1. Heard Sri H.N. Singh, Senior Advocate assisted by Sri Vineet Kumar Singh, learned counsel for the petitioner and Sri Atul Dayal, Senior Advocate assisted by Sri Ayush Khanna, learned counsel for the respondents.
2. The petitioner through pre0sent petition has assailed the order dated 30.09.2019 passed by Judge, Small Causes Court, Allahabad in Miscellaneous Case No.812 of 2017 arising out of Execution Case No.6 of 2017 rejecting the petitioner's application under Section 47 of C.P.C. and order dated 27.11.2019 passed by the Sessions Judge, Court No.1, Allahabad in Civil Revision No. Nil of 2019 preferred by the petitioner against the order dated 30.09.2019.
3. The facts giving rise to the present petition are that premises bearing Municipal No.599 (Old) (New No.1008) situated in Mutthiganj, Allahabad (hereinafter referred to as 'disputed premises') was owned by Smt. Chameli Devi and Om Prakash (respondent no.1), Rajendra Prasad(respondent no.2) and Sri Ram (respondent no.3) grandsons of Smt. Chameli Devi. Respondent nos.1 to 3 claimed the ownership of disputed premises on the basis of Will dated 28.12.1976 executed by Smt. Chameli Devi who died on 30.07.1985.
4. The disputed premises was let out to one Mishri Lal in the year 1968 on rent of Rs.96/- per month. The respondent nos.1 to 3 instituted a Suit No.252 of 1989 for eviction of Mishri Lal from the disputed premises on the ground of default of payment of rent and subletting the disputed premise to Moti Chandra.
5. The suit was contested by Mishri Lal by filing written statement contending, inter-alia, that there was no default in payment of rent. He further denied the subletting of the disputed premises to Moti Chandra as according to him Moti Chandra was his nephew and partner in his business.
6. The suit was decreed by the judgement dated 08.08.1991 which was challenged by Mishri Lal in Civil Revision No.145 of 1991. The District Judge, Allahabad by judgement and order dated 04.12.1991 allowed the revision on the ground that respondents (Plaintiff in suit) have failed to prove that they were exclusive owner and landlord of the disputed premises. The respondents preferred Writ Petition No.11498 of 1992 before this Court challenging the order dated 04.12.1991 in Civil Revision No.145 of 1991. The writ petition was allowed by this Court by judgement and order dated 2nd of August, 2006 and the matter was remanded back to the court below to decide the revision by the law.
7. It appears that respondent no.3 during the pendency of the Writ Petition No.11498 of 1992 transferred his 1/3rd share in the disputed premises to the petitioner Smt. Geeta Devi W/o Moti Chandra by sale deed dated 25.02.2003
8. It transpires from the record that after remand the petitioner filed an application for impleadment in Civil Revision No.145 of 1991 which was allowed by the revision court by order dated 28.01.2008 and revision-applicant (Misri Lal) was directed to move an application to implead Smt. Geeta Devi as O.P. No.4 in the case. It is not clear from the record as to whether Smt. Geeta Devi (petitioner) was impleaded as O.P. No.4 by the tenant- Mishri Lal and whether Smt. Geeta Devi after having been impleaded as the party had contested the revision.
9. The revision court again allowed the revision No.145 of 1991 of tenant Mishri Lal by order dated 27.02.2010 and set aside the order of the trial court. The order of revision court dated 27.02.2010 came to be challenged by the respondent nos.1 and 2 in Writ A No.26732 of 2010 which was dismissed by this Court by judgement and order dated 25.02.2014.
10. The respondent nos.1 & 2 challenged the judgement of this Court dated 25.02.2014 before the Apex Court in Civil Appeal No.4309 of 2017. The record reveals that during the pendency of Civil Appeal No.4309 of 2017 Misri Lal, original tenant, had died and his wife Smt. Savitri Devi was substituted as his legal heir. The Apex Court by judgement dated 21.03.2017 allowed the appeal and decreed the Suit of the respondent no. 1 & 2. The relevant extract of the order of the Apex Court is reproduced hereinbelow:
"35...Having regard to the conclusions recorded on the aspect of default in payment of rent and sub-letting, both statutorily recognized grounds for eviction of a tenant under Section 20 of the Act, it is considered inessential to dilate on the ground of bona fide requirement and comparative hardship. In the wake up of the above, the impugned judgments and orders of the High Court are set-aside and the suit of the appellants is decreed in full. The respondents would vacate the suit premises at the earliest and in no case later than three months from today. The appeals are allowed. No costs."
