Shabbir Ahmed v. Syed Mohammad Ali Ahmed Kabir

Sunita Agarwal, J.

1. Heard Sri Manish Kumar Nigam, learned counsel for the petitioner and Sri H.P. Mishra, Advocate appearing for the respondent.

2. This writ petition is directed against the orders of release passed by the Courts below on the bona fide need of the landlord for the accommodation in question. The comparative hardship also found to be tilted in favour of the landlord.

3. Challenging the orders impugned, the sole contention of the learned counsel for the petitioner is that since the release application was filed by one of the co-owner and the consent of other co-owner of the said accommodation has not been taken, and hence it was not maintainable. Elaborating this submission, learned counsel for the petitioner contends that the accommodation in dispute was let-out to the father of the petitioner by Syed Mohammad Ali Ahmed Kabir, the father of the respondent-landlord and his brother Syed Mohommad Ali Qadir. An agreement of sale was executed by the uncle of the landlord namely Syed Mohammad Ali Qadir for a portion of the premises in dispute. The sale deed was not executed and hence Original Suit No. 425 of 1991 for specific performance of the agreement was filed which was decreed on 23.03.1998. The decree was put to execution and a sale deed dated 12.10.1999 was executed by the Court in favour of the petitioner. As a result of it, the petitioner became co-sharer of the disputed property. The Original Suit No. 1551 of 1999 filed by respondent-landlord against the heirs of Syed Mohammad Ali Qadir for partition of the disputed property is pending. Another Suit No. 126 of 2013 filed by respondent-landlord for cancellation of the sale deed dated 12.10.1999 is also pending. In view of these facts, the petitioner cannot be said to be the tenant of the disputed property and the release application filed by one of the co-owners without taking consent of the other co-owner of the disputed property could not be maintained. The release application was liable to be rejected as such.

4. Learned counsel for the petitioner, however, has confined his arguments on the question of consent of the other co-owner.

5. Reliance has been placed upon the judgment of this Court in Nazar Mohammad and Others Vs. Srimati Pushpa Devi and Others, 2014(2) ARC 705 wherein it has been held that where the tenant is the co-owner, obviously his consent cannot be assumed in favour of the co-owner landlord and in such circumstances, without impleading other co-owner, the suit was not maintainable. This Court, while coming to this proposition, has relied upon the judgment of Apex Court in Abdul Alim Vs. Shekh Jamal Uddin Ansari & Ors., 1998(9), SCC 683.

6. In another case of Munshi Lal Vs. Gopal Rao & Others 2013(2) ARC 494, same view has been taken by the learned Single Judge of this Court relying upon the judgment of Apex Court in India Umbrella Mfg. Co. v. Bhagabandei Agarwalla, 2004(3) SCC 178 and Abdul Alim (Supra).

7. In Munshi Lal (Supra), the learned Single Judge after considering two judgments of the Apex Court in Messers Indian Umbrella Manufacturing Co. & Ors. Vs. Bhagabander Agarwalla (Dead) by Lrs. Smt. Savitri Agarwalla & Ors., JT 2004 (1) SC 200; 2004(3) ARC (Suppl.) 71 and in Abdul Alim (Supra) has held in paragraph 20 that there was no apparent conflict between the two authorities and relying upon these reports has observed that the landlord cannot presume to have taken consent of the tenant acquiring co-ownership rights for his own ouster. Paragraphs 6 and 7 of the judgment in Messers Indian Umbrella (Supra) has been followed wherein it was held that where the suit has been filed with the consent of one co-owner and if another co-owner withdrew his consent mid-way so as to prejuidice the other co-owner, it will not fail. The view taken by the Appellate Court in allowing the release application filed by the co-owner in the year 1992 was affirmed rejecting the contention of the tenant that he had stepped into the shoes of the co-owner by virtue of the sale deed executed during the pendency of the release application by the other co-owner.

8. Learned counsel for the respondent, on the other hand, has relied upon the judgment of the Apex Court in Pramod Kumar Jaiswal & Ors., Vs. Bibi Husn Bano & Ors., 2005(5) SCC 492 to submit that the assignment of only a part of the co-owner landlord's interest is not enough to determine the lease. There is no merger of interest of lessor and lessee and for the tenant taking assignment for some part, the right and interest in whole of the property do not vest.

9. Dealing with the submissions of learned counsel for the parties and having perusing the record, so far as the applicant-landlord in the present case is concerned, the petitioner's status for him would be that of tenant only and the situation contemplated by the learned Single Judge in Munshi Lal (Supra) does not arise. There is no question of taking consent of the co-owner tenant whose interest is in apparent conflict with that of the co-owner landlord. The learned Single Judge in Nazar Mohammad (Supra) and Munshi Lal (Supra) had not taken note of the judgment of Apex Court in Pramod Kumar Jaiwal & Ors., (Supra) while placing reliance upon the dictum in Adbul Alim (Supra).

