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Judgment
AS No. 1361 of 1985 is filed by the plaintiff, AS 1677 of 1985 by defendants 1, 2 and 3 and AS 1678 of 1985 by defendants 4 to 9.
All the appeals arise out of the same judgment in OS No.33 of 1984 on the file of the Subordinate Judge, Tadepalligudem, and they are, therefore, taken up for disposal by a common order.
The suit was for partition of the plaint schedule property into fifty shares by metes and bounds and for allotment of 11/50th share to the plaintiff and for mesne profits. The suit was decreed against defendants 1 to 9 and dismissed as against defendant-10, each party to bear its own costs. A preliminary decree was passed for partition of the plaint schedule items 3 to 16 into fifty shares by metes and bounds and allotment of 11/50th share to the plaintiff. The relief for mesne profits was rejected. The plaintiff and defendants 1 to 9 were held to be entitled for the lease amount paid by 10th defendant for the lease of items 1 and 2, the rice mill, according to their shares, until 10th defendant was duly evicted from the premises.
The appellants, having obtained the decree for partition, but aggrieved by the finding with regard to dismissal of the suit against 10th defendant for partition of items 1 and 2 on the ground that the provisions of A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 (for short ''the Act''), apply to items 1 and 2 of the suit schedule (rice mill) which has been leased out to 10th defendant, have chosen to file the appeals. The facts relevant for the disposal of the appeals are briefly stated as under:
The parties are referred to as they are arrayed in the suit.
One Venkata Lakshmi Seshagiri Suryanarayana died leaving his wife, four sons and five daughters. 1st defendant is the wife. Defendants 2 to 4 are his sons and defendants 5 to 9 are his daughters. Defendants 4 to 9 were minors on the date of the suit. 10th defendant was the lessee of rice mill, items 1 and 2 of suit schedule. Plaintiff''s father died 5 years before filing the suit. The family was joint and it continued to be joint even after the death of their father. 1st defendant was managing the joint family property after the death of her husband. The plaintiff has been acting as permanent village Karanam. The family, apart from residential house, was owning about Ac.16 of wet land and in Umidurru village. The family also has a very valuable boil and raw rice mill mentioned in item-1 of the suit schedule, along with the land attached to the said mill, which is item-2 of the suit schedule. It was leased out to 10th defendant in the year 1975 under registered lease deed for the purpose of rice milling business for a period of 2 years 9 months on an annual rent for Rs.7500/-. It was renewed on 7-11-1977 for another period of 2 years 9 months on an annual rent of Rs.11,100/-, which expires on 6-8-1980. Even before the expiry of the lease, the plaintiff expressed his disinclination to renew the lease any longer as the rentals were too low and for the reason that the family members decided to run the mill by themselves. The request of 10th defendant for renewal was rejected. 10th defendant, therefore, deceiving the members of the family, successfully entered into a lease for another period of 2 years 9 months commencing from 7-9-1980 on an annual rent of Rs.18,000/-. The said lease deed was not executed by the plaintiff. He was not aware of the same at all. But it was executed by 1st defendant and plaintiff''s brothers, who were not worldly-wise and were not aware of the machinations of 10th defendants and the loss that it would cause to the family. The rentals were shockingly low and the prevailing annual rentals in the market were not less than Rs.40,000/-. The alleged lease was illegal as it was executed by a widow, who was not a coparcener, on behalf of defendants 4 and 9, who were minors. The plaintiff and defendants 5 to 8 did not join in the execution of the lease deed. The lease is therefore void not binding on the plaintiff. The plaintiff got issued a notice to all the defendants and D.10 dated 3-9-1980 to handover the vacant possession of the rice mill. Strained feelings developed between the members of the family. Hence, the plaintiff did not want to continue any longer in the joint family. As such he filed the suit for partition of the suit schedule properties and delivery of his share. The plaintiff claimed 11/50th share and each of the defendants 2 to 4 gets 11/50th share and defendants 1 and 5 to 9 would get each l/50th share. Defendants 