Hameeda Begam (Smt.) vs Smt. Champabai Jam and Others

Dipak Misra, J.

In this revision preferred u/s 23-E of the M.P. Accommodation Control Act, 1961 (for brevity ''the Act''), assail is to the order passed by the Rent Controlling Authority in Case No. 2A/90(7) 97-98 whereby the said authority has rejected the application preferred by the revisionist u/s 23-A of the Act.

The civil revision was listed for hearing before the learned Single Judge who thought it seemly to refer the matter to be adjudicated by a larger Bench and accordingly he recommended for constituting larger Bench as envisaged under Rule 9(1) of the M.P. High Court Rules and Orders. Accordingly the revision has been placed before us. We may at the outset state that though the entire case has been referred, the learned Single Judge has framed questions to be answered by a larger Bench and in view of that we think it appropriate to reproduce the questions which form the part of the order passed by the learned Single Judge :

Whether a co-owner (co-landlord) can file a suit for eviction against the tenant even if the other co-owner objects to the eviction of the tenant.

Whether the tenant who has purchased the undivided share of one of the co-owners is liable to eviction at the instance of other co-owners and then it is for him to bring a suit for partition and separate possession.

Whether the decision in the second appeal on the aforesaid pure questions of law operates as res judicata in the subsequent eviction proceeding u/s 23-A of the Act on a different cause of action {bona fide need of the son of the applicant).

As the specific questions of law have been referred, we are of the considered view that the same are to be answered and thereafter matter is to be listed before the learned Single Judge for final adjudication. We say so because of the nature of reference. Before we advert to the aforesaid question, we think it condign to refer to the factual score. Four persons, namely, Barkalullah, Amna Bi, Jalaluddin and Hamida Bi had granted lease of a building known as "Kudrat Manzil" to one Shikar Chand Jain by registered lease deed dated 1.5.1968. Barkatullah left for heavenly abode leaving behind his legal heirs, five in number. His daughter Sona Bi and one of his sons, Hafizullah the leassors initiated civil action forming the subject matter of C.S. No. 147-A/88 against: the original tenant seeking his eviction on numerous grounds as envisaged u/s 12(1) of the Act. The names of lessors other than Hameeda Bi and Hafizullah were deleted from the array of Plaintiff''s. The original tenant breathed his last during the pendency of the suit. The legal representatives were brought on record. Inder Kumar, one of the legal heirs, purchased the share of Sona Bi, one of the heirs of co-lessor Barkatullah bv registered sale deed dated 20.9.1982.

The ground for eviction u/s 12(1)(f) of the Act was accepted to have been established, but the suit was dismissed on the backdrop that the suit for eviction at the instance of two co-landlords was not maintainable as a portion of undivided house had been purchased by Inder Kumar from Sona Bi: Eventually, the controversy traveled to this Court in S.A. No. 813/95 wherein the learned Single Judge came io hold that the suit for eviction was not maintainable against the Defendants as one of the heirs of the original tenant had purchased the undivided share of one of the heirs of one co-lessor. The ieamed Single Judge took note of the fact that there was objection by other co-owners in the matters pertaining to eviction. The learned Single Judge while deciding the Second Appeal did not follow the view laid down by the Full Bench of Patna High Court rendered in the case Sharfuddin and Others Vs. Bibi Khatija and Another, and placed reliance on the decision rendered in the case of Sk. Sattar Sk. Mohd. Choudhari Vs. Gundappa AMabadas Bukate, and ultimately dismissed the second appeal.

After She decision in second appeal was rendered, Hameeda Begum who was the Plainiff No. 2 filed an application purported to be one u/s 23-A before the Rent Controlling Authority seeking eviction of the tenant on the ground that suit for accommodation is required bona fide by her son for carrying on the business of a cycle shop as they have no other reasonable/suitable non-residential accommodation of their own for the said purpose. It was pleaded that, she being a widow came in the special category as defined u/s 23-J of the Act. Before the Rent Controlling Authority, Authority, an objection was raised with regard to the maintainability of ihe proceeding. In view of the judgment rendered in the Second Appeal and the objection raised, the Rent Controlling Authority refused to entertain the application instituted u/s 23-A of the Act. The aforesaid order was the subject matter of assail in the civil revision.

