BRINDAWAN CHOURASIYA Vs. JAGDISH PRASAD SAHU

JUDGEMENT

(1.) THIS revision under Section 115 of CPC is directed against the order dated 22-9-2001 passed by 14th Civil Judge, Class-II, Jabalpur in C. S. No. 224-A/94.

(2.) NON-APPLICANTS Jagdish Prasad Sahu, Arun Kumar Sahu and Mahendra Kumar Sahu instituted C. S. No. 224-A/94 for eviction of tenant/applicant Brindawan Chourasiya under Section 12 of the M. P. Accommodation Control Act. During the pendency of the suit 1/3rd share in the suit house has been purchased by the tenant/applicant from Mahendra Kumar Sahu vide Regd. Sale Deed 13-5-98. With reference to the dictum laid down in Hafiz Ullah and Anr. v. Smt. Shikhar Chandra Jain and Ors. , 1997 (2) MPJR 258, tenant/applicant filed application under Section 7, Rule 11, CPC for rejection of plaint in C. S. No. 224-A/94. The application was resisted by the non-applicant on the ground that the suit for seeking partition since has been instituted by tenant/applicant himself, C. S. No. 224-A/94 would not entail dismissal. Civil Judge vide impugned order has held that 1/3rd share in the suit house has been purchased by the tenant/applicant during the pendency of the suit and non-applicant Jagdish Prasad, Arun Kumar are owners to the extent 2/3rd share. Since the suit for partition C. S. No. 21-A/98 filed by the tenant/applicant in the Court of 9th ADJ, Jabalpur has been decreed vide judgment dated 30-4-2001 and preliminary decree has been framed, there is no necessity to reject the plaint under Order 7 Rule 11, CPC, instead stay of proceedings in C. S. No. 224-A/94 pending the final decision in C. S. No. 21-A/98 has been ordered.

(3.) IN the judgment Hafiz Ullah and Anr. v. Smt. Shikhar Chandra Jain and Ors. , 1997 (2) MPJR 258, it has been held that where defendant (tenant) himself has become co-owner albeit of undivided portion of the house how can he be evicted. The Division Bench decision of this Court in Smt. Hameeda Begam v. Smt. Champa Bai and Ors. , C. R. No. 1676/2001, makes the law more clear on facts and circumstances of the instant case. It has been held that:-If a tenant who has purchased the property from a co-owner and gets into the shoes of the co-owner need not file a suit for partition and separate possession and there is no obligation on his part to handover possession and thereafter sue for partition and separate possession. Any co-owner who wants to have possession, by meets and bounds may file a suit for partition and claim separate possession and thereafter seek eviction of the tenant from the part of reversion falling to his share after partition.