# Laxman Das Sindhi v. Ganesh Prasad Sen & Ors

- **Citation:** (2022) 1 ILRA 88
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-12-09
- **Case number:** Second Appeal No. 1718 of 1988
- **Bench:** Syed Aftab Husain Rizvi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/laxman-das-sindhi-v-ganesh-prasad-sen-ors-47527
- **Pages:** 5

## Headnote

Sri R.P. Tewari, Sri K.P. Tewari, Sri Rama
Nand Gupta, Sri Rishikesh Tripathi, Sri S.S.
Sengar

A. Tenancy Rights - Suit for partition of
tenancy
rights
-
Maintainability
-
tenancy rights between joint tenants
can be subject to partition - suit for
partition is maintainable for partition of
tenancy rights - Joint tenants have right
to partition in the tenancy rights - mode
of partition - What will be the mode of
partition may depend upon the nature of
tenanted property which can be looked
into in final decree proceedings (Para
10)

B. Surrender of tenancy by one tenant -
Effect - surrender by one of the joint
tenants will not amount to surrender by
remaining joint tenants & it will not be
binding on the remaining joint tenants - A
joint tenant can surrender only his rights -
Remaining
tenants,
who
have
not
surrendered the tenancy right, their rights
of tenancy will exist (Para 13)

Chiranji Lal was the original tenant - after his
death his legal heirs became joint tenants of the
disputed shop, however only one of the joint
tenants i.e. defendant no. 1 was in actual and
exclusive possession of the disputed shop - During
pendency
of
the
case
defendant
no.
1
 surrendered the tenancy rights & gave possession
to the landlord who after taking possession let it to
the appellant (defendant no. 5 ) - now appellant is
sole tenant in possession of the disputed shop -
 Held - subject matter of the suit was tenancy
rights in the disputed shop which is no more inexistence and the tenanted shop is in exclusive
possession of the newly inducted tenant the
appellant. Hence, the suit has become infructuous
and now no decree for partition of tenancy rights
can be passed (Para 13)

Allowed.(E-5)
1 All. Laxman Das Sindhi Vs. Ganesh Prasad Sen & Ors.
89
List of Cases cited :

## Text

88 INDIAN LAW REPORTS ALLAHABAD SERIES

21. In any case, the appellants kept
sleeping over their rights for about 29 years
and allegedly elected to wake up on the
basis of some judgment of the High Court
relating to a different acquisition and the
village, and therefore, at this belated stage,
the impugned judgment cannot be made
amenable to judicial review. The appellant
wants to re-agitate the claims which they
had not pursued for about 29 years and
remained dormant and not vigilant and,
therefore, the inordinate delay of 28 years
and 355 days in filing the appeal without
there being any sufficient cause, cannot be
condoned.

22. In similar circumstances, this Court
has considered in detail the question of
condonation of delay and filing of such types of
appeal after expiry of 27-28 years of limitation
and dismissed the appeal by judgment dated
09.12.2016 passed in First Appeal No.126 of
2016 (Hari Singh Vs. State of U.P.).

23. In view of the aforesaid, the
application for leave to appeal as well as
the delay condonation application are
rejected. Consequently, this appeal is also
dismissed with cost of Rs.5,000/-, which
shall be deposited by the appellant within a
month from today with the Legal Cell
Authority, High Court, Allahabad.
----------
(2022)01ILR A88
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.12.2021

BEFORE

THE HON'BLE SYED AFTAB HUSAIN RIZVI, J.

Second Appeal No. 1718 of 1988

Laxman Das Sindhi ...Appellant
Versus
Ganesh Prasad Sen & Ors. ...Respondents
Counsel for the Appellant:
Sri S.M. Chaturvedi, Sri A.N. Bhargava,
Anita Misra, Sri S.M. Dayal, Sri Saurabh
Kumar Tiwari

Counsel for the Respondents:
Sri R.P. Tewari, Sri K.P. Tewari, Sri Rama
Nand Gupta, Sri Rishikesh Tripathi, Sri S.S.
Sengar

A. Tenancy Rights - Suit for partition of
tenancy
rights
-
Maintainability
-
tenancy rights between joint tenants
can be subject to partition - suit for
partition is maintainable for partition of
tenancy rights - Joint tenants have right
to partition in the tenancy rights - mode
of partition - What will be the mode of
partition may depend upon the nature of
tenanted property which can be looked
into in final decree proceedings (Para
10)