When the matter was listed before the learned Single Judge it was contended that the lease still subsists and the non-applicants are claiming as tenants and seeking statutory protection under the Act and at the same time are advancing ihe claim of an owner which they cannot claim and there is no merger of rights. It was also putforth before the learned Single Judge that transfer of a part of undivided share of one of the heirs does not entitle the transferee to claim, as lease has merged into his ownership right and, therefore, the view of the Bench of this Court in second appeal referred to above is on the pure question of law is erroneous and does not operate as res judicata. In addition to the aforesaid, it was propounded that a co-lessor is not bound to effect partition and maintain her application for eviction without partition. The learned Single Judge refencd to the decision rendered in the case of Sharfuddin (supra) and eventually in paragraph 8 expressed the view that the decision of the Full Bench in the case of Harbans Singh v. Smt. Margaret 1990 JLJ 97 : 1990 MPLJ 112 is an Obiter as the question did not saliently and directly arose therein. The learned Single Judge was of the view that the question directly arose in the Patna case. The learned Single Judge also referred to the decision rendered by the Apex Court in the case Badri Narain Jha and Others Vs. Rameshwar Dayal Singh and Others, and framed the questions which have been referred to hereinabove.

When the matter was listed before us, looking to the interesting and peculiar aspects of the case we sought the assistance of Mr. Ravish Agrawal, learned Senior Counsel who agreed to act as a friend of the Court. Thus, we have heard Mr. A. Usmani and Mr. A.M. Hafizullah, learned Counsel for the Petitioner, Mr. R.P. Jain, Advocate with Mr, Virendra Verma, Advocate for the non-applicants and Mr. Ravish Agrawal, learned Senior Counsel as the amicus curiae.

Mr. A. Usmani and Mr. Hafizuilah, learned Counsel tor the Petitioner submitted that there is no extinction of lease if one of the several lessee purchases only a part of the lessor''s interest. It is further putforth by them that exclusive owner can maintain suit for eviction against the tenant and the co-owner who raises an objection should go for partition. It was further urged that if the tenant raises objection to the right, title and interest of the landlord, he is estopped to do so u/s 116 of the Indian Evidence Act and the only solution for such a situation is that he must handover the possession and claim title by filing a suit for partition. The learned Counsel referred to Section 111(g) of the Transfer of Properties Act and laid immense emphasis that tenant has no right on any count and is bound in iaw to handover the possession. Reference has been made to Section 44 of the Transfer of Property Act. In this context, the learned Counsel for the Petitioner have drawn inspiration from the decisions rendered in the cases of Badri Narain Jha and Others Vs. Rameshwar Dayal Singh and Others, ; Sk. Sattar Sk. Mohd. Choudhari Vs. Gundappa AMabadas Bukate, ; Sri Ram Pasricha Vs. Jagannath and Others, , Pal Singh Vs. Sunder Singh (Dead) by Lrs. and Others, ; Perumal Nadar (Dead) by Lrs. Vs. Ponnuswami, , Dhannalal Vs. Kalawatibai and Others, ; B.P. Pathak Vs. Dr. Riyazuddin and Others, ; Dorab Cawasji Warden Vs. Coomi Sorab Warden and others, ; Ashim Ranjan Das Vs. Sm. Bimla Ghosh and others, and Baldev Singh Vs. Smt. Darshani Devi and Another,

To bolster on the second count, the learned Counsel for the Petitioner placed heavy reliance on the decisions rendered in the cases of Gautam Paid v. Debirani Paul AIR 2001 SC 61 Ramdayal Vs. Manaklal, and H.C. Pandey Vs. G.C. Paul, .

As far as the question of res judicata is concerned, it was submitted by the learned Counsel for the Petitioner that the decision rendered in the second appeal does not operate as res judicata on two counts, namely, that it does not lay down the law correctly and that the bona fide need which was putforth by the Plaintiff''s in the suit lie in a different compartment that the bona fide need which was advanced by the widow before the Rent Controlling Authority and as there is sea change in regard to cause of action qua bona fide requirement, the proceedings before the Rent Controlling Authority was maintainable. To buttress the aforesaid submission reliance has been placed on Sajjadanashin Sayed Md. B.E.Edr. (D) By Lrs. Vs. Musa Dadabhai Ummer and Others, . Pritam Kaur v. State of Pepsu AIR 1963 PH 14 and P.N. Govindan Vs. Abdul Kari Subaida Beevi, .

