Mehar Singh and Others vs Gian Chand and Others

K. Kannan, J.—The following substantial question of law arises for consideration in this second appeal:-

Whether a tenant inducted by one of the co-owners could be defeated in his statutory right of protection under the East Punjab Urban Rent

Restriction Act by an allotment in partition to other co-sharers of the property so long as the lease itself was not collusive or in excess of the

authority of the co-owner that created the lease?

In a suit for partition of the properties in the municipal limits of Nawanshahar, where defendants No. 1 to 6 claim to be tenants from yet another

co-defendant, the contention was that there could not be a partition and the allotment that could disturb the tenancy right. Both the courts below

held the defendants to be trespassers. They also found that there had been tenancy by Sham Dass and later by his son Panna Lal in favour of the

other defendants. The characterization as trespasser came only by the fact that the plaintiffs had been allotted the suit property to their share and

the moment that allotment was made to other co-owners, the tenant from other co-owner could not retain possession and their possession

becomes unlawful.

The point raised for contest is squarely covered through the decision of the Supreme Court in Karta Ram Rameshwar Dass Vs. Ram Bilas and

Others, which held that a partition decree cannot defeat the right of the statutory tenants from the other co-owner unless the lease itself is attacked

as collusive or in excess of the authority of the co-owner, which has created the lease. Both the courts have not characterized the lease in favour of

the defendants themselves to be collusive or fraudulent. They have been found to be trespasser only on the basis of an allotment that had been

made to the plaintiffs and not to the share of the tenants'' own landlord, who was other co-owner. A circumstance that the partition between the

landlord and other members of the family did not bring the allotment of the leased property to the landlord cannot take away the right of the person

who is lawfully inducted by one of the co-owners. The finding of both the courts below that the tenants were trespassers being in unlawful

possession is not legally tenable and is set aside. The second appeal is allowed, but the co-owners who have been allotted the property that are in

the hands of the tenants have a right to seek attornment in their own favour as the landlords who obtained the right by a decree of court and

exercise their own right to ejectment in accordance with law under the provisions of the Act, if any other grounds mentioned in the Rent Act are

made out. In such eventuality, the rights of the parties will abide by the adjudication made by the competent authorities under the act. The second

appeal is allowed, but there shall, however, be no direction as to costs.