T.C.SENKUMAR Vs. M.K.RAHDAKRISHNAN NAIR

JUDGEMENT

(1.) The defendant in a suit for partition is in appeal.

(2.) By virtue of Ext.A1 partition deed, the plaintiff and his brother Parameswaran Nair obtained a portion of a building which is a shop room. The defendant was in occupation of the said shop room as a tenant even before the partition. After the partition, the plaintiff and his brother Parameswaran Nair initiated proceedings under the Kerala Buildings (Lease and Rent Control) Act, 1965 for eviction of the defendant from the said shop room. Though the Rent Control Court allowed the eviction petition, the defendant took up the matter in appeal. During the pendency of the appeal, the defendant purchased the one half undivided share of Parameswaran Nair in the building which was the subject matter of the eviction petition. On the strength of the said purchase, the defendant contended before the appellate authority constituted under the said Act that he became a co - owner of the property and therefore, the eviction petition is not maintainable. The essence of the said contention was that the acquisition of the fractional interest in the building by the defendant has resulted in the determination of the lease in respect of the building. The appellate authority accepted the said contention of the defendant and dismissed the eviction petition. Though the plaintiff challenged the decision of the appellate authority before this Court in a revision petition, this Court confirmed the decision of the appellate authority.

(3.) Since the defendant took the stand in the eviction petition that the acquisition of the fractional interest in the building by him has resulted in the determination of the lease in respect of the building, the plaintiff has instituted the present suit for partition of his share in the building which was the subject matter of the eviction petition. Though the defendant did not oppose the prayer for partition, he contended that there is a provision in Ext.A1 partition deed to the effect that the southern one half portion of the building is the share of the plaintiff and therefore, he is to be treated as the tenant of the said portion of the building. As such, according to the defendant, separate possession of the said portion can be obtained by the plaintiff only in accordance with the provisions of the Kerala Buildings (Lease and Rent Control) Act. The trial court accepted the case of the defendant and consequently though a decree was passed for partition of the southern one half portion of the building in favour of the plaintiff, the decree for separate possession of the said portion sought by the plaintiff has not been granted. The plaintiff challenged the decision of the trial court in appeal. The appellate court, relying on the decision of this Court in Jayachandra Nadar v. Malathi (2000(2) KLT 660), held that by virtue of the acquisition of the fractional interest in the property, the tenant became a co -owner of the property and therefore, he cannot be heard to contend that he continues to be the tenant of any portion of the building. In other words, the view taken by the appellate court was that the acquisition of the fractional interest in the building by the defendant has resulted in the determination of the lease in respect of the building. Consequently, the appellate court reversed the decision of the trial court and decreed the suit as prayed for granting the plaintiff a decree for separate possession of his share in the building also. The defendant is aggrieved by the said decision of the appellate court and hence this second appeal.