Mr. Jain, learned Counsel appearing for the non-applicant has submitted that the judgment pronounced in the Second Appeal operates as res judicata as the same has been delivered/rendered by taking into consideration the controversy between the parties and this Court being a co-ordinate Court cannot sit over it in appeal. To reinforce the aforesaid submission he has placed reliance on Mohanlal Goenka Vs. Benoy Krishna Mukherjee and Others, , He has also commended to the decision rendered in the case of Daryao and Others Vs. The State of U.P. and Others, . Reliance has also been laid on State of West Bengal v. Hemant Kumar AIR 1966 SC 106 With regard to the co-owner objection, it is contended by him that the decision rendered by this Court in Harbaus Singh''s case (supra) is not an obiter but infact authenticate pronouncement in regard to the law which has been dealt with. It is also canvassed that the law has been put to rest in the case of Dhannalal (supra) that if other co-owners object, suit for eviction cannot lie.

Replying to the limb who would intimate action it is urged by him that non-applicant is in possession and the question that has been framed is in broad language and it can be answered by stating that any person who seeks exclusive possession has to file a suit for partition.

Mr. Ravish Agrawal, learned Senior Counsel and friend of the Court contended that if question No. 3 is answered, the other two questions need not be answered as that would become absolutely academic. It is urged by him that assuming for the sake of argument, the judgment rendered in the second appeal is wholly incorrect yet the parties cannot wriggle out of it without assailing the same in appeal before the superior Court. The learned senior counsel has submitted that a decision may not be binding precedent but the doctrine of res judicata gets attracted in respect of the parties to the dispute, and there is no escape from that. As far as other litigants are concerned, they may question the correctness or soundness of the same. While so submitting, Mr. Agrawal has further canvassed that the controversy has been put to rest in Dorab Cawaji Warden (supra) which has been followed by the Full Bench of Jammu and Kashmir in the case of Abdul Salam Vs. State of Jammu and Kashmir and Others, . With regard to the first issue under reference, learned senior counsel argued that the decision rendered in the case of Harbans Singh (supra) by no stretch of imagination can be regarded as an obiter as the Full Bench specifically and precisely has stated the law. It is also contended by him that law laid down in the case of Badri Narain (supra) does not lay down the law correctly, in view of the latter judgments of the Apex Court rendered in the cases of Mohar Singh v. Devicharan 1988 SC 1365 SK Sattar SK Modh. Choudhari (supra) and Dhannalal (supra). He has also drawn inspiration from the case of Nalakath Sainuddin Vs. Koorikadan Sulaiman, to highlight the concept of merger. Reliance has also been placed on the decision rendered in the case of Abdul Alim v. SK Jamaluddin (1998) 9 SCC 683] to build the edifice that a tenant purchaser earns the status of co-owner and an application for eviction does not lie till partition is effected. It is also propounded by him that a co-owner has the veto power and this has been so held in the case of B.P. Pathak (supra). It is also urged that a tenant who has purchased the property from the co-owner is not required to surrender as no splitting of tenancy is permitted untill Rent Controlling Authority so permits and, therefore, who seeks eviction and exclusive possession has to file a suit for partition.

Though Mr. Ravish Agrawal has laid immense emphasis that the issue No. 3 should be alone decided and if it is answered in favour of the non-applicant then other issues need not be touched upon, yet for the sake of completeness we want to deal with all the questions under reference. However, we would like to proceed not in the manner as the learned Single Judge has framed the questions but we will deviate a little by adverting to the question No. 3 as the first question, the same being the spinal one to the controversv. The issue involved is whether the judgment rendered in Second Appeal operates as rev judicata in the subsequent eviction proceeding instituted u/s 23-A of the Act. To answer the said question, we think it appropriate to reler to the certain aspects which find place in the decision rendered is Second Appeal. It is not in dispute that one Hafizullah and Hamida Bi Wife of Abdul were the Plaintiff''s. The learned Single Judge after referring to the findings of the trial Court as well as the first appellate Court, came to hold that the sale deed executed by Sona Bi on 20.9.1982 Ex. D-13 in the said proceedings was a valid document. This finding was reached upon reiving on the judgment rendered earlier in S.A. No. 48/88. The learned Single Judge expressed the view that the decision of the Bench having co-ordinate jurisdiction was bindine on him. Thereafter, the learned Single Judge dealt with the various decisions and eventually distinguished the decision rendered in the case of Sharfuddin (supra) and thereafter referred to the decision rendered in the case Kanta Goel Vs. B.P. Pathak and Others, As perceivable, the learned Single Judge, ultimately in paragraphs 24 and 25 expressed the view as under :