1 to 9 raised no objection for partition of the plaint schedule properties. They however, denied, the allegation that after me death of Suryanarayana, 1st defendant was the Manager of the joint family. It is their case that the plaintiff, being the village Karanam in the village and being the seniormost adult coparcener, has been himself looking after the cultivation of the lands and management of the mill and other properties, living along with the members of the family in the same joint family house. It is the uniform case of all the defendants that the lease dated 5-8-1980 was tainted with fraud and misrepresentation played by 10th defendant. Taking advantage of the inexperience and the tender age of 2nd and 9th defendants, 10th defendant got the lease deed executed by 1st defendant who was not authorised to execute the lease deed. The lease deed, therefore, is void and inoperative. 10th defendant, however, pleaded that he was the lessee of the rice mill right from the time of the father of the plaintiff, that he approached the plaintiff and the defendants for renewal of the lease, after the lease expired on 5-8-1980 and the plaintiff and defendants 1 to 3 agreed for fresh lease on an annual rent of Rs.18,000/-. Few days thereafter, however, the plaintiff changed his mind and began talking in different way. After much talking and explanation, the plaintiff and defendants 1 to 3, however, agreed giving the mill on lease for an amount of Rs.18,000/- p.a. At the time of execution and registration of lease deed the plaintiff did not turn up. Hence, the lease deed was executed by defendants 1 to 4. Thus, he validly obtained the lease. It is further averred that the appellants are not entitled to the improvements made to the rice mill by him.
10th defendant subsequently amended the written statement by which he raised an additional ground stating that the lease was a lease of building including the machinery, 10th defendant became the statutory tenant, entitled for protection under the provisions of the Act and his possession could not be disturbed by way of the suit.
On the above pleadings several issues have been framed. The issues that are relevant for our purpose in these appeals are as follows:
"1. Whether Rent Control Act 1960 applies to items 1 and 2 of plaint schedule? If so, D-10 is entitled to the benefits of the Act?
Addl. issues as per order dated 11-3-1983 in IS No.384 of 1983:
Whether the lease deed dated 5-8-1980 executed between 1 to 4 defendants and the 10th defendants in respect of 1 and 2 items of the plaint schedule is true, valid and binding on the plaintiff and 1 to 9 defendants.
Whether the said lease deed was vitiated by fraud, misrepresentation, and coercion exercised by the 10th defendant, on 1 to 4 defendants and as such is void and inoperative against them under the circumstances alleged in the written statement?
Whether the said lease deed was executed subject to the condition and that it shall come into force subject to the condition of the plaintiff and 5 to 9 defendants joining in its execution and if so for want of their consent it is incomplete, void and inoperative under the circumstances stated in the written statements of 1, 2 and 3 defendants.
Whether the said lease is forfeited and determined on account of the wilful default of the 10th defendant in payment of the rent accrued for the first instalment on the due date i.e., 7-12-1980 and if so whether he is bound to surrender possession of the demised properties?
Whether 1 to 9 defendants are each entitled to a decree for partition and separate possession of the respective shares in the suit properties?"
The plaintiff examined 2 witnesses. He examined himself as PW1. PW2 is one Datla Narasimha Raju. On behalf of the defendants DWs.1 to 6 were examined. Defendants 1, 2, 3, 5 and 10 are examined, as DWs. 1, 2, 3, 5 and 6. DW4 is one Nagireddy Ramarao. Several documents have been marked on behalf of both sides.
Considering the evidence led in the case, the learned Judge decreed the suit as stated supra.
The following points arise for consideration in these appeals:
(1) Whether A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960, applies to items 1 and 2 of the suit schedule property and whether 10th defendant shall have to be evicted only under the provisions of the Act?
(2) In view of exemption granted from the operation of the Act, for the buildings the monthly rent of which exceeds Rs.1000/-, can 10th defendant claim protection under the Act?
(3) Whether the dismissal of the suit against 10th defendant is justified?