11. The respondent nos. 1 & 2 thereafter preferred an execution application registered as Execution Case No.6 of 2017.
12. In the execution case, the petitioner preferred an objection under Section 47 of C.P.C. registered as Miscellaneous Case No.812 of 2017 contending, inter-alia, that the Suit No.252 of 1989 of the respondents have been decreed and one of the co-owner Sri Ram during the pendency of the Suit transferred his 1/3rd share in the disputed premises to the petitioner by registered sale deed dated 25.02.2003. Therefore, petitioner became co-owner of the disputed premises from the date of purchase of 1/3rd share of Sri Ram in the disputed premises. It was further averred that after the judgement of the Apex Court, tenant Smt. Savitri Devi had delivered the possession of disputed premises to petitioner on the instruction of Sri Ram, respondent no. 3, therefore, possession of one co-owner will be deemed to be the possession of all. It was further pleaded that the decree stood satisfied on delivery of the possession by the tenant to the petitioner and proceeding in the execution case cannot continue. It was also stated that petitioner has instituted Original Suit No.746 of 2008 against the respondent nos.1 & 2 for partition.
13. The respondents filed a reply to the objection of the petitioner under Section 47 of C.P.C. contending, inter-alia, that the alleged delivery of possession by Smt. Savitri Devi to petitioner is illegal since the petitioner cannot get possession of the disputed property in law, claiming herself to be the co-owner on the basis of sale deed dated 25.02.2003 executed by Sri Ram, respondent no.3.
14. The trial court rejected the objection of the petitioner under Section 47 of C.P.C. by order dated 30.09.2019 on the ground that the Apex Court had accepted the case of the respondents regarding subletting of disputed premises to Moti Chandra and petitioner Smt. Geeta Devi is the wife of Moti Chand. The trial court further held that after the judgement of the Apex Court all orders in the revision are deemed to have been set aside, thus, the petitioner cannot take any advantage of the order dated 28.01.2008 passed by the revision court allowing her impleadment application. The trial court further held that the status of the parties is to be determined on the date of institution of the suit, and on the date of institution of the suit, the status of the petitioner was that of the wife of subtenant of the disputed premises, hence, petitioner could not get possession as co-owner of the disputed premises.
15. The trial court further held that merely because petitioner has obtained an assignment of rights of the landlord and ownership of the disputed premises from one of the co-owner that would not entitle her to seek possession of the disputed premises in the capacity of the landlord from the tenant in the execution of a decree. The trial court further noted that suit for partition has been instituted by the petitioner and she can get possession after the decision of the suit for partition in her favour.
16. The petitioner, thereafter, preferred Civil Revision No. Nil of 2019 against the order dated 30.09.2019. The revision court also placed reliance upon Section 111 (d) of the Transfer of Property Act, 1882 (hereinafter referred to as 'Act, 1882) to conclude that since petitioner has purchased only a share of one of the co-owner to the extent of 1/3rd in the disputed premises, therefore, there cannot be any merger of tenancy, consequently, she cannot obtain possession of the disputed premises in the execution of a decree for eviction.
17. Challenging the aforesaid two orders, learned Senior Counsel for the petitioner has argued that the petitioner having purchased 1/3rd share of one of the co-owner Sri Ram by sale deed dated 25.02.2003 has become co-owner of the disputed premises, accordingly, the decree of eviction is also in her favour. Therefore, tenant, treating the petitioner to be decree-holder and co-landlord, delivered the possession of the disputed premises in compliance with the judgement of Apex Court. Consequently, decree stood satisfied on delivery of possession of disputed premises to the petitioner, therefore, the courts below have erred in rejecting the objection of the petitioner.
18. It is further urged that the petitioner is one of the co-owner cannot be considered to be a tenant or subtenant of the disputed premises, therefore, her possession is as per law because of Section 44 of the Act, 1882 and petitioner cannot be said to be the unauthorized occupant of the disputed premises. He further submits that the petitioner is ready and willing to part with 2/3rd share of the disputed premises and handover the possession of the same on any date fixed by the court to respondent nos.1 & 2, and the petitioner may be permitted to retain 1/3rd share of the disputed premises purchased by her from Sri Ram.