Thus, it is clear from the aforesaid decision unless a portion of reversion is assigned by virtue of transfer or partition to a co-owner, he cannot unilaterally file a suit for eviction from a portion of the reversion. He can file a suit for and on behalf of all the owners in respect of entire demise with express or implied consent of the owners. However, when tenant purchased 1/2 portion of the shop allotted to brother of the Appellant, during the pendency of appeal before the Supreme Court, the Supreme Court came io the following conclusion in paragraph 40 at page 385 :

We have already indicated above that during the pendency of the appeal in this Court the Respondent has purchased the remaining portion of the shop, which had fallen in the share of the Appellants'' brother. This portion measures 23'' x 7-1/2''. It has been purchased from Smt. Zubedabi, wife of the appellant''s brother, in whose share the said portion had fallen on partition, and who had gifted that portion to his wife. The copy of the sale deed has been filed in this Court, to which no objection has been taken by the counsel for the Respondent. The Respondent does not deny the transaction. He having purchased the remaining portion of the shop, became the owner thereof and his interest as a tenant merged in his right as an owner of that portion. He, therefore, remained a tenant only in respect of the disputed portion and consequently the suit filed by the Appellant in respect of that portion was clearly maintainable.

It is obvious that the Plaintiff''s face a similar position here with a rider that the property is not partitioned. The Defendant No. 5 has become a co-owner, albeit., of undivided portion of the house. How-can he be evicted ? His share qua sole owner has not been specified. It would be most unjust and inequitable to throw out a co-owner from the possession of the suit accommodation merely because as a tenant he had purchased the share of a co-owner. His legal right to retain possession till partition qua co-owner cannot be whittled down. The Supreme Court case - Sarvinder Singh v. Dalip Singh and Ors., reported in 1977(1) MPL.T 324 (supra) relied upon by the Appellants, is not applicable to the facts of this case. It is not necessary to deal with other decisions cited by the learned Counsel for the Appellants in view of the decision in Sk. Sattar Sk. Mohd. Choudhari Vs. Gundappa AMabadas Bukate, In this case, the cases of Mohar Singh (Dead) by Lrs. Vs. Devi Charan and Others, and Badri Narain Jha and Others Vs. Rameshwar Dayal Singh and Others, were considered and distinguished.

14, Thus, the learned Single Judge has dealt with the status of the tenant who purchased partial right in respect of tenanted premises from one of the co-owners and in that backdrop came to hold that a case for eviction at the instance of the other co-owners was not maintainable against a co-owner. In our considered view this is a position dealing with the concept of status in contradistinction to the concept of bona fide need. It is also pertinent 10 mention here than the learned Single Judge has also upheld the bona fide need put forth by the landlord. The status of the landlord does not change unless a different situation crops up by virtue of which status changes. It is submitted by Mr. Usmani as well as Mr. Hafizullah that such decision cannot bind the widow who is a privileged land lady as defined u/s 23-J of the Act. The citations which have been relied upon by the learned Counsel for the Petitioner, in our considered view, are rciatable to a different realm altogether. In most of the cases, it has been held that the finding must be one disposing of the matter directly and it should be substantially in issue, otherwise the decision cannot operate as res judicata. In some of the cited pronouncement, it has been laid down that if an issue is collaterally or incidentally decided it would be distinct from being directly and substantially in issue and hence, it cannot operate res judicata. The aforesaid decisions in our considered view are of no avail to the Petitioner inasmuch as the decision in second appeal has been delivered after deeply dwelling upon the facet that the suit was not maintainable on the ground that a co-owner cannot maintain the suit for eviction against Anr. co-owner. In this context we may profitably refer to the decision in the case of State of M.P. v. Mulam Chandi1973 JLJ 489 : 1973 MPLJ 832] In the aforesaid case in paragraph 25 it has been held as under :

As between a decision which operates as res judicata and a decision which is binding as a precedent but not res judicata, the former must prevail. It is here that the learned trial Judge erred. Moreover, the Letters Petent Appeal decision can be supported by the decision in Union of India v. N.K. Pvt. Ltd.

A distinction has been drawn between the res judicata and judicial precedent, and it has been held that res judicata prevails over binding judicial precedent. The learned Single Judge in paragraph 26 enumerated the conclusions which we profitably reproduce :

The above discussion leads to the following conclusions :

(1) The bar of res judicata operates also as between two stages in the same litigation.

