SHAMSHUNNISSA Vs. LATAFAT HUSAIN

JUDGEMENT

(1.) This appeal has been preferred to this Court by the decree-holders in a suit for partition of a house.

(2.) Two brothers, Abdul Hamid Khan and Abdul Majid Khan, who were owners of a seven anna share in a certain house brought a suit for partition of their share against one Mohammad Atiq to whom the remaining nine anna share belonged. The lower storey of this house is in the occupation of one Latafat Husain. In the upper room of this house, a woman of the name of Fayazan resides. In the suit which was brought by the brothers, Latafat Husain and Fayazan were made parties. Mohammad Atiq contested it, however, on the ground that the house was not capable of partition by metes and bounds. Its width is 11 ft. and length 13 ft. and, therefore, to partition it conveniently is an impossibility. It was urged by Mohammad Atiq that the Court should take proceedings under Sections 2 and 3, Partition Act. The Munsif, however, decreed the claim for partition on 8th October 1912, and directed preparation of a final decree. Dissatisfied with the decree of the learned Munsif, Mohammad Atiq went in appeal to the learned Civil Judge. Cross-objections were filed by the two brothers, objecting to the conditions laid down for partition by the trial Court. To the appeal Latafat Husain and Fayazan were not made parties. The learned Civil Judge dismissed the appeal and the cross objections filed by the plaintiffs were partially allowed. The amin was directed to demarcate the two portions by clearly defined lines or mark stones. The amin submitted his report on 19th October 1943. Thereafter, the final decree was prepared and the amin's report was made a part of it. By this final decree, the plaintiffs were allotted the portion marked A and Mohammad Atiq, portion marked B. To the final decree Latafat Husain and Fayazan were not parties. Subsequently, on 7th February 1944, the plaintiff-decree, holders applied to the execution Court praying that they be put in separate possession over the portion marked A. On 28th February 1944, the decree-holders executed a dakhalnama and possession over the portion marked A was delivered. On 27th May 1944 the execution case was struck off.

(3.) Subsequent to the passing of this order another application in the execution department was made by the plaintiff decree-holders against three persons who were the original defendants to the suit on 4th January 1945. The relief sought by them was that the share allotted to the decree-holders be partitioned by erecting a screen wall and that possession be delivered to them after this had been done. To this application Latafat Husain and Fayazan objected on 27th January 1945. Their case as disclosed in the objection was that the erection of the partition wall would make the room in the upper storey and the shop in the first floor uninhabitable and would virtually amount to an ejectment of the defendant. Both of them took their stand on the House Control Order under which as ejectment of tenants had been prohibited. The learned Munsif came to the conclusion that there was no force in those objections and he dismissed them with the remark that the decree-holders were within their rights to have a wall constructed. Against that order, the two tenants, Latafat Husain and Fayazan went in appeal to the learned Civil Judge. Objections preferred by the tenants to the execution of the decree were allowed by the learned Civil Judge on the ground that the decree would defeat the objects for which the House Control Order was meant. It was farther held by him that a division of a house 13 ft. on one side and 11 ft. on the other would make the house unfit for human inhabitation. It was further held by the learned Judge that the erection of a wall in the middle of the house would leave no access to the owner of the nine anna share in it. The main ground on which the learned Judge came to the conclusion that the decree was not capable of execution was that the division of the house into seven anna and nine anna portions would result in a virtual ejectment of Latafat Husain and Fayazan. The view that he took was that it was not open to the Court to eject a tenant without the previously obtained written permission of the rationing officer. The view of the learned Judge is that where a house is in possession of a tenant, it cannot be altered in any way or interfered with by the landlord, except with the permission of the town rationing officer. For this reason the learned Judge allowed the appeal filed by the tenant-objectors. The decree-holders have come up in appeal against the order of the learned Civil Judge. One of the tenants, Latafat Husain, has entered into a compromise with the decree-holders. The other tenant, Fayazan, has not been able to arrive at any settlement with the decree-holders.