B. Surrender of tenancy by one tenant -
Effect - surrender by one of the joint
tenants will not amount to surrender by
remaining joint tenants & it will not be
binding on the remaining joint tenants - A
joint tenant can surrender only his rights -
Remaining
tenants,
who
have
not
surrendered the tenancy right, their rights
of tenancy will exist (Para 13)

Chiranji Lal was the original tenant - after his
death his legal heirs became joint tenants of the
disputed shop, however only one of the joint
tenants i.e. defendant no. 1 was in actual and
exclusive possession of the disputed shop - During
pendency
of
the
case
defendant
no.
1
 surrendered the tenancy rights & gave possession
to the landlord who after taking possession let it to
the appellant (defendant no. 5 ) - now appellant is
sole tenant in possession of the disputed shop -
 Held - subject matter of the suit was tenancy
rights in the disputed shop which is no more inexistence and the tenanted shop is in exclusive
possession of the newly inducted tenant the
appellant. Hence, the suit has become infructuous
and now no decree for partition of tenancy rights
can be passed (Para 13)

Allowed.(E-5)
1 All. Laxman Das Sindhi Vs. Ganesh Prasad Sen & Ors.
89
List of Cases cited :

1. Mohammad Bakhsh & ors. Vs Mana & ors.
1896 ILR 18 All 334

2. Dilip Kumar Vs Om Parkash & ors., R.F.A.
No. 73 of 2010 dt 13.8.2015 (Delhi High Court)

3. Iresh Duggal Vs Virender Kumar Seth
MANU/DE/3068/2014

4. Bharat Insulation Co. Vs Suraj Prakash
MANU/DE/1761/2015

5. H.C. Pandey Vs G. C. Paul 1989 Law Suit (SC)
264

6. Arya Kumar Ghosh & ors. Vs. IInd Addl.
District Judge, Allahabad & ors. 1979 ARC 242

(Delivered by Hon'ble Syed Aftab Husain
Rizvi, J.)

1. This second appeal has been filed
against the judgment and decree dated
18.7.1988 passed by Civil Judge, Jhansi in
Civil Appeal No. 201 of 1985 (Ganesh
Prasad and others vs. Ramesh Singh and
others).
Learned
appellate
court
has
allowed the appeal filed against the
judgment and decree dated 30.9.1985 in
Original Suit No. 70 of 1976 (Ganesh
Prasad and others Vs. Ramesh Singh and
others) set-aside the judgment and decree
of the trial court by which the original suit
was dismissed and has decreed the suit of
plaintiff for partition for a share of 3/8 in
the disputed shop.

2, In brief the facts are as follows:-

Ganesh Prasad and others filed a
suit for partition before the trial court. It
was pleaded that Chiranji Lal, father of
plaintiff nos. 1 and 2 and defendant no. 1
and husband of plaintiff no. 3 was tenant in
possession
of
shop
no.
393/2
Chamanganj Sipri Bazar, Jhansi and was
running a barber shop. Defendant no. 1 also
worked with him. Plaintiff was employed
in railway and whenever he got time and
opportunity he also performed the hair
cutting work and plaintiff no. 2 also
cooperated in the said vocation. Chiranji
Lal died on 23.8.1974. After the death of
Chiranji Lal plaintiffs and defendant no. 1
became tenants of the shop and came in
possession. Defendant no. 1 with malafide
intention of getting exclusive possession
stopped giving the accounts of income.
Plaintiffs have 3/4 share in the tenancy of
the shop. The length of the alleged shop is
16 fit and width 8 fit and it can be
partitioned between the parties.

3. Defendants in their written
statements denied that plaintiffs are tenant
of the disputed shop. They further pleaded
that tenancy rights can not be partitioned. It
was further alleged in the written statement
that plaintiff no. 1 is an employee of
railway while plaintiff no. 2 is a teacher.
Plaintiff no. 3 being a woman of the
plaintiff are not doing vocation of hair
cutting. If the disputed shop is partitioned
and any construction is erected then the
landlord will evict him. Lastly it was also
pleaded that tenancy rights can be acquired
by succession but it cannot be partitioned.
Defendant no. 5 filed separate written
statement in which he denied the plaint
case and further pleaded that plaintiffs and
other defendants have no concern with the
disputed shop. They are not entitled to get
possession of the disputed shop. No
permanent partition can be made. The
owner of the disputed shop is Sri 1008
Raghunathji
temple
and
answering
defendants is its tenant on a monthly rent of
Rs. 75/- and in possession of the disputed
90 INDIAN LAW REPORTS ALLAHABAD SERIES
shop. After getting the disputed shop on
rent the answering defendant has invested a
lot of money in it and got it reconstructed.
He is regularly paying the rent to the
landlord and running hotel business in it.
He also pays the electricity and water tax
dues.
Plaintiff
has
not
arrayed
Sri
Raghunathji temple who is necessary party
while plaintiff nos. 1 to 4 have been
wrongly impleaded. Neither plaintiffs nor
defendant nos. 1 to 4 are in possession of
the disputed shop. They are also not tenant
of the disputed shop, hence, the plaintiffs
have no right to get the disputed shop
partitioned.

