DROKI NANDAN, J. - (1.) This is plaintiff's second appeal in a suit for ejectment, arreas of rent and damages for use and occupation in respect of a residential accommodation situate at Kanpur. The trial Court had decreed the suit, but the lower appellate Court has dismissed it. The building, of which the accommodation forms part, according to the plaintiff's case and now according to the findings of the two Courts below also, was constructed after the year 1950. The building is in two parts, being situate on two separate plots of land and bearing two separate municipal numbers ; but the building was constructed jointly by the plaintiff and her husband Ram Rattan. An earlier suit, being Suit No. 1154 of 1965, filed by the present plaintiff and her husband against the defendant for ejectment and arrears of rent, was decreed by the trial Court, but the Court of Civil Judge Kanpur in Civil Appeal No. 253 of 1967 had dismissed the claim for ejectment on the ground that the notice served under Section 106 of the Transfer of Property Act was not valid and effective inasmuch as it was not served by both the landlords, namely, the present plaintiff and her husband Ram Rattan, who were found to be the joint owners and landlords of the property in that suit. The decree for reco­very of rent was, however, maintained by the first appellate Court in that suit. The judgment of the trial Court in that suit is dated 9-5-1967, vide Ex. 4 and taht of the first appellate Court is dated 12-12-1967, vide Ex-A8, But, it appears from the sale-deed Ex-A-3 that the present plaintiff's husband Ram Rattan had sold the half share in the building to one Smt. Ilaichi Devi on 20-10-1965. From Ex 9. which is a certified copy of an order dated 29-4-1967 of the Court of IInd Additional Munsif Kanpur in suit No. 1154 of 1965, it appears that it was brought to the notice of that Court that the eastern half of the building had been purchased by Smt. Ilaichi Devi, but the defendant-tenant resided in the western half portion of the building with which Smt. Illaichi Devi had no concern That Court, it appears, accordingly refused to take notice of the transfer of his share in the property by Ram Rattan to Smt. Ilaichi Devi and proceeded to hear and decide the suit on the basis of the facts as they stood at its commencement.
(2.) THE main point on which the two Courts below have differed is the question whether the plaintiff alone is the landlord of the accommodation in suit; the trial Court having held that he alone was the landlord while the lower appellate Court, on the other hand, having held that he alone was not the landlord. The reasoning adopted by the lower appellate Court is firstly that the dacision in the earlier suit operated as res judicuta and the plaintiff cannot be permitted to say in the present case that she alone is the landlord and that her husband Ram Rattan was not a co-owner or co-landlord with her. It also held that Smt. Ilaichi Devi stepped into the shoes of Ram Rattan and became the co-owner and co-landlord with the plaintiff. However, despite that finding, the lower appellate Court proceeded to consider the question whether there had been a partition of the building between Smt. Ilaichi Devi and the plaintiff and whether the defendant could be said to be a tenant of the portion of which the plaintiff alone was the owner and landlord. It held that under the sale-deed dated 20-10-1965 Ram Rattan had transferred only an undivided share in the entire house and even if the transferee has been put into exclusive possession over a specific portion of the property, that was, "simply an arrange­ment for the convenient management of the property" that "under the sale deed the transferee became only a co-owner and she cannot claim exclusive right over any specified portion unless there is a partition between the trans­feree and the remaining co-owner," that "a partition of an immovable property as we know can taken place either by a registered document or by means of a decree of the Court." and finding that "in the present case there is no allega­tion that these has been executed any document of partition between the present plaintiff and Smt. Ilaichi Devi, nor it is alleged that there has been filed a suit for partition by either of them", it held that ' inspite of the separate exclusive possession both of them will continue as co-owner and co-landlords". Even the "allotment of separate numbers to different portions by the municipal authorities is simply for the purposes of realisation of taxes and will not affect the rights of the parties." Further, according to the lower appellate Court, "the case of a tenant who is let into possession by only one of the co-owners after this arrangement of separate possession, may be different but when a tenant continues from before this arrangement and when it has been held earlier between the tenant and the co-owners including the" transferor of "one of the present co-owners that all the co-owners are also co-landlord as against the said tenant, the tenant would continue as the tenant of all of them until there is a legal partition between the two and the tenant is allotted to only one of them in the said partition." It accordingly held that "the present suit also suffers from the same defect which was in the earlier suit of 1965", and in the result dismissed the suit, not only far ejectment but also for recovery of rent inasmuch as Smt. Ilaichi Devi had not joined the suit as co-plaintiff and had not been impleaded as a 'pro forma' defendant.
(3.) LEARNED counsel for the plaintiff-appellant has urged before me that the findings of the lower appellate Court about the effect of the decision in the earlier suit and that there was no partition between the two co-owners or that the plaintiff alone was not the landlord vis-a-vis the defendant, were erroneous in law. The finding in the earlier suit was that at the time when notice under Section 106 of the Transfer of Property Act was issued and the present plaintiff and her husband both were the co-landlords and the notice was bad and ineffective in law inasmuch as the present plaintiff's husband, who was the other co-landlord, had not joined in the notice. That is not the question in issue in the present suit. Indeed, the fact that the defendant was in possession of the western portion of the building and that Smt. Ilaichi Devi bad purchased the eastern half portion and had no concern with the western portion, of which the defendant was a tenant, was specifically brought to the notice of the trial Court in the earlier suit, but it was decided that the same had no effect in that suit, vide-Ex-A-9, obviously because the decision of that suit turned on the validity of the notice under Section 116 of the Transfer of Property Act. The decision in that suit cannot, therefore, be deemed to operate as resjudicata.;