WRIT PETITION 3105 of 1996 on 27 May 1975

Letters Patent Appeal No.264 of 2005Date of Decision: July 31[st], 2009

Rai Jasbir Singh and another

State of Haryana and others

Versus

Appellants

Respondents

CORAM:- HON'BLE MR. JUSTICE T.S.THAKUR, CHIEFJUSTICEHON'BLE MR. JUSTICE JASBIR SINGHHON'BLE MR. JUSTICE JASBIR SINGH

Present: Dr.Shyamlha Pappu, Senior Advocate with Mr.J.S.Udasi, Advocate for the appellantsMr.Rameshwar Malik, Additional Advocate General Haryana for respondent No.1Mr.M.L.Sarin, Senior Advocate with Mr.Vivek Sood, Advocate for respondent Nos.3 to 9

…..

Jasbir Singh, J.

This appeal is a classic example of how a determined (chronic)litigant can frustrate rights of his opponent, by abuse of the legal process.The private respondents became owners of land measuring about 24 acres inthe year 1972. They are out of possession, fighting litigation for the lastabout 37 years and yet not sure as to when they will get possession of theirland.

The appellants have filed this Letters Patent Appeal against thejudgment dated 25.5.2005, passed by a learned Single Bench of this Court,dismissing Civil Writ Petition No.3105 of 1996, filed by them. In that writpetition, the appellants had laid challenge to the orders passed by theAssistant Collector, Collector, Commissioner, Financial Commissioner ofState of Haryana (Annexure P1 to P4), ordering/ confirming their ejectmentfrom the land comprised in Khewat No.280 Khatoni No.344, Khasra No.25// 24, 25, 31//6, 7, 8, 9, 11, 12, 13, 14, 31//14, 15, 16, 17, 19, 20,30//4, 5, 6, 7, 14, 15, 16, 17, 24//2, 25, situated in village Gumthala Garhu,district Kurukshetra.

Brief admitted facts

One Mann Singh was owner of the land measuring 250 kanals,which includes the land in dispute, situated in village Gumthala Garhu andDhulgarh, district Kurukshetra, State of Haryana. As per the provisions ofPunjab Security of Land Tenures Act, 1953 (in short, the Act), a vast trackof land, owned by him, was declared surplus. In the month of June 1955,Mann Singh leased out 568 kanals 12 marlas of land to appellant No.1 RaiJasbir Singh, for a period of 20 years i.e. upto Rabi 1975. Around 1958,Maan Singh sold 568 kanals 12 marlas of land i.e. the entire leased out land,to Dalip Singh, Dalip Kaur and Swaran Singh vide separate registered saledeeds. Mann Singh had two daughters, namely, Mohinder Kaur and KirpalKaur. Smt.Mohinder Kaur filed a Civil Suit for possession, by way of pre-emption, for the above mentioned land. Her suit was decreed in the year1962. She was declared owner of the land measuring 568 kanals 12 marlas.In the year 1964-65, Maan Singh died. Out of land measuring 568 kanals12 marlas, Mohinder Kaur made a gift deed of 13 acres of land to GurdwaraBohli Sahib, Pehowa. She sold 10 acres of land to Niranjan Singh, JarnailSingh and others (they are not parties to the present proceedings). Out ofremaining 48 acres of land, she gifted 24 acres of land to her sister KirpalKaur in the month of June 1972. Private respondents, namely, WaryamSingh, Balwant Singh, Darshan Singh, Amarjit Singh and Dalip Singh,exchanged 24 acres of land with Smt.Mohinder Kaur and became owner/co-sharers in the property, in dispute. It is also an admitted fact that during thisentire period, appellant No.1, namely, Rai Jasbir Singh remained in possession of 568 kanals 12 marlas of land as a lessee.

possession of 568 kanals 12 marlas of land as a lessee.