Point No. 1 :
It is contended by the learned senior Counsel for the appellants that the learned Judge had misdirected himself in holding that the lease was of the building including the machinery, within meaning of Section 2(iii) of the Act. Learned senior Counsel argues that as the recitals of the lease deed mention the lease as that of rice mill and not building along with the machinery, it is manifest that the dominant purpose of the demise was to lease out the rice mill, the sheds have been erected only to house the rice mill for protection, it should be held that the demise was only the rice mill and not the building, which takes away the lease from the provisions of the Act. Learned Counsel for the 10th defendant, however, tried to argue in support of the finding of the Court below and maintaining that the lease was that of the building including the machinery.
To appreciate the rival contentions it becomes necessary, to first notice the recitals in Ex.815 lease deed registered on 5-8-1980. It was executed by 1st defendant, the widow, and defendants 2 to 4, the sons. The annual rent for the rice mill, building and godowns was Rs.8000/- and for machinery Rs.10,000/-, totalling to Rs.18,000/-. The lease deed was described as Sri Durga Vara Prasad Boil and Rice Mill Rental Deed. It is also recited that the period of lease for Sri D.V.P. Boil and Rice Mill was from 7-8-1980 to 6-5-1983 for a period of two years 9 months. It was further recited that if the rice mill was not handedover, as per the conditions of the lease deed, the lessee of the rice mill shall pay an amount of Rs. 100/- per day towards rent, as compensation. The schedule carries the boundaries of the rice mill. The make and number of engine, shuller, huller were also clearly given. The mention of the godowns was only made towards the end of the lease deed. Mention of rice mill was also made in number of other places in the lease deed. From the reading of the lease deed it appears that what was demised under the lease deed was only the rice mill. The godowns were mentioned only as being put up to house the rice mill and its components. The plaint and the written statement makes the matters clear. In the plaint boil and raw rice mill along with the building and premises was shown to have been leased to 10th defendant. The rice mill and the machinery is stated to be the valuable asset of the family having been situated in Tadepalligudem Municipal limits in a very extensive area. We do not, thus find a mention of the building being the subject-matter of the lease in the plaint. Items 1 and 2 of the schedule are stated to be the rice mill and the extensive land, appurtenant to the rice mill. Only the rice mill and its boilers with shullers and hullers, chimnigottam, belts, floor machine, etc., were shown. No godowns let alone any building were mentioned. The written statement filed by 10th defendant also started with an admission that 10th defendant has taken the rice mill on lease in items 1 and 2 of the plaint schedule. In several other places the lease was referred to as the lease of the mill. 10th defendant also avers that even after the expiry of the lease deed, he could continue in the mill by paying Rs.100/- per day. This recital appears to be very significant. It shows clearly that the rice mill business was leased out to D10. The payment of Rs. 100/- per day on the expiry of the lease period which conies to Rs.36,500/-per year can never be construed as the lease of the building including the machinery. A reading of the plaint and the written statement makes it abundantly clear that what was leased out was only the rice mill and not, by any stretch of imagination, the building along with machinery.
Let me now consider, the definition of the expression "Building" contained in Section 2(iii) of the Act, which reads as follows:
"Section 2(iii): ''Building'' means any house or hut or part of a house or hut, let or to be let separately for residential or non-residential purpose and includes:
(a) the gardens, grounds, garages, and outhouses, if any, appurtenant to such house hut or part of such house or hut and let or to be let along with such house or hut or part of such house or hut;
(b) any furniture supplied or any fittings affixed by the landlord for use in such house or hut or part of a house or hut, but does not include a room in a hotel or boarding house;"
As per the definition of the building as seen above, ''building'' means any house or hut let out for residential or non-residential purpose. It, therefore, postulates that the main object of the lease is that of the building and as per Section 2(iii)(b) the definition of building includes furniture supplied or fittings affixed for the use in such house by the lessee. It is, therefore, crucial to consider whether what was leased out was the building along with furniture or the machinery itself. If a building is let out, any furniture or fittings affixed to the building would not change the nature of the lease and it would certainly amount to lease of building. However, if the substantial part of lease is only machinery and a godown or some structures are errected to house the machinery, in order to protect the machinery from rain or heat, it would not amount to lease of the building along with furniture and fittings, within the definition of the ''building''. But it would be the lease of machinery itself. Can it be said that the rice mill is an adjacent or the fittings affixed to the house for the use by the lessee in the house? The recitals in the lease deed and the averments made in the plaint and written statement and other material on record, makes it clear that the substantial part of the lease was only rice mill, huller and shullers along with godowns, which were only put up to house them as incidental structures. Hence, the demise cannot be that of the building but of the machinery.
