MEHAR CHAND Vs. KISHAN DASS

JUDGEMENT

(1.) By this judgment and order we propose to dispose of the present appeal, which was filed by the appellant / defendant No.2 being aggrieved by the judgment and decree dated 28th November, 1985 passed by the learned Single Judge whereby a preliminary decree was passed declaring that the properties bearing number 2858 and 2877, Sirkiwalan, Delhi belong to the plaintiff and the defendants No.1 to 4 jointly and that each one of them would get 1/5th share in each of the aforesaid two properties. So far the tenancy rights in shop No.5062, Bazar Sirkiwalan, Hauz Qazi, Gandhi Nagar, Delhi is concerned, it was held by the learned Single Judge that the defendant No.1 is the sole tenant of the shop in question. The present appeal is filed by the appellant, who was defendant No.2, only in respect of the aforesaid findings and conclusions reached by the learned Single Judge with respect to tenancy right and the order passed declaring the respondent No.1/defendant No.1 as the sole tenant in respect of the aforesaid shop in question. Therefore, our decision in the present appeal would be restricted to the aforesaid issue only.

(2.) A suit for a decree for partition was filed by the plaintiff contending, inter alia, that the properties number 2858 and 2877, Sirkiwalan, Delhi are joint family properties and, therefore, they are required to be partitioned by metes and bounds amongst the co-sharers. In the aforesaid suit, the present appellant as defendant No.2 filed his written statement wherein he also contended that shop No.5062, Bazar Sirkiwalan, Hauz Qazi, Gandhi Nagar, Delhi (described as suit property in the present appeal) was taken on rent by Kundan Lal, grand father of the plaintiff and defendants No.1 to 4 and consequently the tenancy rights therein also get devolved on the plaintiff and the defendants No.1 to 4 and that the said property should also be partitioned accordingly by metes and bounds amongst the parties. After filing of the said written statement, the plaint was amended to include shop No.5062, Bazar Sirkiwalan, Delhi also as a suit property.

(3.) On the basis of the pleadings of the parties, altogether six issues were framed on 10th February, 1977. Subsequently, three additional issues were framed on 17th March, 1983. All the aforesaid issues have been set out in the impugned order and decree and, therefore, we do not intend to reiterate the same in the present judgment for the sake of brevity.