# JAHURI SAH & ORS v. DW ARKA PRASAD JHUNJHUNW ALA & ORS

- **Citation:** [1966] Supp. 1 S.C.R. 280
- **Court:** Supreme Court of India
- **Decided:** 1966
- **Case number:** Civil Appeal No. 193 of 1964
- **Bench:** M. HIDAYATVLLAll, J. R. MuDHOLKAR, R. S. Bacha Wat, J.M. Shelat
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/jahuri-sah-ors-v-dw-arka-prasad-jhunjhunw-ala-ors-3853
- **Pages:** 6

## Headnote

Bihar Buildings (Lease, Rent and Eviction) Control Act 1947
(Bihar Act 3 of 1947)-Co-owner of house agreeing to pay compensation to other c<>-owner for occupation of house-Relationship of
tenant and landlord whether arises-Act whether applicable-Agreement to pau compensation whether enforceable.
Adoption-Existence of deed of adoption admitted-Oral evidence whet~er barred.
Two Hindu undivided families one of them being represented by
the appellants and the other by the respondents were co-owners of a
house which was purchased by them jointly. The appellants occupied
a major portion of the house on an agreed compensation being payable by them to the respondents in respect of the latter's ~hare occupied by them. On the compensation not being paid as agreed, the
respondents filed a suit for its recovery, as well as for partition. In
the plaint one S was mentioned as having been adopted out of the
plaintiff family and for that reason he was not impleaded. The appellants resisted the suit on the grounds that: (il S had not been impleaded alt.hough a co-owner, (;i) th" S'Uit was barred by the Bihar
Building (Lease, Rent and Eviction) Control Act, 1947 (Bihar Act 3
of 1947), and (iii) the contract fCJr payment of compensation was not
enforceable as there was no ouster of the plaintiffs by the respondents. The trial court decided in favour of the appellants but the
High Court held against them. They came to this Court by special
leave.
HELD: (i) The suit was not incompetent because S was not
made a party thereto. The fact of adoption was stated in the plaint
and had not been specifically denied by the appellants in their written statements. No specific issue on the question of adoption \Vas
raised and it could not be therefore argued that S's adoption had not
lJeen established. [284 A-B. Fl
Oral evidence of the fact of adoption did not become inadmissible
merP.ly brcause the existence of a deed of adoption \Vas admitted. A
deed of adoption merely records the fact that an adoption had taken
place and noth!ng more. Such a deed cannot be likened to a document \vhich by its sheer force brings a transaction into existence
[284 D-E]
.
.
(ii) The me:• fact that the defendants agreed to pay compensation to the plaml1fTs for their occupation of the plaintifT's share
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would. not brmg mto existence a relationship of landlord and tenant.
B~ this agreement the part 1es never intendP.d to constitute a relationH
ship of Ia.ndlord and tenant lJetween the defendants and their coowners. B1har Act 3 of 1947 was therefore inapPlicable and the suit
could not be said to be barred under its provisions. [285 CJ
,
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JAHURT SAii i·. JJIUNJllUNWAl.A (Mudlwlkar, .l.)
281
(iii) Co-owners are legally competent to come to any kind of
agreement for the enjoyment of their undivided property and are
free to lay down any terms covering the enjoyment of the property.
Ouster of a co·owner is not a sine qua non for enabling him to claim
compensation from the co-owner who is in occupation and enjoyment of common property. [285 E-F]

## Text

JAHURI SAH & ORS.
v.
DW ARKA PRASAD JHUNJHUNW ALA & ORS.
April 27. 1966
[M. HIDAYATVLLAll, J. R. MuDHOLKAR, R. S. BACHA WAT AND J.M.
SHELAT, JJ.J
Bihar Buildings (Lease, Rent and Eviction) Control Act 1947
(Bihar Act 3 of 1947)-Co-owner of house agreeing to pay compensation to other c<>-owner for occupation of house-Relationship of
tenant and landlord whether arises-Act whether applicable-Agreement to pau compensation whether enforceable.
Adoption-Existence of deed of adoption admitted-Oral evidence whet~er barred.
Two Hindu undivided families one of them being represented by
the appellants and the other by the respondents were co-owners of a
house which was purchased by them jointly. The appellants occupied
a major portion of the house on an agreed compensation being payable by them to the respondents in respect of the latter's ~hare occupied by them. On the compensation not being paid as agreed, the
respondents filed a suit for its recovery, as well as for partition. In
the plaint one S was mentioned as having been adopted out of the
plaintiff family and for that reason he was not impleaded. The appellants resisted the suit on the grounds that: (il S had not been impleaded alt.hough a co-owner, (;i) th" S'Uit was barred by the Bihar
Building (Lease, Rent and Eviction) Control Act, 1947 (Bihar Act 3
of 1947), and (iii) the contract fCJr payment of compensation was not
enforceable as there was no ouster of the plaintiffs by the respondents. The trial court decided in favour of the appellants but the
High Court held against them. They came to this Court by special
leave.