(2) A decision in a writ proceeding operates as res judicata in a subsequent suit based on the same cause of action between the same panics.

(3) The principle of res judicata is based on the need of giving finality to a judicial decision. Once a res judicata, it shall not be adjudged again. The underlying principle is that the parties should not be vexed twice over.

(4) Even where Section 11, Civil Procedure Code, does not apply, the principle of res judicata may apply for the purposes of achieving finality in litigation.

(5) A question of law is as much in issue as a question of fact. The expression "matter is issue" is not confined to issues of fact; it includes issues of law as well.

(6) But, for the purposes of the rule of res judicata, the issue of law must not be an abstract question of law, it must be one relating to its applicability or non-applicability to the facts and circumstances of the particular case.

(7) Even an erroneous decision on an issue of law operates as res judicata. Exceptions to this rule are (i) where by a subsequent legislation, the law, as applied in the earlier decision, is altered. However, a different interpretation of the law as given in a subsequent binding precedent is not the same thing as altering the law. (ii) Where the question of law is one purely relating to the jurisdiction of the Court, (iii) Where the decision of the Court sanctions something which is illegal, illegality'' in this context refers to an act prohibited by law.

(8) As between a decision which operates as res judicata and Anr. which is a binding precedent, though not res judicata, the former prevails.

(9) A decision of the Supreme Court is binding on all Courts by virtue of Article 141 of the Constitution, but it is not the same thing as to say that a decision of the Supreme Court alters the law. Article 141 does not confer on the Supreme Court any legislative function. The Supreme Court declares the law; it does not alter the existing law, or make a new law.

In this context, we may also profitably refer to the decision cited by Mr. Jain rendered in the case of Mohanlal Geoenka (supra). In the aforesaid case, the Apex Court clearly held that even an erroneous decision on a question of law operates as res judicata between the parties to it. Their Lordships further proceeded to state that a judicial decision has no bearing upon the question whether or not it operate as res judicata. In this context, we may profitably refer to the decision rendered in the case of Abdul Salam (supra) wherein Dr. Anand (as His Lordship then was) expressed the view in paras 10 and 13 as under:

From a review of the aforesaid judgment it stands established that in any case in which it is found that the matter directly and substantially in issue had been directly and substantially in issue in a former suit or writ petition and has been heard and finally decided by a competent Court principles of res judicata cannot be ignored. Even an erroneous judgment is nonetheless a binding judgment inter parties, so long as it is not reviewed or reversed bv a higher Court. Once a final judgment has been obtained, the same matter cannot be canvassed anew in Anr. action. This is the core of the rule, the Court is not concerned with the correctness or otherwise of the earlier judgment.

The matter in issue, if it is purely one of fact decided in the earlier proceeding by a competent Court must in a subsequent litigation between the same parties be regarded as finally decided and cannot be reopened. A mixed question of law and fact, for the same reasons, cannot be considered anew in any subsequent proceedings. There would be no difference where the decision is on a question of law either, if the conditions for the application of Section 11 CPC are satisfied, except in cases where the question decided in the previous cause is a question of law and relates to the jurisdiction of the Court or the lack of it or the law has been subsequently changed by the legislature. Doctrine of res judicata and general principle emanating therefrom must be resorted to secure and freeze the issue once debated and finally decided and the principle of res judicata cannot be ignored merely on the plea that the earlier judgment was wrong or erroneous.

Therefore, I am of the opinion, that a judgment inter parties of a competent Court in a previous writ petition would operate as res judicata in a subsequent suit between the same parties, where the issues directly involved in the two proceedings are the same, irrespective of the fact whether or not the decision in the earlier writ petition was founded on a view contrary to the one subsequently expressed by the Supreme Court in a different case as is canvassed by Mr. Thakur. I would accordingly, answer the second question in the affirmative and hold that the subsequent suit filed by the Appellant was barred by the principles of res judicata. The judgment under appeal has been correctly decided and calls for no interference. This appeal must accordingly fail.

