judgment of the Hon'ble
Supreme Court in Karbalai Begun v. Mohd. Sayeed and another.1

10. I have considered the facts of the case and the submissions of the learned Senior
Advocate Shri D.S. Shishodia and learned counsel Shri D.R. Bhandari. It may be
worthwhile to mention here that the Hon'ble Supreme Court examined the same
controversy in its recent decision in detail which is involved in this case is the case of
T. Lakshmipathi and ors. v. P. Nithyananda Reddy & ors., 2 wherein Hon'ble Supreme
Court, after narrating facts in detail and after considering the various earlier judgments
of the Hon'ble Supreme Court held as under :-

       "Where any property is held by several co-owners, each co-owner has interest
       in every inch of common property, but his interest is qualified and limited by
       similar interest of the other co-owners. One co-owner cannot take exclusive
       possession of the property nor commit an act of waste, ouster or illegitimate
       use, and if he does so he may be restrained by an injunction."

The above settled legal position is having one exception and is recognized by the same
above judgment of the Hon'ble Supreme Court. It will be relevant to quote the relevant
portion from the judgment of the Hon'ble Supreme Court :-

       "A co-owner may, by an arrangement, express or implied, with his other co-
       owners, possess and enjoy any property exclusively. Such a co-owner can also
       protect his possession against the other co-owners and if he is dispossessed by
       the latter, he can recover exclusive possession."

In view of the law laid down by the Hon'ble Supreme Court referred above, now it is
settled that a co-owner may, by an arrangement, express or implied, with other co-
owners, possess and enjoy the property exclusively. The Hon'ble Supreme Court also
held that such a co-owner in possession of joint family property exclusively by
arrangement can protect his possession against other co-owners. Not only this, but if
he is dispossessed, he can recover the exclusive possession from the co-owner. This
concept recognizes the exclusive possession of a co-owner irrespective of unity of the
title to the property and despite the fact of deemed joint possession for certain
purposes and despite fact of being member of co-owners' fraternity.

11. This preposition was applied in a matter where the property is let out or possession
is delivered to third party by one of the co-sharers exclusively by arrangement with
other co-sharer express or implied. As held by the Hon'ble Supreme Court in above
referred case, such co-sharer, not only can protect his exclusive possession in joint
family property but even if dispossessed by other co-sharers, he can recover
possession of the property from other co- sharer. Same principle can be applied in
cases where one of the co-sharers enjoying exclusive possession of the property, puts
in possession another person in any manner, the co-sharer in possession keeps his
right to seek possession from that person who was put in possession by the said co-
sharer in exclusive possession. Person in occupation in such circumstances is entitled
to protect his possession as per the terms only under which he was put in possession
by the said co-sharer. Unless contract contrary between such co- sharer and the person
to whom the possession was given, the person in possession is bound to deliver
possession to the said co-sharer only and all persons claiming possession through such
person in possession cannot claim better or contrary right than the right which the
original person in possession had irrespective of the fact that such person put in
possession of the property handed over possession of the property to other co-sharer
with the person who was in exclusive possession of the property as per arrangement
(express or implied) with other co-sharers. The reason is that once right to keep
possession exclusively of a co-sharer is recognized, it is recognized for all purposes
and cannot be destroyed simply because said co-sharer is keeping possession through
someone else. Other co-sharer can get possession of the property in accordance with
law by following procedure of law by which co- sharer can get the possession of
property from other co-sharer and when third party is put in possession by impleading
that party as party in the proceeding for recovery of possession.

12. The tenant admitted himself to be a tenant of the co-sharer and when decree for
eviction against that tenant was resisted by some persons, as a co-owner or by virtue
of sale in their favor after becoming the co-owner, the Hon'ble Supreme Court held
that those persons have no right to resist the decree for possession against the tenant
on the principle that the tenant is under legal obligation to restore the possession of the
premises to the landlord. The Hon'ble Supreme Court held as under :-

       ".......by operation of Section 116 of by Evidence Act, they were estopped from
       challenging or denying the ownership of respondent No. 1 and his rights in the
       tenancy premises. As held in Vashu Deo v. Balkishan, the rule of estoppel
       between landlord and tenant continued and unless the tenant has surrendered
       possession to the landlord. The estoppel would cease to operate only on the
       tenant openly restoring possession by surrender to the landlord."

13. In view of the reasons given in the judgment in T. Lakshmipathi's case (supra), it
is clear that the judgments of both the courts below dated 20.7.1992 and 17.11.1990
cannot be allowed to stand. In this case, there is specific finding of both the courts
below that property in dispute was let out by the decree-holder Ramanlal in his own
personal capacity. In view of the decree, it can be said that Harish Chandra (tenant) or
any person claiming through Harish Chandra (tenant) cannot resist the decree for
eviction against the tenant even if he is one of the co-sharers and may be one of the
members of the joint Hindu family. It will be worthwhile to mention here that in
family dispute, winning over the tenant for getting the possession of the property
rented out by other is not unknown, rather it is becoming more common with the
change of values. By this one cannot be permitted to prompt the tenant to indulge in
such tactics to either protect his possession against the lawful right of the person who
put him in possession or to oblige rival claimant to the person by whose indulgence
only he occupied the property. The tenant is under legal obligation to hand over the
possession of the property to his landlord.

14. In view of the above reasoning given by the courts below on assumption that since
the property in dispute is joint Hindu family property and, therefore, letting out of the
property by Ramanlal is to be treated as on behalf of the joint Hindu family is contrary
to law as well is self contradictory inasmuch as that the courts below, while deciding
issue No. 3, specifically recorded finding that the property was let out by Ramanlal
only. The finding recorded by both the courts below on issue No. 3, so far as it relates
that property was deemed to have been let out by Ramanlal on behalf of the joint
Hindu family, hence deserves to be set aside.

15. In view of the above reasons, the appeal of the appellant is allowed. The finding of
both the courts below on issue No. 3 in the judgments dated 20.7.1982 and 17.11.1990
recognizing the right of Dhurilal or his successor to protect their possession and resist
the warrant of possession in the execution petition filed by Ramanlal, decree-holder is
set aside.

16. It appears that the executing court dismissed the execution petition as a whole by
the above judgments and did not permit to proceed for recovery of arrears of rent.
Therefore, a revision petition was preferred by the decree- holder, which was
registered as S.B. Civil Revision Petition No. 39/1983. The said revision petition was
decided by this Court by order dated 28.4.1993 holding that since the question of
execution about the arrears of recovery of the rent is also under challenge in S.B. Civil
Second Appeal No. 20/1992, therefore, the revision petition has become in fructuous.
In view of the decision of this Court delivered in revision petition No. 30/1983, this
Court can look into this aspect of execution about the recovery of arrears of rent as
well as the relief of recovery of the future rent in pursuance of the decree. Since, it has
been held that the decree-holder is entitled to possession not only from the tenant but
from the objector Dhurilal, therefore, the plea that the rent was paid to Dhurilal cannot
be accepted. Therefore, the decree-holder can execute the decree for recovery of rent
in terms of the decree The application for recalling the order dated 28.4.1992 is
disposed of as the controversy is decided in the appeal.

17. In the results S.B. Civil Execution Second Appeal No. 20/1992 is allowed and the
S.B. Civil Misc. Misc. Application No. 114/1997 is disposed of. No order as to cost.

Appeal allowed.

Cases Referred.

1. AIR 1981 SC 77

2. 2003(3) R.C.R. (Civil) 305 : 2003(2) R.C.R.(Rent) 117 : (2003)5 SCC 150