MEHAR SINGH Vs. GIAN CHAND

JUDGEMENT

(1.) The following substantial question of law arises for consideration in this second appeal:-

(2.) The point raised for contest is squarely covered through the decision of the Supreme Court in M/s. Karta Ram Rameshwar Dass v. Ram Billas and others, 2005 2 RCR(Rent) 643which held that a partition decree cannot defeat the right of the statutory tenants from the other co-owner unless the lease itself is attacked as collusive or in excess of the authority of the co-owner, which has created the lease. Both the courts have not characterized the lease in favour of the defendants themselves to be collusive or fraudulent. They have been found to be trespasser only on the basis of an allotment that had been made to the plaintiffs and not to the share of the tenants' own landlord, who was other co-owner. A circumstance that the partition between the landlord and other members of the family did not bring the allotment of the leased property to the landlord cannot take away the right of the person who is lawfully inducted by one of the co-owners. The finding of both the courts below that the tenants were trespassers being in unlawful possession is not legally tenable and is set aside. The second appeal is allowed, but the co-owners who have been allotted the property that are in the hands of the tenants have a right to seek attornment in their own favour as the landlords who obtained the right by a decree of court and exercise their own right to ejectment in accordance with law under the provisions of the Act, if any other grounds mentioned in the Rent Act are made out. In such eventuality, the rights of the parties will abide by the adjudication made by the competent authorities under the act. The second appeal is allowed, but there shall, however, be no direction as to costs.