Mr. Hafizullah, however, has drawn inspiration from the decision rendered in the case of Nanalal Girdharlal and Another Vs. Gulamnabi Jamalbhai Motorwala and Others, and submitted that in paragraph 48 of the aforesaid decision, the Court has dealt with the doctrine of res judicata and if the decision laid down therein is understood in proper perspective, the judgment rendered in the second appeal would not be res judicata. We have carefully perused the aforesaid decision. In our considered view the same is absolutely distinguishable. In the present case, the decision was rendered upon consideration of the substantial issues and the law as has been referred to but did not deal with the issues in a collateral and incidental manner. Mr. Hafizullah has placed heavy reliance on the decision rendered in the case of Sajjadanashin Sayed (supra). In the aforesaid case in paragraph 24 the Apex Court dealt with the factum whether the issue decided was incidental or auxiliary or collateral to the main issue and eventually in para 26 held as under :

We have gone into the above aspects in some detail so that when a question arises before the Courts as to whether an issue was earlier decided only incidentally or collaterally, the Courts could deal with the question as a matter of legal principle rather than on vague grounds.

In the aforesaid decision, their Lordships have reiterated the legal position and dealt with the role of the adjudicating Courts, but that does not improve the situation as far as the present revisionist is concerned. That being the position, we have no hesitation in our mind in holding that the case of Mulam Chand (supra) and Sardarimal v. Narayanlal 1980 JLJ 110 : 1981 MPLJ 76 would be squarely applicable and accordingly we conclude and hold that the judgment passed in second appeal operates res judicata.

Now we shall proceed to revert to the first question. In this context we may profitably refer to the decision rendered in the case of Harbans Singh (supra). The Full Bench in paragraph 9 formulated the question and proceeded to deal with the same. To appreciate the scenario in proper perspective, we think it appropriate to reproduce paragraph 9 in entirety :

In the instant case, the question formulated for consideration for the sake of convenience, may further be divided into twin questions as -

(i) Whether the widow/landlady who is a co-owner of the premises with Ors. , alone can initiate proceedings for eviction of the tenant-applicant since she is not the sole owner of the premises but a sharer along with her sons, the property having been inherited from her late husband who originally owned the property; and

(ii) Whether the widow/non-applicant who alone falls in the special category of landlords as defined in Section 23-J(iii) can seek an order for possession of the tenanted premi ses on the ground of her own bona fide need for residence and that of her married sons who do not fall within the special category of landlords as defined in Section 23-J. In connection with the first part of the question, it may be stated that some of the decision of the highest Court of Land provide a complete answer to the problem. In Sri Ram Pasricha v. Jagannath (1974) SCC 184 relying on certain precedents and a passage from "Salmond on Jurisprudence" it was observed that under the general law, in a suit between landlord and tenant, the question of title to the leased property is irrelevant and, therefore, it is inconceivable to throw out the suit on account of non-impleading of other co-owners as such. Further, it has been held in the said report that jurisprudentially it is not correct to say that a co-owner of a property is not its owner. He owns every part of the composite property alongwith Ors. and it cannot be said that he is only a part-owner or a fractional owner of the property. This position will change only when partition takes place. This view was accepted and again reiterated by Supreme Court in Kanta Goel Vs. B.P. Pathak and Others, wherein it was held that a co-owner is as much an owner of the entire property as any sole owner and the absence of other co-owners will not disentitle a co-owner from maintaining an action for eviction when the other co-owners do not object to the same. This view was followed in a recent decision by the Supreme Court in Pal Singh v. Shri Sunder Singh (1989) 1 SVLR (C) 54. This being the position of law, it has to be held that the widow/non-applicant, who is a co-owner/landlady of the premises with some Ors. , can initiate eviction proceedings against the tenant in the absence of other co-owners if they do not object for the same.

It is submitted by Mr. Usmani and Mr. Hafizullah that the Full Bench has not properly appreciated the ratio laid down in the case of Kamta Goel (supra). They have supported the observation of the learned Single Judge that it appears to an obiter. On a close reading of the paragraph, we are of the considered opinion that the Full Bench has referred to the two decisions of the Apex Court and recorded a finding therein. There cannot be a scintilla of doubt.

