ORDER
Murlidher Rao, J.
1. Premises No. 11, Kuppuswami Naidu Street, Civil Station, Bangalore, belonged to Mehboob Khan, who leased the same to petitioner – R. Abdul Salam; Mehboob Khan died in November 1975. He is survived by his wife Ghouse Bi, six sons and three daughters.
2. On 26-5-1980, Ghouse Bi filed the eviction petition under Clauses (a)(b) and (h) of Section 21(1) of the Karnataka Rent Control Act, describing herself, as co-owner of the premises. Subsequently the others namely, sons and daughters were also impleaded as petitioners After contest, the petition is allowed on 7-2-1984, and eviction order is passed, which is the subject matter of this civil revision petition.
3. The tenant after filing the civil revision petition has obtained stay order, enabling him to continue in the premises. In this Court, petitioner-tenant has filed an application on 30th January 1985 stating Noorullah Khan son of Mehboob Khan one of the sharers in the landlords family has sold his undivided right, title and interest in his favour by registered sale deed dated 21st January 1985. Similarly Azeez Khan son of Mehboob Khan, another sharer, has sold his undivided share by registered sale deed dated 6th January 1988. The original sale deeds are produced.
4. Ghouse Bi, denied the execution of these sale deeds. Her share in the property is 1/8th. Petitioner-tenant has purchased 2/15th share. An affidavit of Noorullah is also produced to the effect that he has not executed the registered sale deed. Further, xerox copy of additional objections in H.R.C.8065/1980, is filed wherein it appears Mohammad Aslam, petitioner-tenant has stated that Ghouse Bi is the sole land lady of the petition premises. This fact even if be true is legally unsound. All the sharers having joined these proceedings, they cannot assert that Ghouse Bi is the sole owner. Though Noorullah Khan has filed his affidavit, the document being a registered one, his remedy is to file a civil suit and nullify the legal effect of that deed. At present it holds the field. Three years have elapsed, after its registration.
5. The effect of these two sale deeds is that petitioner-tenant has stepped into the shoes of Noorullah Khan and Azeez Khan, who together hold 2/15th share in the property; to this extent, he is no longer a tenant. As against others, he becomes a tenant-in-common. The property sold is an undivided interest. The tenancy was a single tenancy created by Mehboob Khan in his life time. If a partition is effected, the tenancy will be split, in which event, petitioner-tenant becomes a tenant of that portion of the premises which has fallen to other sharers and he would be the owner in respect of the portions purchased by him. That this is the true legal effect is made clear by their Lordships of the Supreme Court in MOHAR SINGH v. DEVI CHARAN AND ORS., . It is observed thus:
“It is trite proposition that a landlord cannot split the unity and integrity of the tenancy and recover possession of a part of the demised premises from the tenant. But Section 109 of the Transfer of Property Act provides a statutory exception to this rule and enables an assignee of a part of the reversion to exercise all the rights of the landlord in respect of the portion respecting which the reversion is so assigned subject, of course, to the other covenant running with the land. This is the true effect of the words ‘shall possess all the rights….of the lessor as to the property or part transferred’ occurring in Section 109 of the T.P. Act. There is no need for a consensual attornment. The attornment is brought about by operation of law…….”
6. In Mohammedan Law by Mulla under the caption ‘Alienation by Co-sharer before partition’ has cited an authority of Madhya Pradesh High Court wherein it is stated “the alienee obtains a personal right which he is equitably entitled to enforce against the share of his vendors, which can only be done by partition of the entire property” Therefore it follows that the present eviction order is rendered ineffective and inexecutable. The respondents cannot assert that that petitioner, who is now a tenant in common, is a tenant of the whole premises. In the absence of partition and actual division, the tenancy cannot be split, nor the impugned order can be treated as pertaining to a particular portion. An eviction order, under the Karnataka Rent Control Act, cannot be treated as decree for partition.
7. For the aforesaid reasons, this revision petition is allowed, it is declared that the impugned order of eviction is unenforceable and legally ineffective. Petitioner’s possession will have to be continued till appropriate orders are passed -by a competent Court. No costs.