HELD: (i) The suit was not incompetent because S was not
made a party thereto. The fact of adoption was stated in the plaint
and had not been specifically denied by the appellants in their written statements. No specific issue on the question of adoption \Vas
raised and it could not be therefore argued that S's adoption had not
lJeen established. [284 A-B. Fl
Oral evidence of the fact of adoption did not become inadmissible
merP.ly brcause the existence of a deed of adoption \Vas admitted. A
deed of adoption merely records the fact that an adoption had taken
place and noth!ng more. Such a deed cannot be likened to a document \vhich by its sheer force brings a transaction into existence
[284 D-E]
.
.
(ii) The me:• fact that the defendants agreed to pay compensation to the plaml1fTs for their occupation of the plaintifT's share
A
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E
p
G
would. not brmg mto existence a relationship of landlord and tenant.
B~ this agreement the part 1es never intendP.d to constitute a relationH
ship of Ia.ndlord and tenant lJetween the defendants and their coowners. B1har Act 3 of 1947 was therefore inapPlicable and the suit
could not be said to be barred under its provisions. [285 CJ
,
A
B
JAHURT SAii i·. JJIUNJllUNWAl.A (Mudlwlkar, .l.)
281
(iii) Co-owners are legally competent to come to any kind of
agreement for the enjoyment of their undivided property and are
free to lay down any terms covering the enjoyment of the property.
Ouster of a co·owner is not a sine qua non for enabling him to claim
compensation from the co-owner who is in occupation and enjoyment of common property. [285 E-F]
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 193 of
1964.
Appeal from the judgment and decree dated May 13, 1960
of the Patna High Court in Appeal from Original Decree No. 132
of 1955 and order dated February 15, 1962 in M. J. C. No. 265
of 1961.
c
Sar;oo Prasad, S. C. Sinha and B. P. Jha, for the appellants.
S. T. Desai and R. C. Prasad. for the respondents.
The Judgment of the Court was delivered by
'"*
Mudholkar, J. This is an appeal by certificate from a judg-
' '
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ment of the Patna High Court reversing that of the trial court
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dismiss;ng the plaintiffs' suit for partition and separate possession
of t:1eir half share in a house and for payment of compensation
from May 2, 1947 to September 11, 1951 at the rate of Rs. 200/-
p.m. with interest and for payment of compensation at the same
rate from the date of suit till the recovery of possession of theii;
share in the house.
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The facts which are not disputed before
us
are
these:
The property in dispute which is situate within
the
limits of
the municipality of Bhagalpur was purchased jointly by
five
persons, Juri Mal, Gajanand, Ramasahai Sah, Jahuri Sah and
Ramgali Sah. The first two of these are father and son (and
were members of a joint Hindu family).· Both of them are dead.
Plaintiffs 1 to 4 are the sons and plaintiff 6 is the widow of Gajanand and plaintiff No. 5 is the widow of Jurimal. Jurimal, Gajanand (constituted a joint Hindu family)
and
plaintiffs 1 to 4
constituted a joint Hindu family. Ramsahai, Jahauri Sah and
Ramgali were brothers and were members of a
joint Hindu
family. Jahuri Sah is defendant No. 1 and Ramgali Sah is defendant No. 2. They, along with
the remaining
defendants, are
members of a joint Hindu family of which J ahauri Sah is the
kart a.
The property in question was purchased by the two joint
families, each family having ha.Jf interest therein. The date of the
transaction was June 26, 1942. At the time of the purchase of
the property it was in the possession of Mohanlal Marwari as a
tenant. He was evicted therefrom by a decree of the court and
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thereafter it was let out to Government, the compensation having
been settled at Rs. I 00 /- per mensem. The Government vacated
the house after some time whereafter the defendants occ11pied the
L/S5SCI-20(a)
282
BUPREllE OOUJIT REPORTS
(1966] SUPP. 8.C.R,
house excepting a portion thereof which was in the occupation
A
of Isri Sah and Shib Charan Sah as tenants paying a monthly
rent of Rs. 30/-. Half of this rent was being realised by each
family.
According to the plaintiffs when the defendants entered into
possession of the property they agreed to pay
Rs. 200/-
per
mensem as compensation to the plaintiffs' family with respect to
their half share in the property. They, however, did not pay any
compensation to the plaintiffs despite 1he agreement.
