1. A. S. CHOWDHURY, J.---These two revisional applications arise out of Title Execution Case No. 1 of 1955, pending in the 5th Court of Subordinate Judge, Dacca, for execution of a decree obtained in Title Suit No. 97 of 1950 of that Court and as such they were heard together and are being disposed of by this judgment.
2. It may be mentioned here that the said suit was origi--nally registered and numbered as Title Suit No. 47 of 19-16 and hury, it was subsequently transferred to the 5th Court of the Sub--ordinate Judge, Dacca and numbered as Title Suit No. 97 of 1950 of that Court.
3. It is stated in the petition that Opposite-Party No. 1 Sudhir Chandra Das obtained a preliminary decree and thereafter a final decree for partition in the said title suit and the Court allotted the Sahama which are subject-matter of this petition to the said opposite-party Sudhir Chandra Das.
4. The petitioners who were inducted as monthly tenants during the pendency of the suit filed an application that they were not liable to be evicted as they were bona fide tenants and not trespassers and that the Opposite---Party No. 1 can take only symbolical possession under the pro--visions of rule 36 of Order XXl of the Code of Civil Procedure. Learned Subordinate Judge reached the conclusion that the petitioners having been inducted into the premises during the pendency of the suit, were not entitled to claim that the platnttff--decree-holders' right was confined to symbolical possession only. Aggrieved by the said order the petitioners moved this Court and obtained rules.
5. Mr. Ramani Kanta Bhattacharjee, learned Advocate appear--ing in C. R. 1363 of 1967, for the petitioners submits that learned Subordinate Judge acted illegally in not holding that the opposite- --party was to get merely symbolical possession. His further contention is that the learned Judge ought to have held that the doctrine of lis pendens would not apply to their case by reason of section 17 of East Bengal premises Rent Control Act.
6. Mr. Sultan Hussain Khan, learned Advocate for the petitioner, Obaidul Kabir submits that the Opposite-Party No. 1 did not acquire any property by transfer, for, he was allotted a saham in a partition suit in the light of his existing right and as such section 52 of the Transfer of Property Act would not apply.
7. Mr. Nurul Islam, learned Advocate appearing for defendant---opposite-party, JOBEDA KHATUN submits that the property in question cannot be held to have been transferred or otherwise dealt with during the pendency of a suit in which any right to immovable property is directly and specifically in question and his contention is that partition suit is not con--templated in the said section.
8. Mr. Asrarul Hussain, learned Advocate-General who appears for the Opposite-Party No. 1 Sudhir Chandra Das, submits that the petitioners are not entitled to claim that they are tenants, for all of them were inducted into the suit premises during the pendency of the said partition suit and as such they were not tenants as contemplated in the Rent Control Act. He points out that the said Act has since been replaced by the East Pakistan Premises Rent Control Ordinance but section 17 of the act also finds place in the Ordinance as section 18. He submits that section 17 of the Act is not for the protection of the unauthorised persons.
9. The material part of section 17 of the Act on which reliance was placed by Mr. Bhattacharjee reads as follows:- "(I) Notwithstanding anything contained in the Transfer of Property Act, 1882, or the Contract Act, 1872, no order or decree for the recovery of possession of any premises shall be made as long as the tenant pays rent to the full extent allowable by this Ordinance and performs the conditions of the tenancy."
10. It would therefore prima facie appear that the Transfer of Property Act will not be applicable so long as a tenant pays rent to the full extent allowable by the Act or the Ordinance, but the person in occupation must be a tenant. But, a tenancy created during the pendency of a suit relating to a right to that property is not a tenancy in the eye of law. That being so, the aforesaid section cannot exclude the operation of section 52 of the Transfer of Property Act.
11. Section 52 of the Transfer of Property Act which reads as follows:- "During the pendency in any Court having authority in Pakistan or established beyond the limits of Pakistan by Central Government of Pakistan any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred nor otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose."