The question whether a Dal Mill was an accommodation within the meaning of Section 3(a) of M.P. Accommodation Control Act, 1955, and whether the Rent Control Authority has jurisdiction to determine the standard rent, has come up for consideration in Uttamchand Vs. S.M. Lalwani, . It was contended in that case that the lease in question was mainly for the building itself and only incidentally takes in the machinery which has been fixed in the building. The relevant provision in the above Act regarding definition of building takes within its meaning any fittings fixed to such building or part of the building for the more beneficial enjoyment of the building. Gajendmgadkar C.J. answering the question observed as follows:
"(12) What then was the dominant intention of the parties when they entered into the present transaction? We have already set out the material terms of the lease and it seems to us plain that the dominant intention of the appellant in accepting the lease from the respondent was to use the building as a Dal Mill. It is true that the document purports to be a lease in respect of the Dal Mill building; but the said description is not decisive of the matter because even if the intention of the parties was to let out the Mill to the appellant, the building would still have to be described as the Dal Mill building. It is not a case where the subject- matter of the lease is the building and along with the leased building incidentally passes the fixture of the machinery in regard to the Mill; in truth, it is the Mill which is the subject-matter of the lease, and it was because the Mill was intended to be let out that the building had inevitably to be let out along with the Mill.....
This is not a lease under which the appellant entered into possession for the purpose of residing in the building at all; this is a case where the appellant entered into the lease for the purpose of running the Dal Mill which was located in the building. It is obvious that a Mill of this kind will have to be located in some building or another, and so, the mere fact that the lease purports to be in respect of the building will not make it a lease in respect of the building will not make it a lease in respect of an accommodation as defined by Section 3(a)(y)(3). The fixtures described in the schedule to the lease are in no sense intended for the more beneficial enjoyment of the building. The fixtures are the primary object which the lease was intended to cover and the building in which the fixtures are located comes in incidentally."
In Koti Saroj Anamma and another Vs. Jonnalagada Malleswara Rao, in a case that went up from this Court, the saw mill and machinery and land and zinc sheet sheds covering the machinery are held to be not a ''building'' within the meaning of Section 2(iii) of the A.P. Rent Control Act, with which we are presently concerned.
The Court below, relying upon the Full Bench decision of our High Court in Mohammad Jaffer Ali Vs. S. Rajeswara Rao and Others, , held that what was leased out in the present case was lease of the building as defined u/s 2(iii) of the Act.