The private respondents, on 11.9.1974, filed an application forpartition of the land, by separating their share, before the AssistantCollector Ist Grade Guhla (Annexure PA). That application was filedagainst Smt.Kirpal Kaur daughter of Mann Singh and Niranjan Singh etc.She failed to appear and was proceeded ex-parte. After filing of thisapplication, Smt.Kirpal Kaur sold 10 acres of land to appellant No.1, whothen moved an application on 27.5.1975 (Annexure PC) to become a partyin the pending partition proceedings. His application was allowed videorder dated 30.5.1975 (Annexure PD) and the matter was adjourned to16.6.1975 to file objection regarding proposed partition. On 16.6.1975,following order was passed by the Court of Assistant Collector Ist GradeGuhla:- “No objection has been filed against the plan-J. RaiJasbir Singh says that another Advocate from Kaithal iscoming. But, he has neither filed any objection nor producedany power of attorney. Under these circumstances no moretime can be given to the respondent. Plan-J seen, accordinglymode of partition admitted to be correct. Therefore, partitionis confirmed. File may be put up on 16.7.75 for partition deed.Applicant should file the requisite stamp papers.”

Thereafter, on 5.8.1975, the Assistant Collector Ist GradeGuhla, passed the following order:- “The applicants have filed the application for partitionof land in this Court on 25.7.74 with a prayer that aforesaidland is joint property of the partners and due to this reason,the applicants cannot take full benefit of this land and there remains a dispute and as such separate khata should beformed in respect of the share of the applicants and the landshould be partitioned. The land was partitioned as per rules,the detail of which is attached herewith. The orers wer passedon 16.6.75. The respondents have not filed any appeal againstthe said orders in any higher Court and the period for filingthe appeal has expired on 16.7.75. Therefore the Sanad isbeing prepared in compliance of the order dated 16.6.75. It ismade clear that this partition shall come into effect w.e.f.5.8.75.”

Consequent thereto, Sanad Takseem was prepared on that verydate, which has been put on record as Annexure R9/1. In their writpetition, grounds of this appeal, First Synopsis filed by the appellants, theyhave admitted the factum of effecting partition, however, subsequentthereto, they tried to wriggle out of the same by stating that partition wasnot as per rules and the land was not partitioned by metes and bounds.

Facts regarding Civil Suit filed by appellant No.1

Record further reveals that instead of putting in appearancebefore the Assistant Collector Ist Grade, where partition proceedings weregoing on, the appellant Rai Jasbir Singh filed a Civil Suit on 9.1.1976,laying challenge to the order dated 16.6.1975, confirming partitionproceedings, vide which matter was adjourned to 16.7.1975, for framinginstrument of partition. In that suit, he clamed a ‘decree for declaration’ tothe effect that land in dispute, was still jointly held by the parties, as thepartition proceedings detailed in para No.1 of the plaint were illegal,without jurisdiction and void. He prayed that orders passed by the AssistantCollector Ist Grade, confirming partition, be set aside. His suit was

dismissed on 29.1.1980. He along with Kirpal Kaur went in appeal. Duringpendency of that appeal, Smt.Kirpal Kaur filed an application (AnnexurePF) with a prayer that she did not want to proceed further with the appealand her name be deleted from the array of the appellants. Appeal filed byappellant No.1 was dismissed on 4.12.1981. He challenged the order, byfiling RSA No.615 of 1982 in this Court, which was also dismissed by thesame learned Single Bench, who has passed the order impugned in thisappeal, on 25.5.2005. As per information supplied, against that order, SLPfiled by the appellants is pending in the Hon’ble Supreme Court.

Facts regarding ejectment proceedings initiated by the privaterespondents On 14.7.1975, private respondents, being small land owners,filed an application in Form K1 (P1), as per the provisions of Section 9 ofthe Act against the appellants. The Assistant Collector, Kaithal allowed thatapplication on 23.7.1976, ordering ejectment of the appellants from theland, in dispute and also awarded an amount of Rs.20,000/- to theappellants, towards compensation for a Tubewell and a house constructedon the land, in dispute. Appellants went in appeal, which was allowed andmatter was remitted to the Assistant Collector Ist Grade to determinefollowing two points:- Firstly, what is the land owned by the petitioners and what istheir share; Secondly, the respondents be given chance to cross-examinethe Executive Engineer, Pehowa.