19. Per contra, Sri Atul Dayal learned Senior Counsel for the respondents would contend that petitioner, who alleges to have purchased 1/3rd share of Sri Ram through sale deed dated 25.02.2003, is not a member of the family and is a third party, therefore, she cannot enter into the possession of the disputed premises. In support of his aforesaid contention, he has placed reliance upon the second paragraph of Section 44 of the Act, 1882. He further contends that the benefit of Sections 44, 54 and 55(6) as claimed by the petitioner cannot be extended to her being an outsider of the family.
20. He further urged that petitioner has purchased only 1/3rd share of the disputed premises of Sri Ram and on the strength of the alleged purchase, she cannot obtain possession as the doctrine of the merger of tenancy contemplated under Section 111(d) of the Act, 1882 is not attracted in the case in hand. In support of his contention, he has placed reliance upon the following judgements of Apex Court:
(i). Pramod Kumar Jaiswal and Others Vs. Bibi Husn Bano and Others 2005 (2) ARC 921;
(ii). India Umbrella Manufacturing Co. and Others Vs. Bhagabandei Agarwalla (Dead) By LRS Savitri Agarwalla (Smt.) and Others (2004) 3 SCC 178;
(iii). T. Lakshmipathi and Others Vs. P.Nithyananda Reddy and Others (2003) 5 SCC 150.
21. I have considered the rival submissions of the parties and perused the record.
22. Sri H.N. Singh learned Senior Counsel has argued that the transfer of 1/3rd share of Sri Ram in favour of the petitioner has been through a sale deed dated 25.02.2003 which conforms to the requirement of sale as provided under Section 54 of the Act, 1882, therefore, petitioner is entitled to the benefit of Sections 44 and 55 (6) (a) of the Act, 1882.
23. To appreciate the aforesaid contention, it would be appropriate to extract Sections 44 and 55 (6) (a) of the Act, 1882:
"44. Transfer by one co-owner.--Where one of two or more co-owners of immoveable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires as to such share or interest, and so far as is necessary to give, effect to the transfer, the transferor's right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liabilities affecting at the date of the transfer, the share or interest so transferred.
Where the transferee of a share of a dwelling-house belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house.
55. Rights and liabilities of buyer and seller.--In the absence of a contract to the contrary, the buyer and the seller of immoveable property respectively are subject to the liabilities, and have the rights, mentioned in the rules next following, or such of them as are applicable to the property sold:
(6) The buyer is entitled--
(a) where the ownership of the property has passed to him, to the benefit of any improvement in, or increase in value of, the property, and to the rents and profits thereof."
24. Sri Atul Dayal, learned Senior Counsel for the respondents while refuting the submission of counsel for the petitioner has invited the attention of the Court to the second paragraph of Section 44 of the Act, 1882 to contend that disputed premises is dwelling house and petitioner admittedly being not a member of the family is not entitled to the protection provided in the first paragraph of Section 44 read with Section 55 (6) (a) of the Act, 1882. He submits that the petitioner has already instituted a suit for partition and the only mode which law recognises for delivery of possession in the case of joint property in respect of the transfer of ownership by one of the co-owner to the extent of his/her share is through the partition. The submission is that after the partition of the disputed premises by metes and bounds, the petitioner can get the possession. He submits that the question as to whether petitioner is entitled to partition based on sale deed dated 25.02.2003 is yet to be determined in the Suit No. 746 of 2008.
25. It would be apt to refer a few judgements of the Apex Court wherein the Apex Court has explained the scope of the second paragraph of Section 44 of the Act, 1882.
26. The Apex Court in the case of Ramdas Vs. Sitabai and Others (2009) 7 SCC 444 held that in the case of a purchase of an undivided share of co-sharer by a third party, possession can be handed over by partition amicably through mutual settlement by metes and bounds or by a decree of the court. Paragraphs 17 to 19 of the judgement are being extracted herein below:
"17. Without there being any physical formal partition of an undivided landed property, a co-sharer cannot put a vendee in possession although such a co-sharer may have a right to transfer his undivided share. Reliance in this regard may be placed to a decision of this Court in M.V.S. Manikayala Rao Vs. M. Narasimhaswami & Ors. [AIR 1966 SC 470], wherein this Court stated as follows:
"Now, it is well settled that the purchaser of a co-parcener's undivided interest in the joint family property is not entitled to possession of what he had purchased. His only right is to sue for partition of the property and ask for allotment to him of that which, on partition, might be found to fall to the share of the co- parcener whose share he had purchased."
