JUDGMENT
B.P. Dharmadhikari, J.
Page 3550
1. Writ Petition 1736 of 1996 is filed by landlord Shri Ganesh while Writ Petition 1933 of 1996 is filed by tenant Shri Vinayak. The parties will be referred to as landlord or tenant to avoid confusion. Landlord filed two proceedings or cases contending that tenant is in arrears of rent and habitual defaulter for two different periods. The Rent Controller functioning under C.P. and Berar Rent Control Order,1949 (hereinafter referred as Rent Control Order), granted permission only under Clause 13 (3) (i) finding tenant to be in arrears of rent in both matters. The permission sought for under Clause 13 (3) (ii) on the ground of habitual default was rejected in both cases. Page 3551 Against this common Order dated 31st March 1994 both landlord and tenant filed their respective appeals before Additional Collector, Akola which is appellate authority under Clause 21 of Rent Control Order. Thus there were total four appeals before Appellate Authority and on 29/1/1996 by common Order it dismissed all these appeals. Landlord has filed his own petition (1736/ 1996) challenging rejection of permission on the ground of habitual defaults while Tenant has filed writ petition 1933 of 1996 challenging the permission granted under Clause 13(3) (i). Rule has been issued in writ Petition 1736/1996 on 26/8/1996 while Rule has been issued in other writ petition on 23/10/1996 and stay of possession has been given to tenant by ordering his writ petition to be heard with writ petition of landlord.
2. Premises in possession of tenant consist of two rooms with kitchen, varandah, bathroom and latrine. The landlord has described the premises in two parties 1A and 1B, and user of bathroom and latrine has been mentioned to be incidental. This is on account of fact that entire tenanted premises have been latter on purchased by two different persons after partition in the family of original landlord Himmatlal. Landlord mentioned that two rooms with kitchen, varandah with incidental user of bathroom and latrine are in occupation of tenant as monthly tenant at rate of Rs 150/ per month. It is mentioned that the premises were rented out without any electrical fittings and/or water connections. On 14/8/1990 Himmatlal is stated to have effected partition and portion above came to share of his daughter-in-law by name Kiran w/o Pramod & accordingly Himmatlal informed the same to tenant. On 24/1/1991 Smt. Kiran sold the premises to landlord Ganesh and this was communicated to tenant vide notice dated 14/2/1991. Tenant was informed that he has to pay rent from February 1991 onwards to said new landlord. The tenant however did not abide by instructions and hence on 9/10/1991 landlord called upon tenant to clear all arrears up to date but tenant did not accept that notice and hence, complaining of arrears from February 1991 till October 1991 totaling Rs. 1350/-only, landlord filed Rent Control case number 8/91 –92 before Rent Controller at Akot, and sought permission to terminate tenancy under Clauses 13 (3) (i) and (ii) of Rent Control Order. During pendency of these proceedings, making similar allegations he filed identical proceedings vide case number 2/92 –93 in relation to period from November 1991 till August 1992 pointing out that arrears of Rs 1500/ only for said 10 months have not been cleared. He stated that thus on the date of filing of that application total arrears for 19 months i.e. period covered in both cases worked out to Rs 2850/- only.
3. Both applications were opposed by tenant Vinayak who pointed out that entire premises including bathroom and latrine were let out to him and there was no question of splitting up the same. He accepted the Rent of Rs 150/-per month but stated that it was inclusive of electric charges and water charges as also municipal taxes. Partition allegedly effected by Himmatlal was denied and it was stated that daughter-in-law Kiran could not have any share in partition and she could not have sold any portion to landlord. Notice dated 14/2/1991 was denied and tenant stated that he forwarded rent by Page 3552 money order to original landlord Himmatlal up to date. It was stated that even after alleged partition Himmatlal continued to receive the rent. Tenant also denied notice dated 9/10/1991. He also pleaded that Himmatlal came and collected the rent as per his convenience and because of this practice, tenant was not habitual defaulter. Arrears were also denied. It was also stated that landlord has not established his ownership over suit premises.