During fresh hearing, many opportunities were given to theappellants to produce evidence etc. They failed to comply with the orders passed by the Court, rather they tried to prolong the matter, by raisingfrivolous objections and they were successful in keeping the matter pendingbefore Assistant Collector Ist Grade till 11.7.1985, when finally, theAssistant Collector Ist Grade, Thanesar allowed application in Form K1,filed by the private respondents and ordered ejectment of the appellantsfrom the land, in dispute.

To show determination of the appellants to frustrate efforts ofthe private respondents, to get possession of their land, it is necessary tonote few paragraphs from the order, referred to above:- “Against this order of the Asstt. Collector, an appeal

was filed before the Collector Kurukshetra. The appeal wasaccepted and the case was remanded for re-considering thecase on two points; firstly what is the land owned bypetitioners and what is their share; secondly, the respondentsbe given chance to cross-examine the Executive Engineer,Pehowa. After the remand order, Assistant Collector IstGrade, Kaithal called both the parties. According to thestatement of the counsel for the petitioner dated 7.5.1977following khasra Nos. i.e. khasra No.31/18, 21, 22, 23 wereexcluded from the petition and respondents were directed todeposit the expenses for calling the Executive Engineer and thecase was adjourned for 16.7.77 for 16.7.1977 the case wasadjourned from 28.5.1977 at the request of respondents. On28.5.77 as the witnesses have not come, the case wasadjourned to 20.6.77 for the evidence of the parties. On20.6.77 the case was adjourned to 5.7.77 and 3.8.77 the casewas pending for proper order. On 3.8.77 the case was fixed for evidence of the petitioner for 22.8.77, on 22.8.77 as thePresiding Officer was on tour, the case was adjourned to23.8.77 the case was being fixed for procuring the attendanceof the witnesses. On 22.9.77 Sh.A.S.Malhotra, ExecutiveEngineer, SYL., was present and the respondents tookresponsibility for paying the expenses themselves for 20.6.77.The respondents were asked to pay the expenses of thewitnesses and cross-examine him but the respondents declinedto pay the expenses of the witness and so counsel for therespondent was not allowed to cross-examine. On the sameday one application on behalf of Swaran – respondent wasmoved for amendment of written statement and the case wasadjourned for reply and arguments on the application.

In between the respondent filed an appeal before ShriChander Singh, IAS, Additional Collector, Kurukshetraagainst the order dated 22.9.1977. The same was dismissed bythe Additional Collector vide his order dated 9.12.1977 and itwas observed therein that if the respondents on 22.9.77 depositthe process and expenses for calling the witnesses, then theyshould be given a change to cross-examine the witness.

After receiving back the file the Assistant Collector,Kaithal the case was adjourned to 3.1.1978 for arguments onthe application of Swaran and deposit of expenses for thewitnesses. On 3.1.1978 the case was adjourned to 5.1.78 onthe request of respondent No.2. On 5.1.78 respondent No.1came present in the Court and told that they have carried arevision against the order of the Additional Collector dated 9.12.1977 before the Commissioner, Ambala Division. Thecase was adjourned to 12.1.78, then the case was adjourned to25.1.78 on which date the same was adjourned to 30.1.78. On30.1.1978 application of respondent No.2 Swaran Singh wasdismissed after hearing the arguments and it was directed thatthe respondents should deposit the expenses of the witnessesforthwith. The case was adjourned to 23.2.78 for the same.On 23.2.78 Shri A.S.Malhotra, Executive Engineer was presentbut respondents refused to cross-examine him. The witnesswas discharged. The case was adjourned to 9.3.78 for furtherproceedings.

The Commissioner Ambala Division vide his order dated21.3.78 dismissed the revision of Swaran Singh in limine.After receiving the file, both the parties were called and bothwere present on 24.4.78 but the case was adjourned sine-diedue to the stay orders from the court of FinancialCommissioner.

The Hon’ble Financial Commissioner also dismissed thereivison of Swaran Singh on 25.7.79 and it was observed thatthe respondents are only interested in getting the caseprolonged.