In the above Full Bench case what was leased out was a cinema theatre. Change in law with regard to definition of ''building'' in Section 2(iii) of the Act has been noticed and discussed by the Bench. The present Act came into force on 21-4-1960. Formerly Andhra area of the State of Andhra Pradesh was governed by the Madras Buildings (Lease and Rent Control) Act, 1949, and the Telangana area by the Hyderabad Houses (Rent, Eviction and Leases) Control Act, 1954. The Madras Act of 1949 came in the place of similar enactment of 1946. In both the earlier Madras Acts the definition of building did not include the words "or any fittings affixed". The present Act introduced these words in the definition after the words "furniture supplied". Noticing the above, the Full Bench considered the effect of the words "any fittings affixed by the landlord for the use in such house". The Bench held that the definition of the building was so extensive that it takes within its fold anything annexed to the house or hut or part of a house or hut. Even apparatus, if it is fixed in the building for the use therein, becomes a fitting within the meaning of the Act Considering the description of the leased property and the plaint and other material on record the Court had no hesitation in holding, in the above case, that the cinema theatre was nothing but a house with furniture supplied with accessories and fittings, coming within the definition of ''building'' under the Act. Sambasivarao, J. speaking for the Court, observed that each case would necessarily depend upon its own circumstances and the subject-matter of the lease. It was also observed :
"If, for instance, machinery is the main and essential part of the demise, certainly it will not be a lease of a building within the meaning of the Act. If, on the other hand, the parties intend by the lease to have a demise of a house or part of a house mainly, and incidentally include its furniture, equipment, fittings and accessories, then clearly it would be a lease of a building within the meaning of the Act. It is obvious that each case will have to be judged individually according to its terms and in the light of the provisions of the Act."
The above Full Bench decision has come up for consideration by the Supreme Court in Koti Sarojanamma''s case (supra). As already seen above, the Supreme Court considering the facts and circumstances of the case and the nature of the lease being that of cinema theatre, observed:
".....lease was essentially a demise of the building with accessories like furniture and machinery, the dominant purpose of the demise was to lease the cinema theatre building and hence, the provisions of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 apply to such a lease. In the present case, the dominant purpose is clearly to lease out the saw mill machinery. A zinc sheet shed which has been erected merely to cover the machinery cannot be a pre-dominant reason for the lease."
The Full Bench also considered the decision of a Division Bench of this Court in Konijeti Venkayya v. Thammana Peda Venkata Subba Rao, AIR 1957 AP 619, where the question was whether the lease of an Oil Mil comprising of site, machinery and building come within the purview of the Madras Buildings Act, 1949. While holding that the provisions of the Act do not govern the rights of the parties under a lease of a running factory including machinery intended to be used for and manufacture of oil, the learned Judges laid down the rule that :
"The question in each case would be what is the dominant part of the demise and what is the purpose for which the building was constructed and let out." It should be noted that Viswanatha Sastry, J, described the lease as one of a running factory comprising costly machinery intended to be used in the manufacture of oil. Such a lease was construed as being outside the scope of the Rent Control Act of 1949"
In the instant case also, as seen supra, the recitals in the lease deed contain a condition that if 10th defendant does not vacate the premises after the lease expires he shall pay an amount of Rs.100/- per day. (Rs.36,500/-per year). A huge amount of Rs.36,500/-cannot be construed as the lease of the building, but lease of the running machinery of rice mill. Hence, there is no difficulty in holding that the lease is one of the business of the mill.
Further in the present case the rice mill was leased out for a total rent of Rs.18,000/- p.a.; Rs.8,000/- for rice mill and Rs. 10,0007- for machinery. As the rent for building and machinery was fixed separately, it was sought to be argued by the learned Counsel for the 10th defendant, though faintly, that the lease was a composite lease of building and machinery. This sort of splitting of rent has come up for consideration in S. Raja Ghetty and Others Vs. Jagannathadas Govindas and Others, . Rajamannar C.J., considering the facts in the case where the lease was for talkie house and dealing with the question of splitting of the annual rent, observed that :
"splitting is purely notional and nominal and intended probably for purposes relating to the municipal assessment and other extraneous considerations..... We think that the attempted division of the lease and separation of rights in regard to two classes of property is in the highest degree artificial, never contemplated by the parties. Here is a lease of a talkie house with everything that is necessary to run cinema shows. To split up such a composite lease as this into separate contracts of lease and hire is to destroy it altogether."
Viswantha Sastry, J, also considered the question of splitting up of composite lease into two separate contracts of lease of the building and hire of the machinery and held in K. Venkayya ''s case (supra) that-
"To split up a composite lease such as Exhibit B-12 into separate contracts of lease of the buildings and hire of the machinery would be to destroy the lease altogether and frustrate its object."