4. Parties lead their respective evidence and after appreciating that evidence, Rent Controller noted that original landlord Himmatlal effected partition on 14/8/1990 and premises in suit fell to share of Kiran w/o Pramod…. The partition and change of ownership has been duly intimated to tenant and subsequent purchase by present landlord on 24/1/1991 was also intimated to him on 14/2/1991. He also found that arrears of rent were also communicated to tenant. Rent Controller also found that in earlier order dated 30/8/1992 passed by him in case Number 3/1990-91 between Vinayakrao v. Himmatlal and Ganesh, rent of Rs 150/-payable per month was found to be inclusive of electric charges, water charges and municipal tax. Rent Controller found that landlord established title because of registered sale deed and amount of rent is also decided in earlier proceedings. It therefore found that rent for more than three months i.e. from February 1991 onwards was admittedly in arrears. He therefore directed tenant to pay all arrears for the period from February 91 to August 92 amounting to Rs 2850/-only within one month and in default granted permission under Clause 13 (3) (i). The claim for permission under Clause 13 (3) (ii) was rejected as not proved in view of judgment of Hon Apex Court in case of Rasiklal reported at 1989 Mh.L.J. 207. He also rejected permission to join Shri Tukaram Lonkar, father of landlord Ganesh as party in the proceedings as Tukaram also purchased portion of tenanted premises from original landlord Himmatlal.
5. Landlord filed two separate appeals under Clause 21 of Rent Control Order aggrieved by rejection of permission under Clause 13 (3) (ii) while Tenant filed two appeals against part of order granting permission under Clause 13 (3) (i). Both these appeals have been heard and decided together & Appellate Authority maintained the reasoning put forth by Rent Controller. That is how, both landlord and tenant have filed separate writ petitions and are before this Court.
6. I have heard Advocate Shri Thakkar for Landlord and Advocate Shri Panpalia for Tenant in both petitions. Learned AGP has appeared for respondent No.2 Appellate Authority in writ petition 1736/1996.
7. Advocate Shri Thakkar for Landlord has argued that in present case the lower authorities lost sight of the fact that landlord purchased the premises on 24/1/1991 and tenant was directed to attorn in favour of new landlord Ganesh on 14/2/1991. In spite of this when tenant did not pay rent till 9/10/1991, landlord demanded rent by registered notice dated 9/10/1991 and still, admittedly, rent was not paid. He therefore urges that judgment of Hon Apex Court in case of Rasiklal (supra) is not attracted here and permission under Clause 13 (3) (ii) ought to have been granted. He further states that unnecessarily the tenant is Page 3553 mixing up issue of electricity and water connection and is trying to justify non-payment though no such defence was raised in written statement. According to him service of notice dated 14/2/1991 and filing of two consecutive proceedings before Rent Controller and admitted fact of non-payment of rent was sufficient to conclude the issue and permission as prayed for ought to have been granted in favour of landlord. He further argues that defence raised by tenant in this petition before this Court cannot be looked into and title of Kiranbai cannot be questioned here. Alleged offering of rent to Himmatlal is irrelevant and issue of splitting of tenancy between landlord Ganesh and his father Tukaram is again irrelevant. He further states that challenge to grant of permission under Clause 13 (3) (i) on the ground that said permission has been communicated to tenant by post on 1/6/1994 is again misconceived and, in any case, the said issue can be looked into only by Civil Court in eviction suit filed vide Regular Civil Suit 215/94. He invites attention to provisions of Clause 13 (8) of Rent Control Order to state that law relating to housing tenancy as applicable in this part of Maharashtra permits landlord to determine tenancy even in relation to portion of tenanted premises and there is no bar upon splitting of tenancy. He has also invited attention to the fact that proceedings under Clause 11 of Rent Control Order filed by tenant for restoration of user of bathroom and latrine against Himmatlal, this landlord and father Tukaram are already rejected by Rent Controller on 12/11/1997. He further states that the tenant thereafter has shifted to Radhe–Radhe Complex at Sarafa line in Akot only where he is staying with his two sons. Tenant has left the tenanted premises since January 1998 and he has also accordingly applied to Maharashtra State Electricity Board for “no use” certificate and since then there is no electric supply to tenanted premises which show that tenant is not occupying it. According to him, in these circumstances the petition filed by landlord needs to be allowed while one filed by tenant needs to be rejected. He has invited attention to various cases to which reference will be made little latter.
8. Advocate Shri Panpalia for Tenant states that reliance upon order dated 12/11/1997 is totally misconceived because application under Clause 11 there has been rejected on the ground that there was no landlord –tenant relationship between tenant and Tukaram. He invites attention to said order in an attempt to show that the Rent Controller has recorded that there was no agreement about repairs with new landlord Ganesh or his father Tukaram. He further states that disconnected electric or water connection was not restored by Himmatlal or by Ganesh (present landlord). He further states that premises were split only with oblique motive and Himmatlal initially partitioned them between himself and his daughter-in-law. Thereafter Himmatlal and Sau. Kiran executed different sale deeds in favour of Ganesh and Tukaram on successive days i.e. 24/1/1991 & 25/1/1991. He further states that Tukaram did not file any proceedings for permission against tenant but it is landlord (Ganesh) who alone filed such proceedings. The tenant had continued to pay rent to Himmatlal who also accepted it and rent was inclusive of electric and water charges which facilities were discontinued and never restored in spite of of order of Rent Controller dated 30th of August 1993. He argues that various findings recorded in this Page 3554 order operate as res-judicata and the aspect is lost sight of while granting permission to landlord under Clause 13 (3) (i). As rent was not apportioned because of part purchase by landlord and as facilities were not restored, Rent Controller could not have granted permission. He argues that partition dated 14/8/1990 was bogus and ought to have been ignored by both lower authorities. It is his stand that such splitting of tenancy unilaterally was illegal and proceedings filed by landlord Ganesh were not maintainable. He has also relied upon various decided cases in this respect.