After receiving the files from the Court of Hon’bleFinancial Commissioner, the counsel for the petitioner waspresent on 30.8.1979, and the case was being adjourned upto4.10.1979 for the service of the respondents. On 4.10.1979 thecase was transferred to the court of Assistant Collector IstGrade Guhla due to Guhla being made Sub Division by that time. Both the parties were directed to appear there on15.10.1979. Both the parties as per the directions appearedbefore that Court on 15.10.1979 and the case was fixed forevidence of the parties. On 16.11.1979 witness of thepetitioner Malook Singh, Patwari (summoned witness) waspresent but at the request of the counsel for the respondentsthe case was adjourned to 22.11.1979 as he has not seen thefile. On 22.11.1979 the evidence of Malook Singh wasrecorded and the case was adjourned to 30.11.79, 17.12.79and 8.1.80 the case was adjourned to 18.1.80. On that that therespondents moved an application for calling the ExecutiveEngineer as witness which was dismissed on 28.1.1980. Theevidence of the petitioner was closed on 4.2.80 and the casewas fixed for evidence of the respondents on 18.2.80. On18.2.80 respondent No.2 moved an application for amendmentof written statement which for reply and arguments was fixedfor 22.2.80. On 22.2.80 the file was dispatched to the court ofCollector, Kurukshetra.

On 8.7.80 the case was remanded by Collector,Kurukshetra with a direction to summon the ExecutiveEngineer as witness. On 22.8.80 both the parties were present.The case was adjourned for reply and arguments on theapplication of Swaran Singh for 10.9.80. On 10.9.80 theapplication of Swaran Singh was dismissed and against thisorder an appeal was filed in the court of Collector,Kurukshetra which was dismissed on 16.2.81. On 27.2.81inspite of the directions respondents were not present and exparte proceedings were taken against them and the file wassent to the court of Financial Commissioner on 31.3.81.Hon’ble Financial Commissioner dismissed the revision on9.6.1981. On 3.5.82 exparte proceedings against therespondents was set aside and the case was adjourned to26.5.82 for evidence of the respondents. On 26.5.82 cross-examine of the Executive Engineer finished and the case wasadjourned for remaining evidence of the respondents.

On 4.8.82 the evidence of the respondents was closedand the case was fixed for arguments on 8.9.82. On 8.9.82 anapplication for additional evidence of the respondents wasdismissed. On 28.9.92 this case was dismissed in default andthe file was sent to the Record Room. On 8.10.82 thepetitioners moved an application for restoration of the originalcase but this case was transferred to this Court on the ordersof Assistant Collector Ist Grade, Guhla as per the directions ofthe Collector, Kurukshetra which was received by this Courton 20.10.1982. This case was again sent to the court ofCollector, Kurukshetra for deciding the application ofrestoration of the case and the case was restored vide ordersdated 28.2.83. Against the order dated 28.2.83 Rai JasbirSingh etc. filed an appeal before the Commissioner, AmbalaDivision and the same was dismissed by the CommissionerAmbala Division vide his order dated 6.6.84. The file wasreceived on 17.8.84 and the case was fixed for considerationfor 30.8.84 in the presence of both the parties. On 30.8.84 thecase was adjourned for arguments. On 11.10.84 respondents moved another application for leading additional evidence onwhich Rs.50/- as cost was imposed and the case was fixed forreply and arguments for 22.10.84. On 23.11.1984 afterhearing both the parties, the application of respondents foradditional evidence lead dismissed. Against this order therespondents filed an appeal before the Collector, Kurukshetraand the same was dismissed vide order dated 16.1.1985. On12.2.85 Waryam Singh moved an application which wasdismissed on 22.2.85. On 4.3.85 Waryam Singh moved anapplication which was dismissed on the same day afterhearing.

On 29.5.85 the civil writ petition filed by Swaran Singhwas dismissed.”