Learned Judge, considering the meaning of Madras Act, 1949, observed -
"The question in each case would be what is the dominent part of the demise and what is the purpose for which the building was constructed and let out.''''
thus, the principle of splitting or the rent as laid down by the Madras High Court in Raja Chetty''s case (supra), was approved by a Division Bench of Andhra High Court in K. Venkayya''s case (supra). Therefore, the composite lease of both building and machinery cannot be split up into two contracts as lease of building and lease of machinery and the argument in this regard has no substance. 20. In view of the above discussion and the law laid down by the Supreme Court, I hold the point in favour of the appellants holding that the demise was only a rice mill but not a building. Hence, dismissal of the suit against 10th defendant by the lower Court on the ground that the lease would come within the definition of Section 2(iii) of the Act, is erroneous and hence 10th defendant would not get any protection under the Act.
Point No. 2 :
The State Government issued the notification dated 29-12-1983 exempting, w.e.f. 26-10-1983, from the provisions of the Act, among others, the buildings whose monthly rent exceeds Rs. 1000/-. It is contended by the learned senior Counsel that the Act would have no application even assuming the demise was that of the building, since the rent of the mill in question was Rs.18,000/- p.a., i.e. Rs.1500/-p.m. Learned Counsel for the 10th defendant, however, submits that since this objection was not raised in the suit and no issue was framed in this regard, it cannot be agitated in the appeal for the first time. It is true that for the first time this question is raised in these appeals. But in view of the admitted facts in the case, with regard to the rate of the rent, which is the only necessary factual information that is necessary to decide the question and the question being of pure question of law, I allowed the appellants to raise this question and advance arguments. Learned Counsel for the 10th defendant submits that the lease being of 1980 and the notification was issued in 1983, the exemption granted in the notification cannot be made applicable to the lease Ex.B15. Learned senior Counsel for the appellants contended that on coming into operation of the said notification from 26-10-1983, the protection given under the provisions of the Act to the tenants, stood withdrawn and thereby whatever rights the tenants had under the provisions of the Act stood extinguish on and from the said date. Hence, the tenants cannot rely thereafter upon the provisions of the Act to non-suit the plaintiff. He relied upon the decision in Parripati Chandrasekharrao and Sons Vs. Alapati Jalaiah, . In the said case also the lease was anterior to the date of the notification and the question that fall for consideration was whether, on coming into operation of the notification, the application made by the tenant for the relief under the Act survives or not. The Court, relying upon the decision in D.C. Bhatia and Others Vs. Union of India (UOI) and Another, , where it was held-
"The effect of repealing a statute is to obliterate it as completely from the records of the Parliament as if it had never been passed; and, it must be considered as a law that never existed, except for the purpose of those actions which were commenced, prosecuted, and concluded whilst it was an existing law."
came to the conclusion that the provisions of a repealed statute cannot be relied upon after it has been repealed and no step could be taken under the Act after the Act was repealed. Learned Counsel for the 10th defendant, however, relied upon the decision in the senior Administrative And Accounts Officer, Atomic Minerals Division Dept., of Atomic Energy v. E.P.B. Manian, 1985 (2) APLJ 30. This decision deals with the exemption under the notification, exempting the operation of the provisions of the Act, to buildings for a period often years from the date of their completion. The decision deals with Clause (a) of the notification, whereas we are now concerned with Clause (b) of the notification. In Kushan Das J. Vithalani v. Bhamidi Kameswara Rao, 1985 (2) APLJ 400, the Court held that the Civil Court has no jurisdiction to entertain a suit for eviction of building which is covered by the Rent Control Act and the premises which was not governed by the Rent Control Act at the time when the suit was instituted and comes within its purview thereafter, the provisions of the Act apply and the Civil Court has no jurisdiction to give a decree for eviction. In the above case 10 years period had expired long before the trial Court had passed the decree. Hence, the Court held that the judgment and decree are without jurisdiction. This Case is also of no assistance to decide the case on hand. In N. Ramachandra Rao v. Vasantha Rao, 1985 (2) APLJ 136, it was held that when there was express exclusion of jurisdiction of Civil Court by operation of Section 10 of the Act the provision cannot be circumvented by a mere comouflage of relief of declaration of title. This decision also has no bearing to the facts of the present case.