9. The order of Rent Controller in present matter is dated 31/3/1994 while appellate order is dated 29/1/1996. Prior to this, there is order dated 30/8/1993 passed by Rent Controller in case No 3/90 –91 in proceedings under Clause 14 of Rent Control Order instituted by tenant Vinayak and earlier landlord Himmatlal as also present landlord Ganesh were parties thereto. Apart from this, landlord has pointed out one more order i.e. dated 12/11/1997 in case No 1/94 –95 again filed by Vinayak against Himmatlal, Ganesh and Tukaram. This order is subsequent to both orders impugned in present writ petition and is filed in proceedings under Clause 11 of Rent Control Order. The first order between parties is therefore dated 30/8/1993 and Rent Controller has relied upon this order in his order dated 31/3/1994. This order has been relied upon to hold that rent of Rs 150/-per month was inclusive of electric charges, water charges and municipal taxes and to hold that there was relationship of landlord and tenant between parties thereto. It will therefore be appropriate to first consider the controversy in the light of this order.
10. Clause 14 of Rent Control Order prohibits landlord from interfering with electric fittings or water connections so as to affect materially the enjoyment of house by tenant. Clause 14A prohibits landlord from taking any steps for discontinuing the supply of water or electricity of tenant without previous permission of Rent Controller. Clause 16 (1) enables Rent Controller to direct landlord on an application of tenant to repair electric installation or water connection within reasonable time. Present tenant Vinayak, earlier landlord Himmatlal and present landlord Ganesh were all parties to these proceedings under Clause 14. The Rent Controller recorded that in spite of partition dated 14/8/1990, Himmatlal accepted rent from tenant through money order for subsequent period. He further recorded a finding that agreed monthly rent was Rs 150/ only and it was inclusive of electric charges, water charges and municipal taxes. It further found that tenant was not in arrears on the date of filing of application under Clause 14 as Himmatlal refused to accept rent through money order for the month of November 1990 and onwards. It also found that during pendency of proceedings before it, Ganesh became landlord and new landlord cannot deny his obligations towards tenant. Rent Controller therefore directed the owners to restore facility of electric and water connections and threatened with criminal prosecution as per Clause 28 of Rent Control Order in default. This order has attained finality. It is accepted position that electric or water supply has not been restored even thereafter.
Page 3555
11. It is no doubt true that tenant has not refused his obligation to pay rent on the ground that water supply or electric supply has not been restored. However, he has contended that his single tenancy in relation to entire tenanted block cannot be split into two unilaterally. Perusal of examination in chief of tenant however reveals that tenant has deposed about it in his examination in chief and he also pointed out and proved judgment dated 30/8/1993. He has specifically deposed that every month he is forwarding rent by money order to Himmatlal and that was being done even on the date of his deposition. In his examination in chief he has further stated that though landlord Ganesh could not have purchased part of tenanted premises and though grant of share to his daughter-in-law Sau. Kiranbai by Himmatlal was not legal, he was ready and willing to pay rent to landlord Ganesh under protest. Even in his cross examination he has reiterated this fact. This dispute or its nature is not considered either by Rent Controller or by Appellate Authority while granting permission to landlord under Clause 13 (3) (i). Even in impugned order, Rent Controller has found that rent of Rs 150/ per month was/is inclusive of water, electric charges and municipal taxes. The effect of not restoring facility of electricity or water or non-compliance with its judgment dated 30/8/1993 by landlord however has not been considered by Rent Controller or by Appellate Authority. It is obvious that any tenant would have been justified in refusing to pay rent to his landlord in such situation.
