IN THE HIGH COURT FOR THE STATES OF PUNJAB
AND HARYANA AT CHANDIGARH.
C.R. No. 4974 of 2007. [O&M]
Date of Decision: 4th August, 2009.
Gurcharan Singh Petitioner through
Mr. Parveen Kumar, Advocate
Versus
Dharam Singh and others. Respondents through
Mr. C.L.Sharma, Advocate.
CORAM:
HON’BLE MR. JUSTICE SURYA KANT.
1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
SURYA KANT, J. [ORAL)
In this Revision Petition under Article 227 of the
Constitution of India, the petitioner seeks to set aside the order dated
11.10.2006 passed by the Additional Civil Judge [Senior Division],
Dasuya-cum-Executing Court whereby his objections have been
dismissed, as well as the judgment dated 12.09.2007 passed by the
learned Additional District Judge, Hoshiarpur, dismissing the
petitioner’s appeal filed against the afore-stated order.
The undisputed facts may be noticed briefly.
The petitioner was inducted as a tenant vide rent note
dated 17.12.1985 in a shop situated at Old Bank Road, Dasuya, by
Gian Singh who was co-owner of the premises along with his brother
– Dharam Singh. The petitioner-tenant is protected and governed by
the East Punjab Urban Rent Restriction Act, 1949.
The joint properties owned by respondent No. 1 and his
brother Gian Singh were later on partitioned through a civil Court
decree dated 4.1.2003 and the demised premises came to the share
of respondent No. 1 – Dharam Singh.
Respondent No. 1 filed an execution application for
implementation of the partition decree dated 4.1.2003 and obtained a
Warrant of Possession, besides a Local Commissioner, to put him in
actual physical possession of the subject property. When the
petitioner – tenant came to know, he immediately filed an objection
application, inter-alia, claiming protection under the Rent Act, but the
same has been turned down by the Executing Court vide its
impugned order dated 11.10.2006, which has been further upheld by
the learned Additional District Judge also, judgment dated 12.9.2007.
Aggrieved, the petitioner – tenant has approached this
Court.
The solitary question which arises for consideration is, as
to whether a tenant under the Rent Act, can be evicted/dispossessed
in execution of a partition decree passed between the joint owners?
The issue has been authoritatively settled by the Hon’ble Supreme
Court in M/s Karta Ram Rameshwar Dass v Ram Bilas & Ors.,
2006[1] SCC, 125, holding as follows:-
“In view of the foregoing discussion, we hold that in a suit
for partition filed by one co-sharer against another if a
tenant is made party, he can object to the claim for
partition if it is shown that the same was not bona fide
and made with an oblique motive to overcome the rigors
of rent control laws which protected eviction of tenant
except on grounds set out in the relevant statute. After a
partition is effected or a decree for partition is passed, it
would be open to the co-sharers to evict a tenant from
that portion of tenanted premises which had fallen in their
respective shares by filing separate proceedings for
eviction under rent control laws on the grounds
enumerated thereunder. In the present case, the tenant
failed to prove that the claim for partition was not bona
fide. Therefore, final decree in the suit for partition has
been rightly confirmed by the High Court but it was not
justified in reversing decree of the trial court, which
directed that the possession of the tenant could not be
disturbed unless and until proceeding is initiated for its
eviction under the Act, and in ordering for recovery of
possession from the tenant of that portion of the tenanted
premises which had fallen to the share of the plaintiff. In
our view, the trial court was quite justified in directing that
possession of the tenant would not be disturbed and it
can be evicted only in accordance with law by taking
steps for eviction under the provisions of rent control
legislation upon the grounds enumerated thereunder”.
In the light of what has been held in M/s Karta Ram
Rameshwar Dass’s case [supra], no fault can be found with the
partition decree dated 4.1.2003 in terms whereof respondent No. 1
has become owner-cum-landlord of the petitioner – tenant for all
intent and purposes. However, the impugned orders dated
11.10.2006 and 12.9.2007 rejecting the petitioner’s objection against
his physical dispossession from the demised premises in purported
execution of the partition decree dated 4.1.2003 can not sustain and
are hereby set aside. It is held that the petitioner can not be
dispossessed except in accordance with the provisions laid down
under the East Punjab Urban Rent Restriction Act, 1949.
Disposed of accordingly.
August 04, 2009. ( SURYA KANT ) dinesh JUDGE