18. It may be mentioned herein that the aforesaid findings and the conclusions were recorded by the Supreme Court by placing reliance upon an earlier judgment of this Court in Sidheshwar Mukherjee Vs. Bhubneshwar Prasad Narain Singh & Ors. [AIR 1953 SC 487], wherein this Court held as under:
"All that (vendee) purchased at the execution sale, was the undivided interest of co-parcener in the joint property. He did not acquire title to any defined share in the property and was not entitled to joint possession from the date of his purchase. He could work-out his rights only by a suit for partition and his right to possession would date from the period when a specific allotment was made in his favour (Emphasis added)
19. In view of the aforesaid position there could be no dispute with regard to the fact that an undivided share of co-sharer may be a subject matter of sale, but possession cannot be handed over to the vendee unless the property is partitioned by metes and bounds amicably and through mutual settlement or by a decree of the Court."
27. The Apex Court in the case of Hardeo Rai Vs. Sakuntala Devi and Others (2008) 7 SCC 46 held that a coparcener's interest can be transferred subject to the condition that the purchaser without the consent of other coparceners cannot get possession of what he has purchased. Paragraphs 25 and 26 of the judgement are being extracted herein below:
"25. In M.V.S. Manikayala Rao vs. M. Naraisimhaswami and others: AIR 1966 SC 470 this Court stated the law thus : (AIR p.478, para 5)
"5....it is well settled that the purchaser of a coparcener's undivided interest in joint family property is not entitled to possession of what he has purchased."
26. Thus, even a coparcenary interest can be transferred subject to the condition that the purchaser without the consent of his other coparceners cannot get possession. He acquires a right to sue for partition."
28. The Apex Court in the case of Ghantesher Ghosh Vs. Madan Mohan Ghosh and Others (1996) 11 SCC 446 in paragraph 4 of the judgement while considering the purpose of the enactment of Section 4 of Partition Act, 1893 (hereinafter referred to as 'Act, 1893') also considered the reasons for introducing Section 44 in the Act, 1882. Paragraph no. 4, 6 & 10 of the judgement is useful in the context of the present case and are being reproduced hereinbelow:
"4. It is in the background of these rival contentions that we address ourselves to the consideration of this question. Before we refer to the cleavage of judicial opinion amongst different High Courts on the scope and ambit of Section 4 of the Act, it would be profitable to have a look at the provision itself. The Statement of Objects and Reasons for enacting the Partition Act, 1893 amongst others, provided as under :
"It is also proposed in the Bill to give the Court the power of compelling a stranger, who has acquired by purchase a share in a family dwelling-house when he seeks for a partition, to sell his share to the members of the family who are the owners of the rest of the house at a valuation to be determined by the Court. This provision is only an extension of the privilege given to such share holders by section 44, paragraph 2 of the Transfer of Property Act, and is an application of a well- known rule which obtains among Muhammadans everywhere and by custom also among Hindus in some parts of the country."
It is obvious that the Act intended to extend the privilege already available to a co-sharer in a family dwelling house as per Section 44 of the Transfer of Property Act, 1882 (hereinafter referred to as the T.P. Act')...
It is obvious that by the time the Act came to be enacted, the legislature had in view the aforesaid parent provision engrafted in section 44 of the T.P. Act to the effect that a stranger to the family who becomes the transferee of an undivided share of one of the co owners in a dwelling house belonging to undivided family could not claim a right of joint possession or common or part enjoyment of the house with other co-owners of the dwelling house. Implicit in the provision was the legislative intent that such stranger should be kept away from the common dwelling house occupied by other co-sharers. It was enacted with the avowed object of ensuring peaceful enjoyment of, the common dwelling house by the remaining co-owners being members of the same family sharing a common hearth and or home. It is in the light of the aforesaid pre-existing statutory background encompassing the subject that we have to see what Section 4 of the Act purports to do. Section 4 of the Act provides as under:...."