12. The suit was instituted in 1948 for partition of the suit property. Alleged tenancy was created in the case of all the petitioners after 1948. It is true the suit in question was a partition suit, but in a partition suit also right to immovable property is directly and specifically in question. In a partition suit a decree is not given according to the shares claimed but according to shares determined in such a suit. It is therefore clearly a suit in which the right of a party in a property held jointly with others is determined and a new and exclusive right is created in favour of a party. Partition suit is therefore a suitcontemplated in section 52. When such a suit is pending transfer of the property is prohibited. A creation of Tenancy would indeed be a transfer of the right of occupation. We are, therefore, of opinion that section 52 of the Transfer of the Property Act, applies, to this class of suits.
13. In the case of Jogendra Chandra Ghosh v. Fulkumari Dassi (I L R 27 Cal. 77), a Division Bench of the Calcutta High Court consisting of Maclean, C. J. And Benerjee, J. Held that in a partition suit a party has an inchoate right which ripens into an absolute right on a partition having taken place. It was therefore held that doctrine of lis pendens would apply to a partition suit.
14. PLD 1969 Dacca 120) it was held the doctrine of lis pendens as visualised in section 52 of the Transfer of Property Act would apply also to a partition suit. We are in respectful agreement with the views expressed above.
15. PLD 1960 Dacca 359) Chowdhry, J. Considered the case of tenant inducted on a parcel of land of a joint estate by a co-sharer in possession. In that case it was considered as to whether a co-sharer who is dispossessed can get possession from the person so inducted. Chowdhry, J, observed: ". . .If the land is allotted to the share of a non consenting co-sharer, then he will get it free from encumbrances created by the other co-sharers and the right of the tenant will shift to the land allotted to the share of the co-sharer who inducted the tenant on a parcel of land of the joint estate, and this transfer of the tenancy of the land of the joint estate allotted to the share of the grantor will be with all the incidence and consequence "A similar view was expressed in a Full Bench decision of the Calcutta High Court reported in AIR 1926 Cal. 714.
16. It was held by the High Court of West Pakistan in the case of Pir Abdullah Shah and others v.
17. Humayon and others (PLD 1957 Lah. 1054) that an interest created during pendency of a suit cannot affect any decree passed in a suit. Kaikaus, J. As his Lordship then was, observed:- "The learned Judge considered the status of the contesting res--pondents only with reference to Kharif 1959 and held that they were at that time tenants of the judgment-debtor but he failed to take notice of the fact that in accordance with section 52 of the Transfer of Property Act the principle underlying which is applicable to the present case, no interest which is created during the pendency of the suit can affect any decree passed in the suit. It was necessary for the learned Civil Judge to consider whether the tenancy of the contesting respondents had not come into existence after the institution of the suit for possession. If it had come into existence after the institution of the suit (and from the entries in the revenue record that is the conclusion which one would prima facie reach), then the position of the contesting respondents could he only that of parties to a decree who are bound by the decree and the decree could be executed by their ejectment. If it were otherwise it would be possible to defeat a suit for possession of immovable property altogether by continu--ing to create tenancies during the pendency of the suits that may be filed to recover the property. A files a suit against B and during pendency of the suit B creates a tenancy in favour of C.
18. When A files a suit for possession against C he creates a tenancy in favour of D and so on. A, may never get possession of the property in dispute."
19. The danger involved in accepting the contention of Mr. Bhattacharjee has been clearly indicated by his Lordship Kaikaus, J.
20. For the reasons stated above we are of opinion that the impugned order calls for no interference and both the rules are accordingly discharged with costs.
21. Mr. Bhattacharjee learned Advocate for the petitioners submits that the petitioners are in the premises for about fifteen years and they are carrying on business in the suit premises and as such he prays for reasonable time to vacate the premises. In the facts and circumstances of the case, it seems to us that the prayer is reasonable. The petitioners are accordingly allowed two months time with effect from to day to vacate that part of the suit premises which has been allotted to the plaintiff-Opposite---Party No. 1.
22. A. H. KHAN, J.----I agree. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.