Against order dated 11.7.1985, the appellants went in appeal,which was dismissed on 25.8.1986. They went to the Court ofCommissioner, by filing second appeal, which was treated as a revision andwas dismissed on 19.10.1988. Their further appeal/ revision was dismissedby the Financial Commissioner on 10.5.1995. Then they filed Civil WritPetition No.3105 of 1996, which was dismissed on 25.5.2005. Thereafter,this appeal.

It is necessary to note here that during this long period of morethan three decades, the appellants remained in possession, under orderspassed by the Civil Court(s) where partition proceedings were challengedand by this Court when RSA No.615 of 1982 was admitted on 3.5.1982.When their RSA was dismissed, they got order of status quo passed in thisappeal on 23.12.2005.

It is an admitted fact that the appellants are continuing in

Relief

possession over the land, in dispute, for the last more than three decades,without making payment of even a single pie to the real owners. Byprolonged litigation, they have also ensured that order of partition passed infavour of the private respondents in the year 1975, be not implemented.After dismissal of their RSA in the year 2005, when proceedings wereinitiated to implement the orders passed by the Courts below, they againstarted the same process of litigation, which fact is evident from anapplication moved by them in this appeal, to get stay of the proceedings inthe Courts below, initiated by the private respondents to get possession.They also moved an application to lead additional evidence, bringing onrecord those documents which were in their possession throughout but theynever made any attempt to bring those documents on record. As is apparentfrom the orders passed by the Revenue Courts below, in ejectmentproceedings, they even did not put on record copy of the sale deed, videwhich, 10 acres of land was purchased by appellant No.1 from Kirpal Kaurin the year 1975.

Heard counsel for the parties.

Ms Shaymlha Pappu, learned Senior Advocate has impugnedthe order passed by the learned Single Bench on 25.5.2005 and the orders ofthe Courts below primarily on the ground that the learned Single Bench andthe Courts below have gone wrong in ordering ejectment of the appellants,who have become co-sharers in the land, in dispute. In support, she madereference to the sale deeds through which land was purchased by theappellants from Waryam Singh, Balwant Singh and Dalip Singh privaterespondents in the year 1983 and 2001. (total 70 kanals 5 marlas). Shefurther argued that the alleged order of partition, passed in the year 1975 isnot binding upon the appellants. In the alternative, she contended that as the partition has not been effected by metes and bounds, as such, that orderwill not put an end to the joint ownership of the appellants and the privaterespondents. She prayed that the appeal be allowed by setting aside theorders under challenge.

Prayer made has vehemently been opposed by Mr.M.L.Sareen,learned Senior Advocate. He argued that the private respondents are smallland owners. They have rightly filed application in form K1 as per theprovisions of Section 9 of the Act for ejectment of the appellants from theland, in dispute. He further argued that objection, that there was norelationship of landlord and tenant, was not taken in the writ petition. Byadopting delaying tactics, the appellants have frustrated rights of the privaterespondents. They have lost upto this Court in their challenge to thepartition proceedings. He further argued that in all, the appellants hadpurchased 70 kanals 5 marlas of land from the private respondents out oftotal land in dispute, i.e. 190 kanals 15 marlas. They may retain any portionof land equal to 70 kanals 5 marlas and leave the remaining land for theprivate respondents. He further argued that once Sanad partition has beenprepared, it puts an end to the joint ownership of the parties. He also arguedthat regarding leading of additional evidence, in earlier bout of litigation,the appellants have failed upto this Court and now they can not be permittedto bring on record any document, which was in their possession throughoutduring the period of more than three decades.

