This is a plaintiffs second appeal against a judgment of the learned Senior Subordinate Judge, Jammu, dated 13th Poh. 2007, whereby the judgment and decree of the trial Court (Sub-Registrar Munsiff, Second Class, Jammu) dismissing the plaintiffs suit for ejectment and rent was confirmed.

(2) It appears that the defendant-respondent had by virtue of a rent deed dated 8-9-2001 taken on lease a small house from the plaintiff, and the rent fixed per month was Rs. 4. This house appears to have been the part of some joint property which was owned by three or four persons including the plaintiff On 28th Phagon 2002 these persons who are related to each other as brothers or cousins effected a partition of their joint property and this house which was rented out to the defendant fell to the lot of Kaunsal Singh, Balwant Singh and Wasawa Singh. Thereafter the defendant executed another lease deed in the name of Kaunsal Singh to whose lot along with others the said house had fallen. The plaintiff thereafter kept quiet for a period of more than three years and meanwhile, as alleged by the defendant, the defendant went on paying rent to Kaunsal Singh. After a period of more than three years the plaintiff issued a notice on 21st Jeth 2006 to the defendant demanding the arrears of rent from him. This notice was given to the defendant on the basis of the original lease deed which was executed by him in favour of the plaintiff. Both the Courts have come to the conclusion that the tenancy which once existed between the plaintiff and the defendant terminated on the day when the partition was effected between the plaintiff and his other co-sharers in the property.

(3) The argument of the appellants learned counsel is that whatever may have taken place between the plaintiff and his other co-sharers would not give a right to the defendant to deny that the title of the landlord. According to S.116 of the Evidence Act a tenant cannot deny the title of a landlord during the continuance of the lease. But the question in this case is does the tenancy continue in the present case? The defendant-respondents learned counsel has referred to Section 109 of the Transfer of Property Act which lays down that:

"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.. .. ....."

The other question is as to whether the partition is a transfer of property within the meaning of Section 5 and Section 109 of the T. P. Act. There is ample authority for the proposition that a partition is a transfer of property as it has been held to be a mixture of surrender and a conveyance of rights in a property Reference may in this connection be made to a number of rulings which have been noted by Chitaley on page 252 of his commentary on the Transfer of Property Act. From this it becomes abundantly clear that after the transfer it is the transferee who possesses all the rights of the lessor and the rights of the original lessor automatically cease to exist. Putting it in more plain words it comes to this that on the date of transfer (in this case partition) the relationship of landlord and tenant ceased to exist between the plaintiff and the defendant. Therefore the defendant is not debarred from pleading that he is not bound by any relationship of a landlord and tenant so far as he and the plaintiff are concerned.

(4) The plaintiffs learned counsel has further argued that the defendant now has afforded to only one of the three persons to whom the

house in question was allotted on partition, From this he wants to argue that the subsequent lease deed is not a valid lease and that the original lease deed must be therefore treated as operative. This may or may not be so, but it does not make any difference. It is a matter subsisting between the owners of the property. If the owners of the property think that Kaunsal Singh has misbehaved, they can take him to task, but the plaintiff does not come into the picture at all. So far as the plaintiff is concerned, we have got only to see as to whether he has a present right of ejecting the defendant or not. We have seen by reference to Section 109 of the T. P. Act that any rights of realizing rent or ejecting the defendant which were possessed by the plaintiff once have ceased to exist so far as he is concerned, and those rights are now vested in his co-sharers to whom the

exclusive ownership has been transferred by dint of partition referred to above.

(5) There is one more point in the case which shows that the plaintiff has taken the same position which has been visualized above. After the partition that was brought about between him and his other co-sharers, he maintained a studied silence. Never did he make any demand for rent from the defendant, nor did he raise even his little finger for bringing about his ejectment. By such conduct of the plaintiff it becomes further clear that he had lost all interest in the property. It is now too late in the day for him to come in the Court and demand rent and to seek ejectment of the defendant.

(6) I do not, therefore, find any force in this second appeal which is dismissed with costs.