KARTAR NATH Vs. INDER NATH

JUDGEMENT

(1.) This appeal has been brought against order dated November 21, 1979 of Shri M.K.Chawla, Additional District Judge (as His <PG>185</PG> Lordship then was), vide which he held that shop No. 573B is not in possession of the appellants as tenant and the appellant was liable to give physical actual possession uF the said shop to respondent No. 1-Inder Nath to whose share the said shop had fallen in the partition decree.

(2.) . Briefly the facts giving rise to this appeal are that two and a half storeyed property bearing municipal Nos. 573, 574, 575 and 576, G.B. Road, Delhi, had been purchased by Inder Nath, Pishori Lal and the appellant Kartar Nath. The ground floor of the property comprised of three shops bearing municipal Nos. 573,574 and 575 while the first and second floor bearing the common municipal No 576 Before the purchase of this property by the said three persons, shop No. 573 was in the tenancy of M/s. Dhingra Brothers, a partnership firm, at a rental of Rs. 30.00 per mensem. Inder Nath, Pishori Lal and the appellant Kartar Nath and Girdhari Lal were the partners of the said firm. Girdhari Lal was father of Inder Nath. Admittedly shop No. 574 is in tenancy of M/s. Umrao Singh Hardwari Lal at the rate of Rs. 30.00 per mensem and shop No. 575 is in the tenancy of M/s. Mohinder Singh Kartar Singh at the rate of Rs. 40.00 per mensem. The first floor and the second floor bearing municipal No. 576 were in the tenancy of M/s. Baij Nath Hardwari Lal earlier. It is common case of the parties that after the purchase of the property by the three owners, shop No. 573 was divided and a partition wall was put therein, and the partnership firm of M/s. Dhingra Brothers was also dissolved and half portion of the said shop, which was given municipal No. 573A, came in the tenancy of the partnership firm. M/s. Dhingra Brothers now comprised of only two partners, namely, Inder Nath and his father Girdhari Lal. whereas the other portion of the said shop was given municipal No. 573B and said to have come in the tenancy of Kartar Nath-appellant and Pishori Lal, two co-owners and a business under the name and style of M/s. 0m Traders was started in the said shop. It is the case of the appellant that the rent was being realised by Inder Nath in respect of the said portion of the shop and the rent from other tenants also used to be realised and the rent so collected used to be divided amongst the co-owners.

(3.) . Kartar Nath-appellant had brought a suit seeking partition of the said property by metes and bounds and he specifically pleaded in the said suit that shop bearing No. 573B is in his occupation as tenant at the rate of Rs. 15.00 per month. It is pertinent to mention that alongwith the plaint the plaintiff-appellant had filed an application for grant of injunction and appointment of a Receiver in which he reiterated these facts. It has come out in the pleadings that the tenant of the first floor and the second floor, namely, M/s.Baij Nath Hardwari Lal had surrendered possession of the said portion to Inder Nath and Inder Nath was holding vacant possession of the said portion of the property on behalf of all the owners. So, it was prayed that the Receiver be appointed to take physical possession of the first floor and the second floor and also he should realise the rent from the tenants of other portions and injunction was prayed for restraining the respondents from parting with possession of first floor and the second floor to anyone else. Inder Nath filed the reply to this application on April 3, 1968, in which he specifically admitted in para 3 that shop No. 573B is in the tenancy of M/s. Kartar Nath Pishori Lal. It is necessary to reproduce the pleas taken by Inder Nath in that reply which clinches the issue arising in this appeal :