12. Two rooms, attached kitchen, Varandah and courtyard having separate bathroom and latrine constituted tenanted premises. Monthly rent for entire premises is Rs 150/-only. Himmatlal divided these premises between himself and Sau. Kiran and then two separate parts were purchased by son Ganesh (landlord) and father Tukaram. Tukaram purchased portion holding bathroom and latrine while, remaining rooms/portion has been purchased by landlord Ganesh. Ganesh alone filed proceedings against tenant Vinayak and his father Tukaram has not instituted any such proceedings. Landlord Ganesh has not shown that rent of Rs 150/ per month was apportioned in any way between himself and his father Tukaram. He was not entitled to recover entire rent of Rs 150/-as he was not owner of whole tenanted portion. This aspect of the matter which fell for consideration of Rent Controller is again not addressed to either by him or by Appellate Authority. Last para or third para of Section 109 of the Transfer of Property Act, 1882 (TP Act) expressly requires the earlier landlord Himmatlal, transferee from him (present landlord) Ganesh and lessee/tenant Vinayak to determine proportion of rent payable by tenant to landlord and till that is done or appropriate contract in this respect is pleaded and proved by landlord, landlord cannot demand whole rent of Rs 150/ or any rent from tenant. Said part of Section 109 also shows that if parties disagree about such determination, it is to be done by Court having jurisdiction to entertain a suit for possession of property leased. Both applications filed by landlord conspicuously lack these details. No contract for rent after purchase only of portion by landlord has been pleaded. It is therefore apparent that the right to recover rent from tenant is not established by landlord. In the circumstances, permission even under Clause 13 (3) (i) could not have been granted by Rent Controller to landlord.
Page 3556
13. Now subsequent order dated 12/11/1997 in case No 1/94 –95 again filed by Vinayak against Himmatlal, Ganesh and Tukaram needs to be looked into. These proceedings are stated to be under Clause 11 of Rent Control Order but appear to be under Clause 16 because Rent Controller has at the end of opening para stated that tenant Vinayak contended that estimated cost of repairs was Rs. 2500/-and he requested Rent Controller to direct all non-applicants before it to carry out that repair work. Himmatlal appears to have taken stand that bathroom was not included in tenanted premises and there was no obligation to look after its repair work. He further stated that tenant was in arrears of rent and could not have filed proceedings for repair. Ganesh took defence that tenant is not residing in said house since about three years (then) while Tukaram took defence that Vinayak was not tenant of portion purchased by him on 25/1/1991. He found that there was no specific mention about rent being inclusive of electric, water charges or municipal taxes in receipts issued by Himmatlal. He further found that tenant was having no agreement about repairs with Ganesh or Tukaram and Himmatlal had no concern with tenanted premises. He also recorded that there was no relationship between tenant and Tukaram. He also observed that tenant failed to show any relationship qua latrine or bathroom with landlord Ganesh. He further found that tenant was in arrears of rent. Thus, entire reasoning in this order which is latter in point of time than orders impugned in this writ petition is entirely different and does not have any bearing on findings already recorded above by this Court or by lower authorities in their earlier orders.
14. Learned Advocate for tenant wanted to argue about subsequent conduct of Himmatlal and landlord to show that they were acting malafide with a view to victimised him. By placing reliance upon judgment of Hon Apex Court in case of of Modern Hotel v. K. Radhakrishnaiah reported at , effort was made to show that in appropriate cases, Court can deny relief to landlord if this conduct is contrary to law. Paragraph 10 of this judgment shows that landlord who had received substantial sum as advance contrary to law wanted a decree for eviction on the ground of arrears of rent without adjusting or accounting for this advance. No ratio on lines as sought to be argued by learned Counsel for Tenant can be culled out from this ruling. However, I find that if landlord establishes the necessary ingredients to seek permission under Clause 13 (3) (i) (ii) of Rent Control Order, the malafides or bonafides will not be relevant. In any case, here, it is not at all necessary to scrutinize such subsequent conduct. Similarly landlord wanted to show that tenant is residing elsewhere and for that purpose also wanted to rely upon “no use” certificate and computer sheets showing minimum electric charge levied by Maharashtra State Electricity Distribution Company Ltd. However, these subsequent events do not have any bearing on Clauses 13 (3) (i) (ii) and hence, are not relevant here. Tenant also wanted to show that he has deposited entire arrears by obeying the directions issued by Rent Controller in terms of Clause 13 (3) (i). This was objected to by learned Counsel appearing for landlord who contended that Page 3557 issue is now under consideration in Second Appeal filed before this Court by tenant. It is apparent that after holding tenant in arrears and after giving him time to deposit those arrears, law takes its own course and Rent Controller becomes functious officio. Question whether amount deposited by tenant is or is not within time therefore is relevant in Civil Suit filed by landlord for eviction of tenant on the strength of such permission and parties have to prove existence or otherwise of such permission in that suit only. This cannot be demonstrated in present petition.
