JAGADISH DUTT Vs. DHARAM PAL

JUDGEMENT

(1.) A suit for ejectment was instituted by the appellants on the grounds of arrears of rent and sub-letting by Dharam Pal (Respondent No. 1) and Sat Pal (Respondent No. 2). The suit was decreed by the trial Court on March 31, 1987. Appeal against that decree, second appeal thereafter and further special leave petition to this Court against the decree in second appeal stood dismissed. The appellants herein levied execution of February 5, 1991 and certain objections thereto were raised that judgment-debtor No. 1 was unnecessarily arrayed as a party in the proceedings and he was not in possession of the disputed premises. Judgment-debtor No. 2 claimed that he was a tenant in respect of the shop in question and his tenancy was not terminated in accordance with law. This contention was belied by the finding recorded by the High Court in second appeal that the said Sat Pal (Respondent No. 2) was not a tenant but a trespasser of the shop. Hence the objections were overruled. Against that order a revision petition was filed which was also dismissed, of course, granting some time to vacate the premises subject to certain conditions.

(2.) In the execution petition respondent No. 2 claimed that he had purchased the undivided interest of the coparceners in the Hindu Undivided Family of the decree holder and, therefore, actual physical possession cannot be given but only symbolic possession can be given to the appellant-decree-holder. The Executing Court, after inquiry, upheld this contention. That order was challenged in the High Court. The High Court set aside the order made by the executing Court and remitted the matter to it to investigate the quantum of share purchased by respondent No. 2. If a good or larger share as opposed to an insignificant share had been purchased by respondent No. 2 khas possession cannot be given to the appellant and if only an insignificant portion had been purchased by him, the khas possession shall be given to the appellant. It is against this order the present special leave petitions are preferred.

(3.) The learned counsel for the appellants contended that it is not open to the respondents during the subsistence of tenancy or in the suit for recovery of possession of the property after termination of tenancy to set up title in himself or in any other person. Respondents had to surrender possession and seek remedy, if any, separately in case he acquires title subsequently through some other person and he placed strong reliance in support of this proposition on the decision of this Court in Sant Lal Jain v. Avtar Singh, (1985) 2 SCC 332 . He also contended that in a case of this nature where only a portion of the undivided interest had been purchased by the judgment-debtor there would be no merger of interest in terms of Section 111(d) of the Transfer of Property Act, 1882 and submitted that the concept of merger would arise only if no property remains outside the sale. In the present case only 1/3rd undivided share having been purchased the judgment debtor cannot resist the recovery of possession and placed reliance on the decision of this Court in Shah Mathuradas Maganlal and Co. v. Nagappa Shankarappa Malage, (1976) 3 SCC 660 and Parmar Kanaksinh Bhagwansinh (Dead) by LRs v. Makwana Shanabhai Bhikhabhai, (1995) 2 SCC 501 .