Quite apart from the above, the aforesaid proposition of law should not detain us for long. In the recent decision rendered in the case of Dhannalal (supra), a two-Judge Bench of the Apex Court while dealing with the question of M.P. Accommodation Control Act, in paragraphs 16 and 17 has held as under :

It is well settled by atleast three decisions of this Court, namely, Sri Ram Pasricha Vs. Jagannath and Others, , Kanta Goel Vs. B.P. Pathak and Others, and Pal Singh Vs. Sunder Singh (Dead) by Lrs. and Others, that one of the co-owners can alone and in his own right file a suit for ejectment of tenant and it is no defence open to tenant to question the maintainability of the suit on the ground that other co-owners were not joined as parties to the suit. When the property forming subject matter of eviction proceedings is owned by several owners, every co-owner owns every part and every bit of the joint property along with Ors. and it cannot be said that he is only a part owner or a fractional owner of the property so long as the property has not been partitioned. He can alone maintain a suit for eviction of tenant without joining the other co-owners if such other co-owners do not object. In Shri Ram Pasrichu''s case (supra) reliance was placed by the tenant on the English rule that if two or more landlords institute a suit for possession on the ground that a dwelling house is required for occupation of one of them as a residence the suit would fail, the requirement must be of all the landlords. The Court noted that the English rule was not followed by the High Courts of Calcutta and Gujrat which High Courts have respectively dissented from the rule of English law. This Court held that a decree could be passed in favour of the Plaintiff though he was not the absolute and full owner of the premises because he required the premises for his own use and also satisfied the requirement of being "if he is the owner'''', the expression as employed by Section 13(1)(f) of W.B. Premises Tenancy Act, 1956.

It follows that a widow, who is a co-owner and landlady of the premises can in her own right initiate proceedings for eviction u/s 23-A(b), as analysed hereinbefore, without joining other co-owners/eo-landlords as party to the proceedings if they do not object to the initiation of proceedings by such landlady, because she is the owner of the property and requires the tenanted accommodation for the purpose of continuing or starting the business of any of her major sons. The major sons though co-owners/co-landlords may not have been joined as party to the proceedings but it would not adversely affect the maintainability of the proceedings. It would also not make any difference if they are also joined as parly to the proceedings. Their presence in the proceedings is suggestive of their concurrence with the widow landlady maintaining the proceedings in her own right. The presence of such co-landlords, as co-Plaintiff''s or co-applicants, as are not classified landlords as defined in Section 23-J of the Act does not alter the nature of claim preferred by the widow landlady and therefore does not take the proceedings out of the scope of Section 23-A(b). Conversely, the major sons or any of them suing alone without joining a widow co-landlord as party to a Civil Court u/s 12 of the Act pleading that the non-residential premises were required bona fide by them or any ot them for the purpose of continuing or starting their own or his own business as they would be owners thereof and the requirement will be theirs. It would not make any material difference if the widow co-landlord was joined as party to the proceedings either as Plaintiff or as co-applicant because the case pleaded in the plaint would squarely fall within the ambit of Clause (f) Sub-Section (1) of Section 12 of the Act.

On a perusal of the phraseology used by their Lordships in above paragraphs, it is crystal clear that any unqualified co-owner can maintain a suit for eviction without joining the other co-owners if such co-owners do not object (emphasis supplied) and again the observation of their Lordships that joinder of the co-owners is suggestive of their concurrence. In view of the aforesaid, there remains no trace of doubt that a co-owner/landlord cannot institute a suit or proceeding for eviction against the tenant. The change of forum or the concept of bona fide need does not make the slightest difference. This question is answered accordingly.

Now we shall dwell upon the next question. It is submitted by Mr. Usmani and Mr. Hafizullah that if a person who has purchased the undivided share from one of the co-owners, it is he who has to vacate the premises and thereafter file a suit for possession. Per contra, Mr. Jain has contended that the tenant having earned the status of co-owner is not liable for eviction and he can only be evicted after other co-owners file a suit for partition and on the base of title demarcate their share relatable to possession.

In this context, Mr. Ravish Agrawal, learned senior counsel has drawn inspiration from the decision rendered in the case of B.P. Pathak (supra). In the aforesaid case, the Division Bench, wherein Shivdayal, J. (as His Lordship then was) in paragraph 18 has held as under :

It is settled law that one of the joint lessors cannot alone terminate a lease. Lease must be determined by all the lessors. If one of the lessors desires to determine the tenancy and the other does not, the former has to effect a partition and get his share separated. Then, in respect of the part, which the former acquires by partition, he becomes the sole lessor vis-a-vis the lessee. A partition between co-owners is a transfer of the respective parts of the property within the meaning of Section 109, although, strictly speaking, in respect of the part acquired by a particular co-owner, there is "surrender'''' by the Ors. of their interest. See AIR 1944 44 (Nagpur) , Pyarelalsa Vs. Garanchandsa and Others, ; Skattar Singh v. Rawela AIR 1952 J&K. 18 and Banarsilal v. Bhagwan AIR 1955 Raj. 167.