15. Advocate Shri Panpalia for Tenant has contended that tenancy of tenant Vinayak has been split unilaterally in contravention of law. He has made reference to Section 109 of T.P. Act in support. Advocate Shri Thakkar for Landlord has however contended that such splitting is not prohibited by any law in this part of state of Maharashtra and permitted by Clause 13 (8) of Rent Control Order. Details of how single tenanted block has been sold to two persons have already been mentioned above. Present landlord Ganesh has purchased rooms while his father Tukaram has purchased latrine and bathroom. Partition of single tenanted block between himself and his daughter-in-law by Himmatlal appears to be after some dispute between landlord Himmatlal and his tenant. What is relevant for present purposes is a residential block of two rooms, attached kitchen, Varandah and courtyard having separate bathroom and latrine constituted tenanted premises. For residence, residential accommodation as also bathroom and latrine are indispensable and by its very nature, tenancy is single and indivisible. Stand of landlord Ganesh in relation to bathroom and latrine has already come above while stand of Tukaram in this respect is also stated above. Actually two different persons have purchased two different portions of tenanted block. Tukaram has not filed any proceedings for seeking permission to evict tenant from portion purchased by him. Landlord Ganesh is seeking eviction from rooms purchased by him. If permission is given to Ganesh, portion of Tukaram would be useless for tenant and vice versa. Possession of both potions is essential for tenant to enjoy tenancy. If Ganesh is permitted to evict tenant, such eviction shall be only partial and hence, tenancy stands split. There is no findings recorded in this respect either by Rent Controller or by Appellate Authority.
16. Law on this point is contained in Section 109 of TP Act which reads as under:
109. Rights of lessor’s transferee:If the lessor transfers the property leased, or any part thereof, or any part of his interest-therein, the transferee, in the absence of a contract to the contrary, shall possess all the rights and if the lessee so elects, be subject to all the liabilities of the lessor as to the property or part transferred so long as he is the owner of it; but the lessor shall not, by reason only of such transfer cease to be subject to any of the liabilities imposed upon him by the lease, unless the lessee elects to treat the transferee as the person liable to him; Provided that the transferee is not entitled to arrears of rent due before the transfer, and that, if the lessee, not having reason to believe that such transfer has been made, pays rent to the lessor, the lessee shall Page 3558 not be liable to pay such rent over again to the transferee. The lessor, the transferee and lessee may determine what proportion of the premium or rent reserved by lease is payable in respect of the part so transferred, and, in case they disagree, such determination may be made by any Court having jurisdiction to entertain the suit for the possession of the property leased”.
Another important provision is contained in Clause 13 of Rent Control Order. Clause 13 (1) requires landlord to obtain previous written permission of Rent Controller before giving notice under Section 106 TP Act. Sub clause (2) requires landlord seeking such permission to apply in writing to Rent Controller. Relevant portion of Sub clause (3) reads as under:
(3) If after hearing the parties the Controller is satisfied-
(vi) that the landlord needs the house or portion thereof for the purpose of-
(a) his bonafide occupation, provided he is not occupying any other house of his own in the city or town concerned; or (8) When a landlord applies to the Controller under item (vi) of Sub clause (3), the Controller shall inquire into the needs of the landlord and if on inquiry the Controller is satisfied that the needs of the landlord will, be met by occupation of a portion of the house, he shall give permission in respect of such portion only.
17. At this stage it will be proper to understand how various cases relied upon by parties have explained the application of this law. Daulatsing v. State of Bombay and Ors. reported at 1957 N.L.J. 625 is relied upon by Tenant. It considers the effect of Section 109 of TP Act on agricultural leases. Division Bench in paragraph 5 found that entire leased land was 15 acres and 20 gunthas while the transferee wanted to terminate tenancy in relation to portion purchased by him i.e. 10 acres. In other words he wanted termination of part of lease. It held that Section 109 does not permit severance of lease in the manner contended by transferee and only new right coming into existence upon such transfer was right to apportionment of land. Transferee also contended that one of the rights of transferor was to terminate the tenancy of the lessee and said right passed to the transferee because of transfer. Division Bench rejected this by observing that:
But it has to be borne in mind that while the transferor had a right to terminate the entire tenancy, he never had a right to terminate only part thereof. What would pass to the transferee, therefore, consequent on the transfer, would be only such right as the landlord unquestionably had and not something which the landlord never had. No new right to terminate the part of tenancy came into being by virtue of a transfer.