6. In order to answer this moot question, it has to be kept in view what the legislature intended while enacting the Act and specially Section 4 thereof. The legislative intent as reflected by the Statement of Objects and Reasons, as noted earlier, makes it clear that the restriction imposed on a stranger transferee of a share-of one or more of the co-owners in a dwelling house by Section 44 of the T.P. Act is tried to be further extended by Section 4 of the Partition Act with a view to seeing that such transferee washes his hands off such a family dwelling house and gets satisfied with the proper valuation of his share which will be paid to him by the pre-empting co-sharer or co-sharers, as the case may be. This right of pre-emption available to other co-owners under Section 4 is obviously in further fructification of the restriction on such a transferee as imposed by Section 44 of the T.P. Act. It is true that amongst other conditions, Section 4 requires for its applicability that such stranger transferee must sue for partition and only in that eventuality the right of pre-emption envisaged by Section 4 can be made available to the other contesting Co-owners. In this connection, great emphasis was placed by Dr. Ghosh on the words such transferee sues for partition as employed by Section 4. However, it has to be noted that this section does not provide as a condition for its applicability that such stranger transferee must file a suit for partition. The words transferee sues for partition are wider than the words transferee filing a suit for partition . The latter phraseology is conspicuously absent in the section. The Partition Act does not define the words "suing for partition". The connotation of the term "sue" can be better appreciated by looking at certain standard works defining such a phrase. In Black's Law Dictionary, Sixth Edition, at page 1432 the meaning of the word "sue is mentioned as under :
"To commence or to continue legal proceedings for recovery of a right; to proceed with as an action, and follow it up to its proper termination; to gain by legal process".
In Collins English Dictionary, 1979 Edition, at page 1452, one of the meaning of the word "sue" has been shown as under:
"To institute legal proceedings against".
In Aiyar's Judicial Dictionary, 10th Edition (1988), at page 980, the word 'sue" is said to have the following meaning :
"To take only legal proceedings against one".
It is further observed that the word is used most exclusively to prosecute a civil action against one."
10. We have also to keep in view the avowed beneficial object underlying the said provision. Section 4 of the Partition Act read with Section 44 of the T.P. Act represents a well knit legislative scheme for insulating the domestic peace of members of undivided family occupying a common dwelling house from the encroachment of a stranger transferee of the share of one undivided co-owner as the remaining co-owners are presumed to follow similar traditions and mode of life and to be accustomed to identical likes and dislikes and identical family traditions. This legislative scheme seeks to protect them from the onslaught on their peaceful joint family life by stranger-outsider to the family who may obviously be having different outlook and mode of life including food habits and other social and religious customs. Entry of such outsider in the joint family dwelling house is likely to create unnecessary disturbances not germane to the peace and tranquility not only of the occupants of the dwelling house but also of neighbours residing in the locality and in the near vicinity. With a view to seeing that such homogenious life of co-owners belonging to the same joint family and residing in the joint family dwelling house is not adversely affected by the entry of a stranger to the family, this statutory right of pre-emption is made available to the co- owners who undertake to buy out such undivided share of the stranger co-owner...."
29. It is perspicuous from the aforesaid judgements of the Apex Court that an outsider, who has purchased the share of co-sharer in an undivided estate, can seek possession of his/her share only through partition by amicable mutual settlement by metes and bounds or through a decree of the court.
30. The petitioner, being an outsider and third party to the family of the respondent, can seek possession of 1/3 share in the disputed premises purchased by her through the partition of the disputed property by metes and bounds through amicable mutual settlement or by a decree for partition. The petitioner has instituted Original Suit No. 746 of 2008 for partition wherein the issue whether petitioner is entitled to a decree of partition based on the sale deed is yet to be determined. The respondents have the right to contest the partition suit by taking all defences available in law, including their right of preemption as provided in Section 4 of the Act 1893.
31. In this view of the fact, the petitioner cannot get the possession of the share purchased by her in the disputed premises until a decree for partition is obtained by her and the disputed property has been partitioned in the execution of the decree by metes and bounds. Therefore, the delivery of possession of the disputed premises by the tenant Savitri Devi to petitioner in the execution of the decree of eviction cannot have any sanctity in law. Accordingly, this Court holds that the alleged possession of petitioner over the disputed premises is illegal and without authority in law and the petitioner is not entitled to the benefit of Section 44 and Section 55 (6) of the Act, 1882.
32. It would be expedient at this point to consider the argument of counsel for the respondent that doctrine of merger provided in Section 111(d) of the Act,1882 is not attracted in the instant case. Section 111(d) of the Act, 1882 reads as under:
"111. Determination of lease.--A lease of immoveable property determines--
(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."