4. Learned trial court framed 12
issues and after taking evidence from both
the parties held that plaintiffs have failed to
prove that they have 3/4 share as co-tenants
in the shop in dispute. It further held that
tenancy rights can not be partitioned.
Tenants have only right to use the tenanted
property, hence, suit for partition is not
maintainable. On the basis of the aforesaid
findings the learned trial court dismissed
the suit by the judgment and order dated
30.9.1985.

5. Aggrieved by the aforesaid
judgment and decree plaintiffs filed Civil
Appeal No. 201 of 1985. The learned first
appellate court reversed the findings of
the trial court and held that plaintiffs
being joint tenants have 3/8 share in the
disputed shop and further that tenancy
rights can be subject to partition. Learned
first
appellate
court
set-aside
the
judgment and decree of the trial court and
decreed the plaintiffs suit in the terms
that plaintiffs having title in the disputed
shop, have right to get possession of 3/8
share of the disputed shop and use it and
has ordered to prepare preliminary decree
in the aforesaid terms.

6. Following substantial questions of
law are involved in the second appeal:

i) Whether the tenancy rights can
be subject to partition and suit for partition
is maintainable for partition of tenancy
rights ?

ii) What will be the effect of
surrender of tenancy right of respondent no.
4 (defendant no.1) being in exclusive
possession of the disputed shop and
possession being delivered to the landlord
and thereafter to appellant (defendant no.
5).

7. Learned counsel for the appellant
(defendant no. 5) vehemently contended
that suit for partition was not maintainable.
No partition by metes and bounds of
disputed shop can be made between the
tenants as it will involve construction
which will come in the category of material
alteration, not permitted by the Rent
Control Act and also can be a ground for
eviction of the tenant. Learned counsel also
contended that the disputed shop is very
small in size, hence, physical partition is
not possible. Lastly he contended that
tenancy rights can not be subject to
partition.

8.

Learned
counsel
for
the
respondents in reply contended that a suit
for
partition
of
tenancy
rights
is
maintainable and tenancy rights can be
subject to partition between joint tenants.
Learned counsel contended that after the
death of Chiranji Lal all his legal heirs the
respondents by way of inheritance became
joint tenants. Learned counsel further
contended that no construction of any
permanent nature will be required for
partition of the disputed shop. It can be
conveniently partitioned between the joint
tenants by temporary partition wall and can
1 All. Laxman Das Sindhi Vs. Ganesh Prasad Sen & Ors.
91
be used by all the joint tenants as per their
share.

9. It is not disputed that property in
question is commercial in nature, hence,
after the death of Chiranji Lal all his legal
heirs will inherit as joint tenants. Now the
legal question is whether the tenancy rights
can be subject to partition. The Allahabad
High Court way back in 1878 in the case of
Mohammad Bakhsh and others Vs. Mana
and others 1896 ILR 18 All 334 has held
that tenancy rights between joint tenants
can be subject to the partition. Delhi High
Court in R.F.A. No. 73 of 2010 decided on
13.8.2015, in case of Dilip Kumar Vs. Om
Parkash and others relying on earlier
decisions Iresh Duggal Vs. Virender
Kumar Seth MANU/DE/3068/2014 and
Bharat Insulation Co. Vs. Suraj Prakash
MANU/DE/1761/2015 has answered the
question in positive and held that there is
no bar in any law whatsoever to partition
the tenancy rights.