In view of the above discussion, the exemption granted in the said notification applies to the building in question and hence the 10th defendant cannot raise any objection relying upon the provisions of the Act, even assuming that the demise was that of the building. The point is answered accordingly.
Point No. 3 :
Before answering this point, it is necessary to deal with the contention that as the plaintiff did not seek any relief for possession, he was not entitled for possession of the rice mill, which is in the possession of the 10th defendant. In support of this contention learned Counsel for the 10th defendant relied upon the decisions in Vinay Krishna Vs. Keshav Chandra and another, and State of M.P. Vs. Mangilal Sharma, . In the former case the suit was for declaration of title wherein it was held that in the absence of relief of possession, the Court was not entitled to grant such a relief. In the latter case, which pertains to the relief of reinstatement of an employee, it was held that the executing Court could not go beyond the decree and grant the relief of reinstatement. These questions do not arise in the present case. In the present case, as is evident from the plaint, the suit was for partition of the plaint schedule property and for mesne profits from the date of the suit till the date the plaintiff is put in separate possession. Though no specific relief for possession was sought for, it could be gathered from the above relief sought for to grant mcsne profits, that the plaintiff intended that his share should be delivered to his possession. The decisions cited by the learned Counsel for the 10th defendant relate to only to the cases for declaration of title and no relief of possession was sought for. However, in the suit for partition the plaintiff is entitled to be put into possession of his share if he is not in possession of the property which has fallen to his share. The question whether which property falls to his share would arise only after a preliminary decree was passed. Hence, in a suit for partition, a preliminary decree should be passed under Order 20 Rule 18 of Code of Civil Procedure. Rule 18(2) CPC provides that in a suit for partition of property or separate possession of the share therein, the Court, may, if the partition or separation cannot be conveniently made without further enquiry, pass a preliminary decree declaring the rights of the several parties interested in the property giving such further directions as may be required. The preliminary decree merely determines the rights of the parties in a partition suit, the properties partitioned and the shares allotted. It is the final decree that ultimately divides the properties and awards separate possession. Therefore, it is necessary for the Court in a suit for partition to pass a preliminary decree, leaving the parties to agitate their rights for allotment of their shares and for possession and for mesne profits. Admittedly the lease in favour of the 10th defendant expired in 1983 and thereafter the 10th defendant, if he is in possession of the mill, becomes a tenant holding over. It is for the parties to obtain possession of the mill from the 10th defendant by due recourse of proceedings of law. It is not the province of the Court in a suit for partition to consider those aspects except to declare the shares of the parties and pass preliminary decree. In the circumstances, the contention with regard to claim of possession does not arise at present as against 10th defendant while passing the preliminary decree.
Learned Counsel advanced a contention that the suit was filed only for the purpose of evicting 10th defendant from the rice mill but not for the purpose of partition at all as all the members of the family were in possession of the property and they were living with amity and there was no controversy of shares among themselves and as such the suit for partition did not arise. Hence, the suit is not bona fide. This question does not arise at this juncture because the lease expired in 1983 and the eviction of the 10th defendant prior to the expiry of lease need not be discussed at this stage, though this question might have been relevant if the 10th defendant was sought to be evicted by passing a decree much prior to the expiry of the lease.
In view of the findings given on points 1 and 2 the dismissal of the suit against the 10th defendant is erroneous.
In the result, the appellants succeed and the appeals are allowed with costs. Dismissal of the suit against the 10th defendant is set aside and the suit is decreed against the 10th defendant also with costs. The Court below is directed to pass preliminary decree accordingly.