SHANTARAM LAXMANRAO KEKRE Vs. SHYAM SUNDAR

JUDGEMENT

(1.) THIS is an appeal under Clause 10 of the Letters Patent by the tenant against a judgment of Golwalkar, J. holding that there can be no splitting of tenancy under section 12 (1) (e) of the Madhya Pradesh Accommodation Control Act, 1961.

(2.) THE facts leading to the appeal are not in dispute and may be shortly stated. The respondents plaintiffs. Shyamsundar and Ved Bhushan, are father and son. They held the property as members of a ioint Hindu family, the demised premises of which forms a part comprising of four rooms on the ground-floor, demarcated in red lines in the plaint map. The same was demised to the appellant-defendant, shantaram, by the plaintiff No. 1, Shyamsundar, acting as the lessor. During the subsistence of the lease, there was a partition between Shyamsundar and Ved bhushan. As a result of the partition, two of the rooms in occupation of the defendant-tenant, marked in green lines, have fallen to the share of shyamsundar, while the other two rooms have been allotted to the share of Ved bhushan. Since Shyamsundar was in need of the portion allotted to his share, both the plaintiffs served a notice determining the lease under Section 106 of the transfer of Property Act and thereafter, brought the present suit under Section 12 (1) (e) of the Act. They alleged that Shyamsundar was in bona fide requirement of the two rooms in occupation of the defendant which have fallen to his share at the partition, for his residential use. However, in the relief clause, they sought eviction of the defendant from the entire demised premises.

(3.) ON these facts, the question for consideration is whether the decree for eviction should be confined to the portion belonging to Shyamsundar. The Court of first instance held that the plaintiffs having pleaded the need of Shyamsundar alone, and as only two rooms out of the tenanted premises are owned by him, the defendant can be evicted from those two rooms only and accordingly, it decreed their claim to that extent. On appeal, the learned Additional District Judge, taking the view that ejectment of the defendant from only two rooms would amount to a partial termination of the tenancy, which is not permissible in law, granted a decree for ejectment of the defendant, from the whole of the demised premises. The learned Single Judge has affirmed that view, holding that the decision of this court in Sakharampant v. K. L. Lodhi, AIR 1953 Nag 265 was a complete answer to the problem.