10. The learned Single Judge while
answering the question of partition of
tenancy rights and maintainability of
partition suit has also taken into account the
contention which are being raised by the
counsel for the appellants that due to its
smaller size or otherwise the property is not
devisable by metes and bounds and has
observed that even if the tenancy premises,
owing to its small size or otherwise owing
to the restrictions placed by the landlord are
not divisible by metes and bounds, the
same can always be partitioned by one or
more
of
the
several
legal
heirs
appropriating
the
tenancy
rights
to
himself/themselves to the exclusions of
others in consideration of payment of
ovalty or otherwise to the other legal heirs.
So the law is clear on this point. Joint
tenants have right to partition in the
tenancy rights. What will be the mode of
partition may depend upon the nature of
tenanted property which can be looked into
in final decree proceedings. The findings
recorded by the first appellate court on this
point is according to law and just and
proper. There is no illegality in this finding
of the learned appellate court. The learned
trial court has failed to appreciate the point
of law in this regard and findings recorded
by it was erroneous. Learned appellate
court has rightly reversed the findings of
the trial court on this point.

11. Learned counsel for the appellant
further contended that after the death of
Chiranji Lal respondent no. 4 was in actual
exclusive possession of the disputed shop.
He was paying the actual rent. On 5.1.1982
he surrendered the tenancy rights and gave
possession to the landlord who after taking
possession let it to the appellant and now
appellant is in possession of the disputed
shop. Learned counsel contended that the
respondents have no right regarding the
disputed shop and appellant is sole tenant
in possession, hence, suit for partition is not
maintainable.

12.

Learned
counsel
for
the
respondents contended that Chiranji Lal
was the original tenant and after his death
the legal heirs became joint tenants of the
disputed shop. Surrender by one of the joint
tenants will not be binding on the
remaining joint tenants and will apply only
to the extent of the share of respondent no.
4. Remaining respondents have never
surrendered the tenancy right in favour of
the landlord, hence, their rights of tenancy
will exist and suit for partition is
92 INDIAN LAW REPORTS ALLAHABAD SERIES
maintainable.
Learned
counsel
placed
reliance on the following citations:-

(i) 1989 Law Suit (SC) 264 H.C.
Pandey Vs. G. C. Paul

(ii) 1979 ARC 242 Arya Kumar
Ghosh and others Vs. Iind Addl. District
Judge, Allahabad and others.

13. It is not disputed that Chiranji Lal
was the original tenant of the shop and
plaintiffs and defendant no. 1 to 4 are their
legal representatives. The disputed shop is
a commercial property, hence, after the
death of Chiranji Lal all of his legal
representatives will inherit the tenancy
rights as joint tenants. It also stands proved
from the evidence that only defendant no. 1
Ramesh Sen was professing vocation of
hair cutting with his father in the disputed
shop and after the death of Chiranji Lal he
was in exclusive possession. None of the
plaintiffs were in possession at any period
of time in the disputed shop. It is true that
surrender by one of the joint tenants will
not amount to surrender by remaining joint
tenants. A joint tenant can surrender only
his rights. But in the present case only one
of the joint tenants namely Ramesh Sen
(defendant no. 1) was in actual and
exclusive possession of the disputed shop.
During
pendency
of
the
case
he
surrendered tenancy rights in favour of
landlord and in pursuance thereof he also
handed over the possession of the entire
shop to the landlord who let it to the
appellant (defendant no. 5) Lakshman Das
Sindhi. It also stands proved from the
evidence that at present only appellant
Lakshman Das Sindhi is in possession of
the disputed shop as tenant. So in the
circumstances of the present case the rights
of other joint tenants plaintiffs and
defendant nos. 2 to 4 if any have become
extinguished. Implied surrender will be
presumed. The subject matter of the suit
was tenancy rights in the disputed shop
which is no more in-existence and the
tenanted shop is in exclusive possession of
the newly inducted tenant the appellant.
Hence, the suit has become infructuous and
now no decree for partition of tenancy
rights can be passed. The second question
is decided in the aforesaid terms.

14. From the above discussions it is
clear that subject matter of the present case
has become extinguished. There is no
tenancy rights of respondents in-existence,
hence, the suit has become infructuous and
is liable to be dismissed in the aforesaid
terms. The second appeal is liable to be
allowed.

15. The second appeal is allowed.
Judgment and decree dated 18.7.1988
passed by Civil Judge, Jhansi in Civil
Appeal No. 201 of 1985 Ganesh Prasad and
others Vs. Ramesh Singh and others is
hereby set-aside. The original suit no. 70 of
1976 (Ganesh Prasad and others Vs.
Ramesh Singh and others) stand dismissed.

Parties shall bear their own costs.
----------

(2022)01ILR A92
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.12.2021

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJAI TYAGI, J.

First Appeal From Order No. 38 of 2013

Brijendra Singh & Anr. ...Appellants
Versus
Sunil Rai & Anr. ...Respondents