Hindu Law – Suit for partition – Concept of dual ownership – Land and building or structure standing thereon

The plaintiff and his two brothers namely, the defendant nos. 1 and 2 had equal share in the land. The dispute was about the entitlement of the plaintiff to any share in the house, which was constructed on the land in question. The plaintiff did not dispute that he had not contributed anything towards the construction of the house and the defendant nos. 1 and 2 were permitted to construct the house with their own funds. The house was constructed in the year 1977 in which the defendant nos. 1 and 2 were residing.

The learned counsel for the appellants submitted that the concept of dual ownership is recognised in India and it has been accepted by the Courts in India despite a contrary concept prevailing under the British law.

It was submitted that though, the share of the plaintiff in the land is not disputed, in view of the aforesaid position of law accepted by the Courts in India, the plaintiff is not entitled to get any share in the structure of the house constructed thereon. As against this, the learned counsel appearing for the respondent (Original Plaintiff) submits that the Hindu law does not recognise such a concept of dual ownership.

The Hon’ble Court observed that in Ramkrishna Girishchandra Dode & Others vs. Anand Govind Kelkar & Others delivered by this Court reported in (1999) 1 Bombay Case Reporter 63, it has been held as under:

“The concept of dual ownership one of the land and the other of the structure on the land has been recognised by several decisions of this Court. The consistent view taken by this Court is that where the landlord get a decree for eviction of a plot of land against a tenant the licensee or a sub-tenant inducted by the tenant on the structure put by him has no right against the landlord. If therefore the landlord is entitled to get vacant possession of the land, he is entitled to evict the occupant in the said structure erected by the tenant, in as much as the occupant of the structure has no legal right against the landlord in so far as the land is concerned. The land must be put in possession of the landlord, free from any encumbrance whatsoever.”

In view of the aforesaid position of law, it was apparent that the concept of the dual ownership, one of the land and the other in the building or structure standing thereon had been recognised and accepted by the Courts in India. The applicability of the principle would not be different even if it is a case between the real brothers and the law as has been laid down by the Courts in India would apply to the dispute between the real brothers also. Merely because, the plaintiff had share in the land beneath the building, it does not automatically follow that he would have share in the building constructed also. The plaintiff did not dispute that he has not contributed anything for construction of the house on the land in which he has a share. It is also not in dispute that he had permitted his brothers to construct building/house with their own funds. No objection was raised for such construction. Therefore, it had to be held that though the plaintiff has share in the land, he did not have any share in the structure or building erected thereon.

The plaintiff is not entitled to a partition and possession of the suit house.