10. The controversy as raised by the learned counsel for the petitioner herein has been set at rest by the Apex Court in Pramod Kumar Jaiswal (Supra) wherein the question was as to whether the tenant having taken the assignment of the rights of certain co-owners, the lease or the tenancy over the building must be taken to have been extinguished and since there was no subsisting relationship of landlord-tenant between the parties, there could be no direction to deposit the rent in terms of the Act. The appellant therein had relied upon the decision in Abdul Alim (Supra) and the Bench, which was dealing with the matter, having noticed the conflict with another decision of co-equal Bench in T. Lakshmipathi Vs. P. Nithyananda Reddy, (2003)5 SCC 150 referred the matter before the Larger Bench.

11. The Larger Bench in Pramod Kumar Jaiswal (Supra) had taken up the matter to decide this controversy. It was submitted before the Apex Court that once a tenant acquires even the right of co-owner-landlord or a fraction of the reversion, the tenancy comes to an end and it could not be postulated that there could be a continuance of the lease or the subsistence of the relationship of landlord and tenant between the parties. After consideration of the provisions of Section 111(d)of the Transfer of Property Act, it has been held that the lease or tenancy does not get determined by the tenant acquiring rights of a co-owner landlord and a merger takes place and the lease gets determined only if the entire reversion or the entire rights of the landlord are purchased by the tenant. After considering the ratio in T. Lakshmipathi (Supra) in Indra Perfumery Vs. Moti Lal, (1969)2 SCWR 967 (paragraphs 3 & 4), it was held that where the tenant of a part of the building had purchased share of a co-landlord, the original lease granted was still subsisting. It could not be said to be a case where entire rights of the lessor and the lessee in the whole of the property had come into the hands of the lessee. There could be no merger in the eye of law and Section 111(d) of the Transfer of Property Act apply only in a case where the interest of the lessor and lessee in the whole of the property vest at the same time in one person, in the same right. Thus, there is no extinction of the tenancy. The lessee had acquired only the rights of certain co-owner landlords and this does not enable him to plead the rights in the whole of the property, which had come to vest in him, that is of the co-owner of a portion and of tenant of the part of the property of which the respondent is the landlord. The observation of the Apex Court in Indira Perfumery (Supra) to the extent that the appellant is the owner of the house and also a tenant of a part of the house has been held to be a bad law.

12. So far as Abdul Alim (Supra) is concerned, in paragraph 7 of Pramod Kumar Jaiswal, it has been observed as under:- In Abdul Alim v. Sk. Jamal Uddin Ansari relied on by the learned counsel for the appellants, the question has not been considered with reference to the relevant provision of the Transfer of Property Act referred to above. There is also no discussion on this question. It appears that in that case, an application filed by the landlord under Section 21(1)(a) of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 for release of the building from the tenant, was held to be not maintainable because the tenant had in the meanwhile acquired co-ownership in the demised shop. It is simply stated: (SCC p. 684, para 4). "[That] the change of status of the tenant to that of being an equal co-owner of the unpartitioned property, would, therefore, lead to an irresistible conclusion that the release application was not maintainable. It is not disputed that there has been no partition of the suit premises till date. The High Court was, under the circumstances, not justified in upsetting the findings of the trial court and the appellate court in exercise of its [powers under] writ jurisdiction."

13. In paragraph 22, the Apex Court finally concluded:- "Here in this case, the lessee has acquired only the rights of certain co-owner landlords and may have the right to work out his rights against the others. The right to work out his rights would not enable him to plead that the two rights in the whole of the property had come to vest in him. What is involved in the present case is the question whether on the acquisition of the rights of some of the co-owner landlords by the tenant, there is an extinguishment of the tenancy by merger as postulated by Section 111(d) of the Transfer of Property Act. T. Lakshmipathi answers that question and with respect, answers that question correctly."

14. Thus, in view of the above dictum of the Apex Court, the view taken in Nazar Mohammad (Supra) does not seem to be correct. It appears while placing reliance upon the judgments in Abdul Alim (Supra), Messers Indian Umbrella Manufacturing Company (Supra), the Larger Bench judgment in Pramod Kumar Jaiswal (Supra) had escaped the attention of the learned Single Judge or it was not brought before him. As a result of which he came to the conclusion that since there was no question of taking of consent of other co-owner, who is the tenant, the release application under section 21(1)(a) was not maintainable.

15. Following the rule of precedence, under Article 141 of the Constitution of India, the judgment in Pramod Kumar Jaiswal (Supra) being of Larger Bench and a later judgment is binding upon this Court.

16. In view of the above discussion, on the facts of the present case, it is held that the petitioner's status in the property in dispute will not change with the purchase of a portion of the property from one of the co-owner. His status, vis-a-vis the applicant-landlord, will remain that of the tenant and there would be no question of obtaining his consent as against him. Further, as the other co-owner was not available, there was no question of taking his consent. The release application was perfectly maintainable even in the absence of the consent of the other co-owner. There is no merger of the interest of the lessee/petitioner with that of the interest of lessor/respondent-landlord in the whole of the property and hence, the tenancy cannot be said to have been determined under Section111(d) of the Transfer of Property Act. The release application was perfectly maintainable and was rightly decided by both the Courts below on its merit.

17. There is no challenge to the findings on the merits of the release application recorded by both the Courts below.

18. No other point has been pressed.

19. There is no merit in the submissions of the learned counsel for the petitioner.

20. The writ petition is devoid of merit and hence dismissed. __________