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TMI Blog2003 (3) TMI 759X X X X Extracts X X X X X X X X Extracts X X X X ..... perty was one of the items. P. Narayana Reddy had two sons, namely, P. Nithyananda Reddy, the respondent no.1 and P. Manohar Reddy and five daughters. Late P. Narayana Reddy, his wife and his two sons were arrayed as plaintiffs. Partition of joint family properties was sought for from the other branch of the family headed by brother of late P. Narayana Reddy. P. Narayana Reddy expired in the year 1981. By that time P. Manohar Reddy, the second son, had pre-deceased the father. Five daughters and the widow of pre- deceased son were brought on record by way of substitution in place of late P. Narayana Reddy and his wife who had also expired. A preliminary decree for partition was passed. At one stage in the appeals pending against the preliminary decree there was a compromise entered into by some of the parties in the year 1983. The compromise had the effect of allotting the suit property to the share of P. Nithyananda Reddy, the respondent no.1. However, the compromise decree was recalled and set aside on an application filed by some of the co-sharers who were not joined as parties to the compromise. The appeal against the preliminary decree is still pending. Final decree in the par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the respondent no.1 to be the owner. Rent upto January 1990 was deposited in the proceedings under Section 8(5) of the Act. The proceedings came to be dismissed in default of appearance of the applicant therein. On 24.1.1990, the appellants no. 3 to 5 before us got a sale deed of the suit premises executed in their favour from four daughters of P. Narayana Reddy and the widow of pre-deceased son late Manohar Reddy. P. Nithyananda Reddy, the respondent no.1 and his one sister, did not join in the execution of sale deed and therefore their rights, to the extent they may be, do not stand transferred to the appellants. P. Varadarajulu, respondent no.3 claims himself to be the tenant in the suit premises, while according to respondent no.1, it is the respondent no.2 who is the tenant and P. Varadarajulu was inducted illegally as a sub-tenant. The fact remains that subsequent to the execution of the sale deed dated 24.1.1990 referred to hereinabove, P. Varadarajulu, respondent no.3 has with the consent, express or implied, of G. Ithirajulu, respondent no.2, handed-over possession over the suit premises to the appellants no. 3 to 5 herein. The rights and interests of the respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 996 raising a similar plea. On 12.3.1996 the Rent Controller directed the eviction petition to be decreed. According to the Rent Controller the respondent no.1 was landlord of the suit premises and the respondent nos. 2 and 3 were the tenants having attorned in favour of respondent no.1, and therefore, the persons inducted into possession by them were also liable to be evicted along with them. On 24.7.1998 the Principal Senior Civil Judge dismissed the appeal, confirming the order of the Rent Controller. The Civil Revision preferred before the High Court also came to be dismissed on 2.12.1998. Two relevant facts may be stated here by way of clarification. The judgment of the High Court records under a mistaken apprehension as to the facts either on the part of the Court or on the part of the learned counsel for the appellants that the two sale deeds executed respectively in favour of the appellant nos. 3 to 5 and then appellant nos. 1 and 2 were unregistered and therefore did not have the effect of transferring title to them. It was conceded at the Bar and very fairly by the learned counsel for both the parties before us that the sale deeds are in fact registered and the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ply because the appellants have also acquired title of some of the co-owners it would not have the effect of merging the tenancy with ownership and bringing the landlord-tenant relationship between the respondent no.1 and respondent nos.2 and 3 to an end so as to get rid of their obligation of placing the landlord in possession of the tenancy premises on the tenancy coming to an end. It is not disputed that the tenancy premises have been demolished and new premises have been reconstructed in place of the old one by the transferees in connivance with the tenants. We have set out the facts in brief incorporating the bare essential details by way of backdrop. Certain neat questions of law arise for decision in this appeal. For dealing with those questions, we sum up and set out as follows the factual foundation on which we are now proceeding. Out of the several co-owners of the property, the respondent No.1 was a landlord dealing with the tenants as such and his landlordship was attorned to and acknowledged by the tenants; the respondents No.2 and 3 shall both be treated as tenants, as they themselves claim to be, without entering into the