Dr. Amar Prosad Gupta v. Arun Kumar Shaw reported at is the other Division Bench ruling which holds that one coparcener who gets part of tenanted premises upon partition cannot maintain his suit to evict lessee only from his portion. While holding so, in paragraph 9 after noticing that there was apportionment of rent between plaintiff and his Page 3559 brothers, the Division Bench observes that such respective share of rent where subject to final adjustment between brothers at a future date. It is thereafter observed:
9. Our attention date {Ext. B (1)}. There was, however no final adjustment of the rate of rent. But even assuming that there was an apportionment of rent as contended on behalf of the appellant, such apportionment, in our opinion had not be effect of severing the tenancy. Under Section 37 of the TP Act the tenant is bound to apportion rent. The third paragraph of Section 109 also provides for apportionment of rent by mutual agreement among the lessor, the transferee and the lessee, failing which the same may be made by the Court. The relationship of landlord and tenant arises out of a contract. A contract between the defendant and his erstwhile lessors, namely, the plaintiff and his coshearers was in respect of the whole of the premises. It is not understandable how after partition there can be new tenancies in respect of different parts of premises allotted to the co-shearers without fresh contracts with the tenant. It is not the case of plaintiff appellant that there has been a fresh contract between him and the defendant whereby a fresh tenancy has been created in respect of the part of the premises allotted to the plaintiff. In these circumstances, we are unable to accept the contention that as there had been an apportionment of rent, the tenancy was split up and new tenancy came into existence for the part of the premises allotted to the plaintiff
In Maharaja Keshava Prasad v. Mathura Kuar reported at 1922 Patna 608 (1) and relied upon by learned Counsel for Tenant, Division Bench found that suits were for rent of holdings of defendants, the holdings being described by certain survey numbers. These survey numbers however, did not represent the whole of the holdings and Division Bench noticed that decreeing such suit would have the effect of splitting up of tenancy without any ascertainment of the portion of the rent which was due from particular portion of the holdings for which rent was claimed. Court therefore upheld dismissal of suits.
18. Advocate for Landlord has cited judgment of this Court reported at 1978 Mh.L.J. (NOC) 7 Bashir Khan v. Ulphatbi to urge that in present circumstances provisions of Section 37 and 109 of TP Act effect severance of tenancy and landlord became entitled to possession of portion purchased by him. The original judgment was called for and facts discussed therein reveal that the portion occupied by petitioners was so located that after its purchase by petitioners and respondents, it was divided into two portions. One portion became part of property purchased by respondents while the other portion became part of property purchased by petitioners themselves and there was severance of rented premises. There was no apportionment of rent. The respondents thereafter filed proceedings before Rent Controller under Clause 13 (3) (ii) (v) (vi) (vii) and (ix) of Rent Control Order. Petitioner tenant raised various grounds in defence and one ground was that the tenancy had not been split up and therefore permission could not be sought with respect to only part of tenanted premises. The Rent Controller as also Page 3560 Appellate Authority recorded a finding that portion in occupation of petitioner was bonafide required by respondent and hence permission was given to respondent. Petitioner tenant then approached this Court. The contention considered by this Court is whether permission to terminate tenancy of part of tenament cannot be granted. This court has considered Section 37 and Section 109 of TP Act and observed that upon transfer of lease or property in favour of two separate persons, there would be severance of assets and rent can be apportioned suitably by parties amicably or by Court. It is observed that:
It would thus be clear that as soon as the respondents purchased a part of leasehold property, and particularly when the other part became of ownership of the petitioner, the respondents would be the lessors of the part now in position of the petitioner, as a tenant. There is thus a split up of tenancy and the necessary result is that suits portion will be treated as separately possessed by the petitioner as a tenant of the respondents. The respondents have applied for permission to terminate the tenancy of that part. I do not think that there is any irregularity or illegality in making such claim.
Writ petition was accordingly dismissed. Ram Chandra Singh v. Ram Saran and Anr. reported at is also cited by Landlord. There the tenant was inducted in joint family property and plaintiffs obtained separate possession of their share in tenanted premises after partition decree. Thereafter they proceeded to terminate the tenancy and trial court decreed their suit. Appellate court however held that the plaintiff were not landlords and were not entitled to file suit. The plaintiff’s thereafter approached High Court in second appeal. In paragraph 6, High Court has stated the question for consideration was as to whether the plaintiff’s became landlords of the portion of the house on rent with defendants which fell in their share in the partition suit and whether they were entitled to obtain the decree of ejectment of defendants from that portion of house. The lower appellate court had placed reliance upon judgment of Patna High Court in case between Nepur Kaur v. Bhan Pratap reported at A.I.R. 1935 Pat. 227 wherein said High Court observed that the rent payable was not divisible being a lump rental in respect of entire holding. The holding can be broken up and rent apportioned with the consent of all the parties concerned. Allahabad High Court found that in Korapalu v. Narayana A.I.R. 1915 Madras 313, Division Bench of Madras High Court has after referring to various earlier judgments, concluded that one of the joint lessors can, after partition, sue for possession over his share of leased property. In Badri Prasad v. Shyam Lal Jaiswal, Patna High Court found that principles of Sections 37 and 109 of TP Act applied to partition decrees also and single obligation of lessee to pay rent to lessors under the lease is converted into several obligations to pay rent to the lessors individually. After noticing all this case law, in paragraph 8, the Allahabad High Court has found that if one of the co-owners after partition can sue the tenant for his share of rent, there is no reason why he can also not sue for ejectment of the tenant from his portion of the house. Said High Court felt that if view of lower appellate court was to be accepted it would result in anomalous situation. It expressed that joint owners leasing out Page 3561 their property and thereafter developing some differences, may never agree to serve a joint notice on tenant and then it would not be possible to evict tenant at all. Accordingly, Second Appeal was allowed.
