V.R. Newaskar, J.
1. This suit for recovery of mesne profits was brought by plaintiff Darbarilal against defendant Kajodimal on the allegations that the plaintiff had purchased a portion of the house in occupation of the defendant from its previous owner Madanlal Patwari. The other portion in occupation of the defendant was sold to one Gulabchand. The plaintiff considered the occupation of the defendant as amounting to trespass and has brought the suit for recovery of mesne profits and damages for use and occupation of the premises in question by the defendant.
2. The defendant denied the plaintiffs allegations that he was in occupation of the premises in question as a trespasser. He also denied his liability for payment of the mesne profits. He assailed the jurisdiction of the Small Cause Court, before whom the suit was filed, to try the same.
3. It appears clear from the pleadings that the entire house at one time belonged to one Madanlal and the defendant was his tenant in respect of a portion of that house. Madanlal sold the house in two different portions, one portion being sold to the plaintiff and the other portion in the occupation of the defendant to one Gulabchand. The result of such sale in different portions was that the defendant's premises now are owned in parts by two different owners. The exact proportion at which he should now pay rent to the respective owners has so far not been determined or agreed to by mutual agreement between the parties. Section 109 of the Transfer of Property Act which deals with such a situation provides as follows:
'If the lessor transfers the property leased, or any part thereof, or. any part of his interest therein, (the transferee, in the absence of a contract to the contrary, shall possess all the rights, and, if the lessee so elects, be subject to all the liabilities of the lessor as to the property or part transferred so long as he is the owner of it; but the lessor shall not, by reason only of such transfer, cease to be subject to any of the liabilities imposed upon him by the lease, unless the lessee elects to treat the transferee as the person liable to him:
Provided that the transferee is not entitled to arrears of rent due before the transfer, and that, it the lessee, not having reason to believe that such transfer has been made, pays rent to the lessor, the lessee shall not be liable to pay such rent over again to the transferee. The lessor, the transferee and the lessee may determine what proportion of the premium or rent reserved by the lease is payable in respect of the part so transferred, and, in case they disagree, such determination may be made by any Court having jurisdiction to entertain a suit for the possession of the property leased'.
4. It is clear from this provision that where there is a single obligation to pay the rent to a particular landlord that obligation gets divided into several obligations where the initial landlord effects transier of the leased premises in parts to different transferees. It is open for the initial landlord, the assignees and the lessee to amicably settle the proportion at which the rent is to be paid to different transferees in pursuance of this divided obligations. But where here is no such amicable settlement it can be done by means of a suit. Such a suit has to be filed in the Court in which a suit for possession of the property would lie. It also appears that the learned Small Cause Judge considered the occupation of the defendant as wrongful and on that basis he proceeded to hold that the defendant is bound to pay mesne profits and damages for use and occupation. It cannot be said, under the circumstances of the case, that the defendant's occupation of the premises was any way wrongtul.
He was lawfully in possession of the premises and by the subsequent act of the initial landlord of selling the leased premises to different purchasers the possession of the defendant does not become ip-so facto wrongful. He continues to be in possession in his own right as a tenant. He would be liable for payment of rent the proportion of which would be determinable in a suit designed tor the purpose in the absence of any amicable settlement amongst all the parties concerned. But a suit for the recovery of damages or mesne profits on the ground that the defendant is in wrongful possession of the property is improper. The present suit in the form in which it is brought is incompetent. A suit for determination of the proportion of the rent which the defendant is liable to pay to the plaintiff will have to be brought in appropriate Court as indicated above.
5. The decree passed by the lower Court under the circumstances is unsustainable.
6. The petition is therefore allowed and theplaintiffs suit as framed is held not maintainableand it is dismissed with costs throughout.