J.P. Jain, J.
1. This appeal arises out of a suit instituted by Ghisa Ram, plaintiff, in the court of Munsiff City Ajmer against Raja Ram Kumar Bhargava and Tej Kumur Bhargava on 13-11-62. There is a property with huge compound situate at Srinagar Road, Ajmer. That belonged to one Sooraj Prakash Bhargava. The entire property was leased out to two defendants Raja Ram Kumar Bhargava and Tej Kumar Bhargava by him. On the west of the property Nawal Kishore Press is located. Towards the East is the residence of the manager of the press. In between these two properties the plaintiff Ghisa Ram purchased two plots of land 'C' and 'D' measuring 803,61 Sq Yds. from the owner of this property by a sale-deed dated 29-7-69. According to the plaintiff he became the owner of the two plots from that date and the defendants namely Raja Ram Kumar Bhargava and Tej Kumr Bhargava became his tenants. No rent for this portion of the demised premises was apportioned by the parties to the sale and the tenants. The plaintiff, however claimed Rs. 30/- per month by way of rest from 29.7.69 and thus prayed for a decree for Rs. 810/ for the peried from 29.7.59 to 31.10.61. He also prayed for eviction of the suit land as he required it for his personal necessity. He served the notice to the defendants terminating their tenancy from 31.10.61.
2. This suit was resisted by the two defendant-tenants. They admitted that they are the tenants of Sooraj Prakash Bhargava on the entire property. They also admitted the sale but it was pleaded by them that the sale by itself did not have the effect of bifurcating the tenancy as it was one and indivisible They also contested ths plaintiff's right to claim Rs. 30/- per month by way of rent for the land purchased by him. An objection was also raised that the suit was bad for non joinder of Sooraj Prakash Bhargava.
3. The learned Munsif by his order dated 12.7.62 framed six issue Issue No. 5 related if the suit was bad for non-joinder ot Sooraj Prakash. This issue was decided on 22-12-62 and it was held that Sooraj Prakash was a necessary party. As result, the plaintiff amended the suit and made Sooraj Prakash as defendant No. 3. Sooraj Prakash did not out in appearance. Learned Muniff by his order dated 20-4-63 decreed the plaintiff's suit and granted him a decree. HE held him entitled to mesne profits at the rate of Rs. 15/-per month. On appeal the Civil Judge, Ajmer set aside the decree, framed a fresh issue and sent the case back for reterial vide his order dated 14.4.64. The newly framed issue was:
What should be the apportionment of the rent for the suit land out or total amount of rent payable by the defendant-tenants to the original Landlord Sooraj Prakash?
4. This order was challenged in revision but before the revision could be decided the case was retried and decided by the trial Judge on 30-10-64. This court, in the circumstances, declined to interfere in revision. By this decree of Munsiff the suit for ejectment was dismissed and a decree for arrears of reant was awarded against the defendants at the rate of Rs. 10/- per month. This decree was again challenged in appeal but. without any success. It is dated 16th February, 1966. It is this decree that has been challenged in second appeal.
5. During the pendency of second appeal Ghisa Ram died and his legal representatives have been brought on record Raja Ram Kumar Bhargava also died and is represented by his legal representatives in this appeal.