controversy whether one of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the whole of the property become vested at the same time in one person in the same right; xxx xxx xxx xxx A bare reading of the doctrine of merger, as statutorily recognized in India, contemplates (i) coalescence of the interest of the lessee and the interest of the lessor (ii) in the whole of the property (iii) at the same time (iv) in one person (v) in the same right. There must be a complete union of the whole interests of the lessor and the lessee so as to enable the lesser interest of the lessee sinking into the larger interest of the lessor in the reversion. In Badri Narain Jha Ors. Vs. Rameshwar Dayal Singh Ors., 1951 SCR 153, it was held by this Court that if the lessor purchases the lessee's interest, the lease no doubt is extinguished as the same man cannot at the same time be both a landlord and a tenant, but there is no extinction of the lease if one of the several lessees purchased only a part of the lessor's interest. In such a case the leasehold and the reversion cannot be said to coincide. In Shaikh Faqir Bakhsh Vs. Murli Dhar Ors., AIR 1931 PC 63, the plaintiff was holding on lease a portion of the entire propert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... coalesce in full either the water of larger estate is not deep enough to enable annihilation or the body of lesser interest does not sink or drown fully. It was submitted by the learned senior counsel for the appellants that assuming if the tenancy has not determined by merger still what was held by the respondents No.2 and 3 on tenancy was 'building' or super structure only and not the land beneath. Admittedly, the building has been demolished. As tenancy premises have ceased to exist, the tenancy has come to an end in view of the very subject matter of tenancy having ceased to exist. Assuming also that the act of the appellants is wrongful still the remedy of the respondent No.1 who is only a co-owner in the property would be to sue for partition and seek recovery of damages; a suit based on landlord-tenant relationship and seeking recovery of possession is misconceived and must fail, submitted the learned senior counsel Shri P.P. Rao. The tenancy cannot be said to have been determined by attracting applicability of the doctrine of frustration consequent upon demolishing of the tenancy premises. Doctrine of frustration belongs to the realm of Law of Con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... superstructure but also of its site. It would be different if not only the site but also the land beneath ceases to exist by an act of nature. In the present case the appellants who are the successors of the tenancy right have demolished the superstructure but the land beneath continues to exist. The entire tenancy premises have not been lost. Moreover, the appellants cannot be permitted to take shelter behind their own act prejudicial to the interest of the respondent No.1 under whom the respondents no.2 and 3 were holding as tenants and then inducted the appellants. In D.G. Gouse Co. (Agents) Pvt. Ltd. Vs. State of Kerala Anr., (1980) 2 SCC 410, while dealing with Entry 49 of List II of the Seventh Schedule of the Constitution, making a reference to Oxford English Dictionary, this Court has held that the site of the building is a component part of the building and therefore inheres in the concept or ordinary meaning of the expression 'building'. Referring to Corporation of the City of Victoria Vs. Bishop of Vancouver Island, AIR 1921 PC 240, it was held that the word 'building' must receive its natural and ordinary meaning as 'including the fabri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sad Jhunjhunwala Ors., (1966) Supp SCR 280). It is beyond any controversy that on the death of late P. Narayana Reddy, his rights devolved upon the several heirs including respondent no.1. The respondent no.1 is the only male person in the body of the co-owners, all others being women. It may be for this reason, or otherwise, that the respondent no.1 was in possession of the property, through tenants, realizing the rent peacefully and with the consent, expressed or implied, of other co- heirs of late P. Nithyananda Reddy. So far as the respondents no.2 and 3 are concerned, by operation of Section 116 of the Evidence Act, they were estopped from challenging or denying the ownership of the respondent no.1 and his rights in the tenancy premises. As held in Vasudeo Vs. Balkishan, (2002) 2 SCC 50, the rule of estoppel between landlord and tenant continues to operate so long as the tenancy continues and unless the tenant has surrendered possession to the landlord. The estoppel would cease to operate only on the tenant openly restoring possession by surrender to the landlord. Neither the respondents no. 2 and 3 nor their successors in interest or the persons claiming under them could ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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