Arguments

After hearing counsel for the parties, in view of facts of thiscase, we are persuaded to say that the appellants have no case, rather bymisusing process of law, they are trying to prolong their unauthorizedpossession over the land, in dispute. How they have frustrated rights of theprivate respondents to get their property and prolong their possession, indication is available from reading of the order passed by the AssistantCollector Ist Grade, Thanesar on 11.7.1985 (portion of which has beenreproduced in earlier part of this order). Facts indicate that despiteopportunities given, they have failed to even deposit expenses forsummoning of a witness. They also laid challenge to the orders passed inthat regard and went upto the Court of Financial Commissioner. Thereafter,they got an opportunity to do the needful, which, again they failed to avail.In the meantime, they also moved an application for leading additionalevidence, which was dismissed and against that they came upto this Courtand their writ petition was dismissed on 29.5.1985. They were successful inkeeping the matter pending in the Court of Assistant Collector Ist Grade fora long period of about more than eight years. Their unreasonable conductbecomes apparent when in this Court they refused an offer made by counselfor the private respondents, to retain any portion of land (70 kanals) out ofthe land, in dispute, i.e. 190 kanals 15 marlas. This Court, vide order dated12.12.2008, ordered that let the matter be put up before the Lok Adalatconsisting of three Hon’ble retired Judges of this Court, to settle equitiesbetween the parties, however, the matter was returned to this Court, videorder dated 18.12.2008 by the Lok Adalat, after observing as under:- “Appellants are adamant to purchase the excess land intheir possession, however, the respondents who are present,are not willing to sell the same. Appellants are not ready tosurrender the excess land with them. No settlement betweenthe parties present could be arrived at inspite of best effortsmade by the Bench. Hence, appeal is returned to the HighCourt.”

It appears that the appellants are hell-bent upon to retain the land, that too without payment of any compensation for use and occupationfor the last more than three decades.

Contention of Ms Shyamla Pappu, learned SeniorAdvocate that if during pendency of ejectment application, the tenantacquires right of ownership over some portion of the property, in dispute,ejectment order cannot be passed against him, is liable to be rejected.

It is apparent from the records that total land, in dispute is 190kanals and 15 marlas. Out of that land, appellants had purchased only 70kanals 5 marlas of land during pendency of ejectment application againstthem. Admittedly, they have not become owners of the entire land, indispute. Appellant No.1 is a tenant on the entire property.

Under similar circumstances, dealing with a similarcontroversy, their Lordships of the Hon’ble Supreme Court, inT.Lakshmipathi and others v. P.Nithyananda Reddy and others, (2003) 5SCC 150 observed as under:- “In the case at hand, it cannot be denied, nor has it beendenied, that the appellants herein are not purchasers of theentire ownership interest in the property. What they havepurchased is interest of some out of all the co-owners of theproperty. The interest of the respondent No.1, whatever be itsextent, has not come to vest in the appellants. The appellantshave also acquired the tenancy rights in the property. Thusthey have acquired partial ownership and full tenancy rights. Itcannot be said that the interests of the lessee and the lessor inthe whole of the property have become vested in the appellantsat the same time and in the same right. The lease cannot besaid to have been determined by merger. So long as theinterests of the lessee, the lesser estate and of the owner, the

larger estate do not come to coalesce in full either the water oflarger estate is not deep enough to enable annihilation or thebody of lesser interest does not sink or drown fully.It was further observed as under:- “In the facts and circumstances of the case, no defence orshelter is available to the appellants behind the plea that theyhave acquired interest of some of the co-owners. The law as toco-owners is well settled. Where any property is held byseveral co-owners, each co-owner has interest in every inch ofthe common property, but his interest is qualified and limitedby similar interest of the other co-owners.One co-ownercannot take exclusive possession of the property nor commit anact of waste, ouster or illegitimate use, and if he does so hemay be restrained by an injunction. A co-owner may, by anarrangement, expressed or implied, with his other co-owners,possess and enjoy any property exclusively. Such a co-ownercan also protect his possession against the other co-ownersand if he is dispossessed by the latter, he can recover exclusivepossession. (See Jahuri Sah & Ors. Vs. Dwarika PrasadJhunjhunwala,. It is beyond any controversy that on the deathof late P. Narayana Reddy, his rights devolved upon theseveral heirs including respondent no.1. Respondent no.1 isthe only male person in the body of the co-owners, all othersbeing women. It may be for this reason, or otherwise, thatrespondent no.1 was in possession of the property, throughtenants, realizing the rent peacefully and with the consent,expressed or implied, of other co-heirs of late P. Nithyananda Reddy. So far as respondents no.2 and 3 are concerned, byoperation of Section 116 of the Evidence Act, they wereestopped from challenging or denying the ownership ofrespondent no.1 and his rights in the tenancy premises. Asheld in Vasudeo Vs. Balkishan, the rule of estoppel betweenlandlord and tenant continues to operate so long as thetenancy continues and unless the tenant has surrenderedpossession to the landlord. The estoppel would cease tooperate only on the tenant openly restoring possession bysurrender to the landlord.