Judgment of this Court in Dhannalal v. Additional District Magistrate reported at 1984 Mh.L.J. 959 is pointed out by landlord to state that Clause 13 (1) or any other sub-clause there of does not deal with all eight modes of determination of lease specified in Section 111 of TP Act. The judgment has no relevance here. Judgment in case of Krishna Gopal v. Laxminarayan reported at is also cited. However, it only finds tenant whose latrine and bathroom continued with original landlord and other portion was transferred to new person is entitled to claim said facility from his earlier landlord. Thus, the question of termination of tenancy upon split has not been considered there. But Full Bench judgment reported at between Sardarilal v. Narainlal and decision of Hon Supreme Court –Moharsingh v. Devi Charan reported at have been relied upon to observe that Section 109 TP Act is statutory exception to the unity and integrity of the tenancy and effects the severance or split of tenancy on a transfer by sale of a part of accommodation given on lease.
19. In Habibunnisa Begum v. G. Doraikannu Chettiar, the position is explained as under:
2. The only question that arises in this case is as to whether it was open to the High Court to split the single tenancy by ordering partial ejectment of the tenant from the premises let out to him. In S. Sanyal v. Gian Chand , it was held that where a contract of tenancy was a single indivisible contract and in the absence of any statutory provision to that effect, it is not open to the Court to split the tenancy. Law, therefore, is that where there is a single indivisible contract of tenancy, it cannot be split by a Court unless there is statutory provision to that effect. In the present case it is not disputed that the contract of tenancy is single indivisible contract for Door Nos. 27 and 28. It is also not disputed that there is no provision in the Tamil Nadu Buildings (Lease and Control) Act empowering the Court to order partial ejectment of a tenant from the premises by spliting the single indivisible tenancy. For these reasons it was not open to the High Court to split the tenancy and ordered for partial ejectment of the tenant from the premises.
The Supreme Court in the case of Mohar Singh v. Devi Charan, (supra), has considered the splitting of tenancy and held that when two shops were leased by co-owners and on partition one shop goes to the share of one of the co-owners, then action for eviction of tenant can be taken by one of the co Page 3562 owners without impleading another co-owner. There two adjacent shops were owned by the co-owners and those two shops were with one tenant under a single lease. On partition, one of the shops came to the share of one co-owner. The Supreme Court in such circumstances held that on partition the coowner transferee became the exclusive owner of one of the shops which came to his share. Therefore, there was no question of splitting of tenancy. On proof of bona fide need, the transferee-landlord was entitled to evict the tenant and there was no necessity of joining another co-owner in the action. Division Bench of M.P.High Court has in the case of B.P. Pathak v. Dr. Riyazuddin Haji Mohammad Ali considered the above referred judgment Daulatsing v. State of Bombay and Ors. (supra) relied on by Advocate Panpalia for Tenant. In view of Apex Court rulings in case of Mohar Singh v. Devi Charan, and Habibunissa Begum (supra), I do not find it necessary to refer to it at length. Only conclusions drawn in last paragraph are sufficient. Said paragraph reads:
28. The above discussion leads to the following conclusions:
(1) It is settled law that in absence of a specific provision in the statute, the tenancy cannot be split up by one of the parties without the consent of the other. The Court or the Rent Controlling Authority also cannot split of the tenancy. The lessee can be ejected from the whole of the demised property or not at all. Miss S. Sanyal v. Gainchand and Shantaram v. Shyam Sunder .
(2) If there is a specific provision which gives the Court or the Rent Controlling Authority power to split up the tenancy, the statute will override; for instance Clause 13 (8) of the C.P. and Berar Plating of Houses and Rent Control Order, 1949. [ Nathulal v. Ratansi ].
