JAHURI SAH & ORS. versus DWARKA PRASAD JHUNJHUNWALA & ORS.

Citation: [1966] SUPP. 1 S.C.R. 280 · Decided: 27-04-1966 · Supreme Court of India · Bench: M. HIDAYATULLAH · Disposal: Dismissed
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Judgment (excerpt)

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 compensa-
tion to other c<>-owner for occupation of house-Relationship of 
tenant and landlord whether arises-Act whether applicable-Agree-
ment to pau compensation whether enforceable. 
Adoption-Existence of deed of adoption admitted-Oral evi-
dence 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 pay-
able by them to the respondents in respect of the latter's ~hare occu-
pied 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 appel-
lants resisted the suit on the grounds that: (il S had not been im-
pleaded 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 respon-
dents. 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 writ-
ten 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 docu-
ment \vhich by its sheer force brings a transaction into existence 
[284 D-E] 
. 
. 
(ii) The me:• fact that the defendants agreed to pay compensa-
tion to the plaml1fTs for their occupation of the plaintifT's share 
A 
c 
D 
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 relation-
H 
ship of Ia.ndlord and tenant lJetween the defendants and their co-
owners. 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 enjoy-
ment 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. 
E 
F 
G 
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 an
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