Neither respondents no. 2 and 3 nor their successors ininterest or the persons claiming under them could have deniedthe title of respondent no.1 during the continuance of thetenancy and even thereafter unless they had restoredpossession over the tenancy premises to respondent No.1.Looking at the status of the appellants whether as co-ownersor as persons inducted in possession by the tenants they haveno legs to stand on. If other co-owners could not havedispossessed respondent no.1 or demolished the propertywithout the consent of respondent no.1 it is difficult to conceivehow their transferees could have demolished the tenancypremises and raised their own construction over the land onwhich the tenancy premises stood earlier.”

Similarly, inPramod Kumar Jaiswal and others v. Bibi HusnBano and others, (2005) 5 Supreme Court Cases 492, their Lordships ofthe Hon’ble Supreme Court, when interpreting the provisions of Section 111of the Transfer of Property Act, 1882, under similar circumstances, held that

a tenant who has taken assignment of rights of a co-owner cannotsuccessfully raise a plea of determination of tenancy on the ground ofmerger. It was observed as under:-

22. Here in this case, the lessee has acquired only the rightsof certain co-owner landlords and may have the right to workout his rights against the others. The right to work out hisrights would not enable him to plead that the two rights in thewhole of the property had come to vest in him. What isinvolved in the present case is the question whether on theacquisition of the rights of some of the co-owner landlords bythe tenant, there is an extinguishment of the tenancy by mergeras postulated by Section 111 (d) of the Transfer of PropertyAct. T. Lakshmipathi answers that question and with respect,answers that question correctly.of certain co-owner landlords and may have the right to workout his rights against the others. The right to work out hisrights would not enable him to plead that the two rights in thewhole of the property had come to vest in him. What isinvolved in the present case is the question whether on theacquisition of the rights of some of the co-owner landlords bythe tenant, there is an extinguishment of the tenancy by mergeras postulated by Section 111 (d) of the Transfer of PropertyAct. T. Lakshmipathi answers that question and with respect,answers that question correctly.

23. A plain and grammatical interpretation of Section 111(d) of the Transfer of Property Act leaves no room for doubtthat unless the interests of the lessee and that of the lessor inthe whole of the property leased, become vested at the sametime in one person in the same right, a determination of thelease cannot take place. On taking an assignment from someof the co-owner landlords, the interests of the lessee and thelessor in the whole of the property do not become vested at thesame time in one person in the same right. Therefore, a lesseewho has taken assignment of the rights of a co-owner lessor,cannot successfully raise the plea of determination of tenancyon the ground of merger of his lessee's estate in that of theestate of the landlord. It is, thus, clear that there is no substance in the contention of the learned counsel for theappellants that in the case on hand, it should have been heldthat the tenancy stood determined and the application of thelandlord for a direction to the tenant to deposit the rent inarrears should have been dismissed. The position of theappellants as tenants continue and they are bound to complywith the requirements of the Rent Control Act under which theorder for deposit has been passed against them. The HighCourt has rightly dismissed the revision.”

In view of above, it is not open to the appellants to say as theyhave become co-sharers in the property, in dispute, as such, ejectmentproceedings under the Act, cannot be initiated against them. As per Section9 of the Act, a small land owner is entitled to eject a tenant from his land.In the year 1975, in appeal filed by the appellants, the appellate Courtremitted the matter to the Assistant Collector Ist Grade, to determine as towhether the land owners (the private respondents) were the small landowners or not. The Assistant Collector Ist Grade, vide order dated11.7.1985, gave a positive finding that the private respondents were thesmall land owners and were entitled to move application in form K1 underthe Act. Neither before the Courts below, nor before us, any document hasbeen shown, indicating to the contrary.