On these allegations the plaintiffs instituted their suit. In the
plaint they stated that Gajanand had another son named Shankarlal but he was given in adoption to Sreclal, P. W. 6 and he was,
therefore, not joined as party to the suit.
The defendants denied the claim and stated that the sui~
was barred by the provisions of the Bihar Buildings <Lease, Rent
and Eviction) Control Act, 1947 (Bihar Act 3 of 1947) (hereafter
referred to as the Act) as well as by the rule of cstoppel. They
also raised the plea that under the contract entered into between
the two families Rs. 50/- p.m. was payable as compensation and
not Rs. 200 /- p.m. as alleged by the plaintiffs. According to them
the suit was barred by the rule of estoppel. They contended that
the claim for compensation for a period prior to the expiry of
3 years from the date of suit was barred by time. They also raised
some other contentions in the written
statement but it is unnecessary to refer to them inasmuch as we must confine ourselves
to the points urged before us by Mr. Sarjoo Prasad on their
behalf. The points arc: (I) that the suit for partition and separate
possession was not maintainable; and (2) that the contract under
which the plaintiffs claimed compensation is
not
enforceable.
The suit is said to be not maintainable because
(a) one of the
co-owners of the property was not joined as a party to the suit
and (b) also because it was barred by the Act. The contract for
payment of compensation was said to be not enforceable as there
was no ouster of the plaintiffs by the defendants.
The trial court held that the provisions of the Act applied
and by virtue of those provisions the plaintiffs were not entitled
to a decree for eviction of the defendants nor were they entitled
to a decree for compensation and that the adoption of Shankarlal
not having been proved the suit as constituted was not maintainable.
On this point the High Court arrived at different conclusions. The view taken by the High Court was that the provisions
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of the Act did not apply to this case. that the defendants not
having specifically denied the fact of adoption and no issues
thereon having been raised the trial court erred in holding that
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the adoption was not proved and that non-joinder of Shankarlal
was not an impediment to the institution of the suit. Further
•
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G
n
jAlfURI SAll v. JllUJljHTJNWAM
(!vlwlholkar, J.)
283
according to the High Court the contract to pay compensation at
the rate of Rs. 200 /- p.m. was duly established and that as it
was competent to a civil court to enforce the contract the suit for
recovery of arrears of compensation was maintainable. The High
Court accepted the
defendants'
contention that the claim for
arrears must be limited to a period of three years prior to ths
institution of the suit. It allowed interest on the arrears at 6 %
p.a. and decreed the claim of the plaintiffs for partition and for
arrears of compensation. The plaintiffs then
moved the High
Court under s. 151 read with O.XX, r. 18, Code of Civil Procedure for granting them appropriate relief with respect to their
claim for compensation, for use and occupation of the house
from the date of suit till delivery of possession of their share
after passing the final decree. The High Court allowed this application and directed that the plaintiffs shall also be entitled to
compensation from the date of institution of the suit until recovery of physical possession of their share after partition or until
the expiry of three years from the date of its decree, whichever
event first occurs. It also made an appropriate order regarding
costs.
Aggrieved by this decree of the High Court as amended by
its subsequent order upon the plaintiffs' application under s. 151
read with O.XX, r. 18, C.P.C. the defendants have come up to
this Court.
In our opinion the High Court was right in holding
that
the Act is inapplicable to this case. The plaintiffs and defendants
were admittedly co-owners of the property. As the property had
not been partitioned it was open to either or both the parties to
occupy it. The defendants occupied the property except a small
portion which was in possession of the tenants. The plaintiffs
acquiesced in it because of an agreement between the parties that
the defendants would pay Rs. 200 /- p.m.
as
compensation to
them. The defendants did not dispute that there was an agreement
about payment of compensation between the parties but their
plea was that the amount agreed to was Rs. 50 /- p.m. and not
Rs. 200 /- p.m. Their contention in this behalf was rejected by
the High Court which accepted the plaintiffs' contention that the
amount was Rs. 200 /- p.m. This part of the High Court's judgment is not challenged before us by Mr. Sarjoo Prasad. He, however. challenged the finding of the High Court that the claim to
compensation was enforceable. But before we
deal
with
this
matter it would be appropriate to deal with the reasons given by
him in support of the contention that the suit was not maintainable. He reiterated the argument urged before the
trial
court
based upon the non-joinder of Shankarlal as a party to the suit.