(3) If the lessor transfers any part of property leased, the transferee by virtue of Section 109 of the Transfer of Property Act acquires all the rights of lessor in respect of that “part of the property”. This means that the transferee possesses all the rights in that part of the property as if it had alone originally been comprised in the lease. If not already determined, the transferee is entitled to determine the lease and sue for ejectment.
(4) If the lessor transfers any part of his interest in the property leased, the transferee becomes a co-lessor and as such, the transferee alone cannot determine the tenancy or sue for ejectment without the other co-owner a joining him or unless and until the transferee gets a partition effected.
(5) For the purposes of Section 109, a partition is transfer of the part of the property allotted to each coowner. It automatically splits up the tenancy.
(6) Section 109 creates statutory atonement and has the same effect as if the lessee by contract attorns to the lessor’s transferee in respect of property transferred (whole or part, as the case maybe).
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(7) Although the wording of Section 140 of the English Law of Property Act, 1925 it is somewhat different from that of Section 109 of our Transfer of Property Act, the effect of two provisions is the same.
(8) The right of ejectment is inherent in ownership.
(9) A transferee of a part of property leased can determine the lease in respect of the part transferred, in any of the circumstances enumerated in Section 111 of the Act and sue for ejectment. There is nothing to restrict this right of ejectment to cases where the lease had been determined before the transfer or to cases where the lease is determined by the efflux of time.
Daulatsing v. State of Bombay and Ors. reported at 1957 N.L.J. 625 is relied upon by Tenant deals with agricultural lease and has not considered provisions of Clause 13 (8) of Rent Control Order. In view of the judgment of Hon Apex Court–Mohar Singh v. Devi Charan, (supra), and the above judgment of Division Bench of M.P. High Court in B. P. Pathak v. Dr. Riyazuddin Haji Mohammad Ali (supra),also the judgment learned Single Judge of this Court in case of Bashir Khan v. Ulphatbi (supra) and of Hon.ble Apex Court in Habibunnisa Begum v. G. Doraikannu Chettiar (supra), I find that provisions of Clause 13 subclauses (3)(vi) and (8) of Rent Control Order read with Section 109 of TP Act permit Landlord to seek partial eviction and therefore permission from Rent Controller even in relation to that portion of entire tenanted premises which are purchased by him. Splitting of tenancy & eviction of tenant from portion purchased is not prohibited here. It was not necessary for Tukaram to join Ganesh or to file separate proceedings before Rent Controller to seek permission to seek tenant.s eviction from entire premises let out earlier by Himmatlal. In provisions of Clause 13 (3) (vi) reproduced above clearly contemplate grant of permission to landlord even if he bona fide needs and claims only portion of tenanted premises. Not only this, Clause 13 (8) also enables Rent Controller to restrict permission sought by landlord only to portion of tenanted premises if he satisfied that need of landlord would be met by occupation of such portion. Hence, I do not find any substance in arguments of learned Counsel for tenant that the tenancy could not have been split and landlord Ganesh could not have sought permission to evict tenant only from portion of entire tenanted premises. Because of transfer and operation of Section 109 of TP Act, severance is brought about automatically and apportionment of rent is not “sine qa non” for seeking such permission.
20. However, here permission sought is under Clause 13 (3) (i) and (ii) of Rent Control Order where landlord has to demonstrate that tenant was in arrears of rent of at least three months on the date of filing of application before Rent Controller and is habitually in default/arrears. This cannot be done unless and until contract to pay rent to transferee of only portion of leasehold premises from original lessor is established. In present case there Page 3564 is no such pleading and proof. Both the authorities have declined permission under Sub-clause (ii) and found that tenant cannot be said to be habitually in default. From discussion above, it is apparent that permission could not have been granted even under Clause 13 (3) (i) as obligation to pay specified rent amount itself for smaller portion purchased by new landlord i.e. Ganesh has not been established. Finding is rent of Rs 150/ only per month was for original leasehold and it was inclusive of water charges, electricity charges and municipal taxes. Finding is that water connection or electric connection was not restored despite directions dated 30/8/1993 to the landlord.
21. In the result, Writ Petition 1736 of 1996 filed by landlord Shri Ganesh stands dismissed while Writ Petition 1933 of 1996 filed by tenant Shri Vinayak is allowed. Impugned orders of Rent Controller and Appellate Authority challenged therein are hereby quashed and set aside. Both applications filed by landlord before Rent Controller are dismissed. Rule made absolute accordingly in Writ Petition 1933 of 1996. Rule stands discharged in Writ Petition 1736 of 1996. However, in the circumstances there shall be no order as to costs.