TRIBHUWANDAS Vs. PREMCHAND

JUDGEMENT

(1.) THIS order will also govern the disposal of C. R. No. 384 of 1963.

(2.) THESE two revision petitions arise out of two suits for ejectment filed by Premchand separately against the petitioners Tribhuwandas and Sarafali on the allegation that the petitioners were in occupation of portions of a house as tenants at the time when the house came to his share in a partition between him and his father Fakirchand, and that he needed the accommodation for his own purposes. Each of the petitioners raised the preliminary objection that in view of the provisions of section 12 (4) of the Madhya Pradesh Accommodation Control Act, 1961, (hereinafter referred to as the Act), the plaintiff's suit for eviction on the ground specified in clause (f) of section 12 (1) was not maintainable as more than one year had not elapsed from the date of the acquisition of property by him. The learned Civil Judge, Second Class, Khandwa, who is trying the suits, overruled the objection on holding that as the house in question was allotted to the plaintiff in a partition, it could not be regarded as any property or accommodation acquired him by transfer, and that therefore, the bar specified in section 12 (4) did not operate. Hence these two revision petitions by the defendant -tenants.

(3.) LEARNED Counsel referred me to several decisions in which the question whether partition is a "transfer of property" under section 5 and 53 of the Transfer of Property Act has been considered. In some decisions it has been held that partition is a transfer of property. In others a contrary view has been expressed. In some case it has been held that even if partition is not a transfer for the purposes of section 53 of the Transfer of property Act, the principle of the section would apply (see Vinayak Shamrao vs. Moreshwar Ganesh, ILR 1944 Nag. 342=AIR 1944 Nag. 44. I do not think any useful purpose would be served by examining those cases when the rule of construction is that the meaning of one section in one Act cannot be ascertained from the meaning and effect of another provision in another Act. When the Court has to construe a positive enactment of a statute, construction founded upon analogy is scarcely permissible. In my judgment, construing the words "acquired" and "by transfer" according to their plain and natural meaning and having regard to the concept and legal consequences of partition in Hindu law, there can be no doubt that when a coparcener gets an item of property in partition there is no acquisition by him of that property by transfer.