According to him. as Shankarlal's adoption has not been established by the plaintiffs he was also a co-owner of the property
SUPREME COURT REPORTS
(1966] SUPP. S.C.R.
and his non-joindcr as a party to the suit rendered the suit incompetent. The High Court has pointed out that the plaintiffs
have clearly stated in para 1 of the plaint that Shankarlal had
been
given
in
adoption
to
Srcelal.
In
neither
of
the
two written statements liled on behalf of the defendants has this
assertion of fact by the plaintiffs been specifically denied. Instead,
what is stated in both these written statements is that the defendants have no knowledge of the allegations made in para I of the
plaint. Bearing in mind that O.VllI, r. 5, C.P.C.
provides that
every allegation of fact in the plaint, if not denied specifically
or by necessary implie<1tion or stated to be not admitted in the
pleading of the defendant shall be t,1ken to be admitted, to say
that a
defendant has
no knowledge of a fact pleaded by the
plaintiff is not tantamount to a denial of the existence of that
fact, not even an implied denial. No specific issue on the question
of adoption was. therefore, raised. In the circumstances the High
Court was right in saying that there
was
no occasion for the
parties to lead any cnvdence on th.e point. However. Srcclal who
was examined as a witness on behalf of the plaintiffs has spoken
about the fact of adoption and his statement can at least be regarded as prima facie evidence of adoption. It is true that he
admits the existence of a deed of adoption and of its non-production in the court. This admission. however, would not render oral
evidence inadmissible because it is not by virtue of a deed of
adoption that a change of status of a person can be effected. A
deed of adoption merely records the fact that an adoption had
taken place and nothing more. Such a deed cannot be likened
to a document which by its sheer force brings a transaction into
existence. It is no more than a piece of evidence and the failure
of a party to produce such a document in a suit does not render
oral evidence 111 proof of adoption inadmissihle. We. therefore.
agree with the High Court that the plaintiffs' suit for partition of
their half share in the property was
not
incompetent
because
Shankarlal was not made a party thereto.
We will now deal with the other ground urged by Mr. Sarjoo
Prasad in support of hi, contention that the suit is
not
maintainable. Under sub-s. (21 of s. 11 of the Act as it stood on the
date of the suit a claim for eviction of a tenant or a claim for
recovery of possession of a building and claim for rent thereof
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had to be made before the Rent Controller alone and consequG
ently the jurisdiction of the civil court for the enforcement of such
claims was ousted. But, for the provisions of this section to apply.
the relationship between the plaintiff and the defendant should
be that of a landlord and tenant.
If they arc co-owners of the
property and the property is held by them as tenants-in-common
no question of relationship of landlord and tenant
comes into
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being as between them. The common case of the parties is that
they are in fact co-owners of the property and
the
respective
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,IAHU!U SAH v. JHIJNJHUNWALA (Mudholkai", J.)
285
shares of the two families have not been demarcated. They, therefore, continue to be tenants in common. It is true that the entire
property (save a small portion which was in possession of tenants)
is in the actual occupation of the defendants which means that
they are in occupation not only of their share in the property
but also of the plaintiffs' share. That fact, however, would not
make them tenants of the plaintiffs. Under the law each tenantin-common is entitled to the possession of the entire property,
that is, to every part of it though its right to possession is limited
to the extent of the share in the property. The mere fact that the
defendants agreed to pay cgmpensation to the plaintiffs for their
occupation of the entire property (ignoring the portion in possession of the tenants) would not bring into existence a relationship
of landlord and tenant. By this agreement, the
parties never
intended to constitute a relationship of landlord and tenant between the defendants and their co-owners. The provisions of the
Act are, therefore, inapplicable. The second ground urged by Mr.
Sarjoo Prasad, therefore, fails.
What we have to consider then is whether the contract for
payment of compensation is not enforceable. It is no dbubt true
that under the law every co-owner of undivided property is
entitled to enjoy the whole of the property and is not liable to
pay compensation to the other co-owners who have not chosen
to enjoy the property. It is also true that liability to pay compensation arises against a co-owner who deliberately excludes the
other co-owners from the enjoyment of the property. It does not,
however, follow that the liability to pay compensation arises only
in such a case and no other. Co-owners are legally competent to
come to any kind of arrangement for the enjoyment of their undivided property and are free to lay down any terms concerning
the enjoyment of the property. There is no principle of law which
would exclude them from providing in the agreement that those
of them as arc in actual occupation and enjoyment of the property
shall pay to the other co-owners compensation. No authority was
cited by learned counsel in support of his contention that ouster
of a co-owner is a sine qua non for enabling him to claim compensation from the co-owner who is in occupation and enjoyment of common property. We, therefore, reject the contention.
In the circumstances, therefore, we dismiss the appeal with
costs.
Appeal dismissed.