33. The Apex Court in the case of Pramod Kumar Jaiswal and Others (supra) had interpreted Section 111 (d) of the Act, 1882. In the said case, the appellant-tenant had challenged the order of the High Court whereby High Court had affirmed the order of the trial court directing the appellant to deposit the rent of the property @ Rs.4950/- per month being the rent fixed under the Bihar Rent Control Act. The challenge of the aforesaid order was laid by the appellants on the ground that they have taken assignment of the rights of certain heirs, therefore, being co-owner and landlord, the lease has terminated and they are not liable to pay rent as fixed by the authority. In the aforesaid backdrop, the Apex Court considered the issue as regards the effect of purchase of the rights of certain co-owners landlords of the building by the tenants i.e. appellants on the lease originally taken by them which was the basis of their possession of the building. The Apex Court rejected the contention of the appellants and held in paragraph 6 of the judgement, that a lease can terminate only where the interests of a lessee and that of the lessor in the whole property leased become vested at the same time in one person in the same right. Paragraph no. 6 & 16 of the judgement are being extracted herein below:
"6 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 Faquir Baksh vs. Murli Dhar (58 Indian Appeals 75). Their Lordships after setting out the terms of Section 111 of the Transfer of Property Act quoted with approval 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 and others vs. Rameshwar Dayal Singh and others (1951 SCR 153) 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.
16. A plain and grammatical interpretation of Section 111(d) of the Transfer of Property Act leaves no room for doubt that unless the interests of the lessee and that of the lessor in the whole of the property leased, become vested at the same time in one person in the same right, a determination of the lease cannot take place. On taking an assignment from some of the co-owner landlords, the interests of the lessee and the lessor in the whole of the property do not become vested at the same time in one person in the same right. Therefore, 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 the estate of the landlord. It is, thus, clear that there is no substance in the contention of the learned counsel for the appellants that in the case on hand, it should have been held that the tenancy stood determined and the application of the landlord for a direction to the tenant to deposit the rent in arrears should have been dismissed. The position of the appellants as tenants continue and they are bound to comply with the requirements of the Rent Control Act under which the order for deposit has been passed against them. The High Court has rightly dismissed the revision."
34. In the case of T. Lakshmipathi and Others (supra), the Apex Court held that to attract the principle of the merger of the tenancy provided in Section 111 (d), interests of the lessee and lessor in the whole of the property shall vest in one person at the same time and in the same right. Paragraph 18 of the judgement is being extracted hereinbelow:
"18. In the case at hand, it cannot be denied, nor has it been denied, that the appellants herein are not purchasers of the entire ownership interest in the property. What they have purchased is interest of some out of all the co-owners of the property. The interest of the respondent No.1, whatever be its extent, has not come to vest in the appellants. The appellants have also acquired the tenancy rights in the property. Thus they have acquired partial ownership and full tenancy rights. It cannot be said that the interests of the les
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see and the lessor in the whole of the property have become vested in the appellants at the same time and in the same right. The lease cannot be said to have been determined by merger. So long as the interests of the lessee, the lesser estate and of the owner, the larger estate do not come to coalesce in full either the water of larger estate is not deep enough to enable annihilation or the body of lesser interest does not sink or drown fully." 35. In the case of India Umbrella Manufacturing Co. and Others (supra), the Apex Court while considering the doctrine of merger under Section 111 (d) of the Act, 1882 held that one of the co-owner cannot withdraw his consent midway the suit to prejudice the other co-owner. Paragraph 6 of the judgement is being extracted hereinbelow: "6. Having heard the learned counsel for the parties we are satisfied that the appeals are liable to be dismissed. 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 Vs. Jagannath & Ors., (1976) 4 SCC 184; Dhannalal Vs. Kalawatibai & Ors., (2002) 6 SCC 16, 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 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." 36. According to Section 111 (d), a lease of immoveable property determines in a case where the interests of the lessee and that of the lessor in the whole of the property become vested in the tenant. Thus, two conditions are mandatory to attract Section 111 (d); that it is only the tenant who should acquire the property of the landlord; second, the tenant should purchase assignment of the rights of the landlord in the property in its entirety. 37. In the instant case, the petitioner admits that she is not the tenant of the disputed premises and has purchased 1/3rd share of Sri Ram and not the entire ownership interest in the disputed premises, therefore, the twin conditions of applicability of the doctrine of merger of the tenancy are lacking. Accordingly, this court finds substance in the argument of the respondent that the doctrine of merger of tenancy is not attracted in the present case. 38. Since this Court has held the possession of the petitioner over the disputed premises is illegal, therefore, the submission of counsel for the petitioner that petitioner is ready to part with 2/3rd share of the disputed premises and handover the same to respondent nos.1 & 2 is devoid of merit. 39. Thus, for the reasons given above, the writ petition under Article 227 of Constitution of India lacks merit and is accordingly, dismissed. There shall be no order as to costs.