SHANTI DEVI Vs. VINDHYACHAL PRASAD

JUDGEMENT

(1.) THIS is a landlady's petition under Article 226 of the Constitution arising out of proceedings under Section 21 of U. P. Act 13 of 1972 (hereinafter called the Act). The relevant facts are that the tenant occupies some portion on the first floor and some on the ground floor of the disputed building. There were five co-landlords. The petitioner filed a partition suit against the other four co-owners and obtained a final partition decree. Thereafter she alone applied under Section 21(1) (a) of the Act for release of the tenanted portion falling in her Kura impleading the other four co-owners and co-landlords of the tenants as respondents. It is not quite clear from the material on record as to what precise portions she wanted to be released though the recitals in the order of the Prescribed Authority suggest that these were part of a room on the first floor and a Galyara and Rasta on the ground floor which is in common use of the petitioner and the tenants. The Prescribed Authority allowed the application for release holding that even after such release the tenants would be left with two rooms and other amenities besides their separate house in Sehatwar town. On appeal by the tenant, the District Judge allowing the appeal rejected the release application on the ground that the petitioner alone was not entitled to apply under Section 21(1) (a) of the Act and all the co-owners were required to join in such an application. THIS order has been challenged by this petition. Learned counsel for the petitioner has urged that the District Judge has erred in holding that the petitioner who had obtained a final decree for partition against the other co-owners alone could not maintain the release application with regard to her partitioned portion of the tenanted premises after joining the other co-owners-cum-co-landlords as respondents. The District Judge relied upon the observations in Sarju Devi v. Prescribed Authority 1976 A.W.O. 752 to take this view. In this case their Lordships noted the general law that all the co-owners should join in a suit for eviction of a tenant. But what the appellate authority failed to notice was that the Division Bench also observed that Section 21 of the Act made a departure from the general rule that the integrity of a contract of tenancy cannot be broken and that Section 21 (I) itself provides that eviction of a tenant may be ordered from a part of the tenanted premises. The question of the rights of one co-owner-cum-co-landlord who has obtained a final decree for partition against the other co landlords vis-a-vis the tenant in his separated portion did not arise in the Division Bench case and has not been considered by the District Judge who has summarily observed that the tenancy was a composite one and could not be split up, apparently implying that a partition inter se amongst the co-landlords did not bind the tenant. B. P. Pathak v. Dr. Riayazuddin A.I.R. 1976 M.P. 55 deals with this question. It was held by a Division Bench of Madhya Pradesh High Court that in case of transfer of lessor's interest in a part of the leased property a statutory attornment takes place under Section 109 Transfer of Property Act and the transferees interest is complete on the execution of the deed of assignment and is not postponed till the notice of assignment On a parity of reasoning the principle is applicable also to a case where partition takes place between co-owners or co-landlords the tenancy will be split in parts according to the partition decree. It' this is the position, after the partition decree the petitioner alone became the landlady of the portion allotted to her in partition and she could properly move an application under Section 21 (1) (a) of the Act for release. THIS position also takes care of Rule 15 which requires all the co-landlords to sign the application for release. Even otherwise it has been held in Gtrraj Singh v III Addl, District Judge, 1979 Alld. Rent Cases 422 that the provisions of Rule 15 are merely directory and if the other co-landlords do not join the application tae rule is complied with by impleading them as respondents. Actually it is not necessary to reply on this position in view of the proposition laid down in B. P. Pathak's case (supra). In this view of the matter the decision of the appellate authority rejecting the application is unsustainable and must be quashed. I would like to observe that the District Judge should take care to clearly appreciate the precise portions sought to be released including the question whether release of the Galyara and passage would lead to the closure of the stair-case for the tenant and in that connection should also consider whether the tenant have some other passage or passages available to them. As regards the first floor room part of which release is sought, before entering upon the decision the District Judge should be clear about the position as to whether it is a partitioned portion or un partitioned portion and the precise use to which it is being put by the tenants and if necessary give incidental directions to make the order effective. These observations have been made with a view to have a clear picture which is not the position in the present orders and shall not be taken to mean any expression of opinion one way or the other. It will be for the District Judge to consider all the aspects in appeal. In the result, the petition is allowed, the impugned order of the 1st Additional District Judge dated 17- 11-1977 is quashed and he is directed to decide the appeal afresh according to law in the light of observations in this order. No order as to costs.