A partition brings about splitting of the tenancy and the co-owner in respect of the part of the property allotted to him in the partition is entitled to eject the tenant. In that case, his right to determine the lease or to eject the tenant will not be dependent on the other separated co-owners joining hands with him; otherwise, the partition will have no meaning and it will amount to this that if one of the co-owners does not want a tenant to be ejected, he could never be ejected either during the continuance of joint ownership or even after partition. This demonstrates that the law recognises splitting of tenancy in circumstances where the original tenancy is substituted either by contract or by statutory effect. It cannot be the law that one of the co-owners can absolutely defeat the right of the other co-owners as regards ejectment of the tenant. He can exercise his veto so long as he continues to be a joint owner. But, after partition, his veto is abolished along with his interest in the part not allotted to him. In Manikkam v. Rathansami, AIR 1919 Mad. 1186, it was held :

The words used are ''all the rights'' and the expression is very comprehensive. There does not seem to be any reason why the words should be held not to include the right to recover possession by terminating the tenancy of a previous lessee by giving the necessary notice to quit. That is one of the rights of the lessor as to the property transferred.

It has been held that one of the several joint lessors, who had become separately entitled to a share of the land leased, is entitled to enforce the forfeiture clause in the lease deed separately as regards his share of the lands. It gives sufficient cause of action to the lessor to bring a suit for ejectment. See Karapalu v. Narayana ILR (1915) 38 Mad. 445 : AIR 1915 Mad. 813where Cutting v. Derby 1776 96 ER 633 and Doe De Whayman v. Chaplin 1810 128 ER 49, have been referred to. See also Syed Ahmad v. Magnesite Syndicate Ltd. ILR (1916) 39 Mad. 1049 : AIR 1917 Mad. 151.

Mr. Jain, has commended us to the decision rendered in the case of Midnapur Zamindary Co. v. Naresh Narayan Roy, 1924 PC 144. At this juncture, Mr. Usmani submitted that all those decisions were rendered in the context of Section 109 of the Transfer of Property Act and hence, would not be applicable to the present case and infact Section 44 of the Transfer of Properties Act is attracted. The aforesaid submission advanced by Mr. Usmani, in our considered opinion, is sans substance. If the co-owner has a power to exercise veto and a tenant earns the status of co-owner, it cannot be said that he is required first to vacate the premises and thereafter file a suit for partition and separate possession. It is contended by Mr. Hafizullahj that the present Petitioner who had visited Rent Controlling Authority was a pro forma Appellant in second appeal. On a perusal of the judgment of the second appeal, it is clear that he was one of the co-Plaintiff and definitely the finding recorded in second appeal would apply to each Plaintiff. It has been held in the case of Sardarimal (supra) that a transferee of part rival also refers to lessee entitled to eviction in that case, any co-owner who requires separate possession has to file a suit. It will depend upon the facts of each case.

At this juncture, we think it appropriate to refer to some of the citations which have been cited by Mr. Hafizullah and Mr. Usmani. The said decisions refer to the rights of a stranger purchaser who is not in possession. Therefore, the law laid down in that regard would not be applicable to a case where a tenant by virtue of purchase earns the status of a co-owner.

In view of the preceding analysis, we answer the questions as follows :

A co-owner/landlord cannot file a suit for eviction against the tenant if other co-owner objects.

If a tenant who has purchased the property from a co-owner and gets into the shoes of the co-owner need not file a suit for partition and separate possession and there is no obligation on his part to handover possession and thereafter sue for partition and separate possession. Any co-owner who wants to have possession, by meets and bounds, may file a suit for partition and claim separate possession and thereafter seek eviction of the tenant from the part of reversion falling to his share after partition.

The judgment rendered in the second appeal No. 48/88 operates as res judicata despite pure questions of law decided therein. We may also add here that the judgment having been delivered inter se parties, the same would have been otherwise binding on us, in view of the law laid down by this Court in the case of Shyamacharan v. Sheojee Bhai 1964 JLJ 736 : 1964 MPLJ 502 as well as the conception in the case of Mulamchand (supra) that the doctrine of res judicata over weighs the binding precedent.

Let the matter be placed before the learned Single Judge for disposal of the civil revision.