Not only this, admittedly, land was leased out to appellant No.1in June 1955 for a period of 20 years. Thereafter, as per the provisions ofSection 40 of the Punjab Tenancy Act, 1887, he was liable to be ejectedfrom the tenancy land. Admittedly, the appellants have not paid a singlepenny towards damages for use and occupation of the land in dispute, to theprivate respondents, for a period of more than three decades.

In view of above, we can safely say that the Courts below werecorrect in ordering ejectment of the appellants and the order passed by thelearned Single Bench is perfectly justified.

Contention of counsel for the appellants that there was nopartition of land between the parties, is liable to be rejected. In proceedingsbefore the Civil Courts and in their RSA No.615 of 1982, it was virtuallyadmitted that the competent Court had ordered partition of the land,however, the proceedings were challenged by terming those as irregular/illegal. Even in their writ petition, grounds of this appeal and synopsis offacts initially supplied, passing of final order of partition and issuance ofSanad Takseem were virtually admitted. Subsequent thereto, in a veryunreasonable manner, an attempt was made to say that orders were illegal.In RSA No.615 of 1982 filed by the appellants, following orderwas passed by this Court on 18.5.1997:- “Heard. The prayer made in the application is for vacation of the stay order dated May 3, 1982. The appellantsfiled a suit for declaration that the partition proceedingsbefore the revenue court were without jurisdiction. Admittedlythose proceedings culminated in an order for partition andSanadhas also since been issued. There is a mention made inthe application of another bout of litigation between theparties with which we are not concerned. So far as theproceedings in the present appeal are concerned, had thepartition proceedings been pending the appropriate ad interimrelief which ought to have been granted was stay of thoseproceedings but since order for partition has already beenpassed the only appropriate interim relief is that of dispossession.

Consequently, I do not find any merit in this application,which is dismissed. No costs.”

Above said order clearly indicates that partition of the land andissuance of Sanad Takseem is not in dispute. Above said fact wasconfirmed by a Learned Single Bench of this Court when RSA No.615 of1982 filed by the appellants was dismissed on 25.5.2005.

We are of the opinion that by issuance of Sanad Takseem on5.8.1975, land falling to the share of private respondents was separated fromrest of the land owned by Smt.Kirpal Kaur and appellant No.1. Merelybecause the land was not separated by metes and bounds, will have noeffect, in view of peculiar circumstances of this case. The appellants did notallow the private respondents to implement the order of partition. Beforethe order could be implemented at the spot, they went to the Civil Court andgot a stay order passed, which continued till dismissal of their RSA by thisCourt on 25.5.2005. Thereafter, in this appeal, they got status quo orderpassed on 23.12.2005. After dismissal of their RSA on 25.5.2005, theprivate respondents moved an application for implementation of thepartition order. Again the appellants started the delaying tactics. As per theprovisions of Section 122 of the Punjab Land Revenue Act, 1887, afterissuance of the instrument of partition (Sanad Takseem), possession can bedelivered to the owner, within a period of three years from the date wheninstrument of partition was prepared. That provision reads as under:- “122. Delivery of possession of property allotted, onpartition.- An owner or tenant to whom any land or portion ofa tenancy, as the case may be, is allotted in proceedings forpartition shall be entitled to possession thereof as against the

other parties to the proceedings and their legalrepresentatives, and a Revenue-officer shall, on applicationmade to him for the purpose by any such owner or tenant atany time within three years from the date recorded in theinstrument of partition under the last foregoing section, giveeffect to that instrument so far as it concerns the applicant as if it were a decree for immovable property.”

Naturally, if a party to the partition, has got some stay orderpassed, when that stay order is vacated, the period will start running fromthe date the order is vacated.

In view of facts mentioned above, we dismiss this appeal anduphold order dated 25.5.2005 passed by the learned Single Bench. We alsoimpose costs of Rs.15,000/- on the appellants to be paid to the respondentsin equal proportion.

(JASBIR SINGH)JUDGE

July 31[st], 2009gk

(T.S.THAKUR)CHIEF JUSTICE