6. The only point that arises in this appeal for my determination is whether the sale of the suit land had the effect of bifurcating the tenancy Mr. R.C. Jain learned Counsel appearing for the appellants referred to Section 37 and 109 of the Transfer of Property Act I have read these provisions with care. Section 37 refers to apportionment of benefit of obligation on severances. Before the Transfer of Property Act when a tenure was severed by the sale of shares in the reversion, the tenant was still obliged to pay the rent to all the sharers jointly, unless an apportionment had been agreed to by all the partus or had been ordered in a suit to which all concerned were parties. If such an agreement had been arrived at, it was binding on the tenant. Under the present section, notice to the tenant is sufficient to convert the single obligation to pay rent to all into a several obligation to pay rent to each co sharer. On receipt of the notice the tenant is under an obligation to pay each sharer his proportionate part of the rent; but if a suit is necessary to enforce this obligation, it is necessary to join all the sharers as parties. If no apportionment is made, the obligation remains single, and the lessor will not be allowed to split the tenancy by recovering the rent of a part only. In the present case a notice under Section 109 of the sale is said to have been given but it has not been placed on record. There is no evidence nor it is the case of the plaintiff that rent of the suit land which he has purchased from the lessor has been apportioned between him and the seller and the tenant has been informed about it. In this view of the matter it is not open to the plaintiff to urge that there is bifurcation of tenancy by the mere fact that a part of demised premises has been purchased by him. No. doubt he is entitled to a part of the rent under the provisions of Section 37 and if it is not agreed to between the parties the court will have to determine the same. This is abundantly clear by the third paragraph of Section 109, Transfer of Property Act. These two provisions the before do not empower the plaintiff to break the integrity of the tenancy.
7. Learned Counsel also referred to Pyarelalsa v. Garanchandsa and Ors. : AIR1965MP1 and Subhash Chandra Sardarmal Lalwani v. Radbavallabh Saligram and Ors. : AIR1972MP206 in which the earlier case has been referred to. In Pyarelalsa's case the property belonged to joint Hindu family. The shares were undefined. A partition was brought about the family by metes and bounds. The property was in possession of a tenant. The notice to quit by co-parceners to whom the the property was allotted was held to be valid to terminate the tenancy of the tenant. This case was relied upon by learned Judge dealing with the case decided in 1972, Subhash Chandra Sardarmal Lalwani v. Radhavallabh Saligram : AIR1972MP206 . It was obseived in para 7:
In my opinion, when joint owners give any property on lease the terms of the lease cannot be varied so long as the property is held by them jointly; but the grant of lease must always be presumed to be subject to the condition that the joint owners may separate their interest by partition and in that case the partition would have the effect of severing the tenancy also pro tanto.
8. The learned Judge had in his mind the case of a joint family property and a partition thereafter having the effect of severing the tenancy. With great respect to the learned Judge this principle cannot be followed in every case as he further observed:
Similarly, even if one owner leases out the property, the lease must always be held to be subject to the condition that on transfer of the part of the property the lease shall stand severed pro tanto.
9. That apart, the following observations in Badri Narain Jha and Ors. v. Rameshwar Dayal Singh and Ors. : 2SCR153 , may be pertinently referred to in this connection:
Similarly the allegation of partition inter se among the several owners of the lakhraj holding subject so mokarrari interest cannot in any way effect the integrity of the learse in the absence of an allegation of a fresh contract between the split up owners of the holding and the different owners in the mokarrari interest.
10. It does not appear from the reports of the Madhya Pradesh cases that the afore said observations of the Supreme Court were brought to their Lordships notice. The fundamental principle that the tenant be ejected at the instance of only one of the landlords cannot be lost sight of. After the sale of the suit land to the plaintiff he became entitled to the benefit attached to this sale. As the entire property was on rent with the defendants, he was clearly entitled to a share if the rent. It could either be agreed to between the parcies and if such an agreement had not reached, it could be enforced through the Court. But till then the tenancy which was created by Sooraj Prakash cannot be deemed to have been bifurcated by the mere fact that a part of the demised premises was purchased by the plaintiff On behalf of the respondents reliance has been placed on Sri Ram Charan v. The State of Uttar Pradesh 1969 SCR 855. In that case the entire property was on rent with a tenant. During the subsistence of the tenancy ownership of the property was transferred to two person. But this alone, it was held, did not amount to the division of the tenancy.
11. On the facts of the case I am clearly of the opinion that Ghisa Ram anone cannot determine the tenancy with respect to the suit land, a part of the demised premises. His suit for ejectment has been rightly dismissed. The other part of the decree has not been challenged.
12. In the result I find no substance in the appeal and dismiss the same. In the circumstances of the case there will be no order as to costs of this appeal.