L.D. SINDHI Vs. G.P.SEN

JUDGEMENT

(1.) This second appeal has been filed against the judgment and decree dtd. 18/7/1988 passed by Civil Judge, Jhansi in Civil Appeal No. 201 of 1985 (Ganesh Prasad and others vs. Ramesh Singh and others). Learned appellate court has allowed the appeal filed against the judgment and decree dtd. 30/9/1985 in Original Suit No. 70 of 1976 (Ganesh Prasad and others Vs. Ramesh Singh and others) set-aside the judgment and decree of the trial court by which the original suit was dismissed and has decreed the suit of plaintiff for partition for a share of 3/8 in the disputed shop.

(2.) In brief the facts are as follows:-

(3.) Defendants in their written statements denied that plaintiffs are tenant of the disputed shop. They further pleaded that tenancy rights can not be partitioned. It was further alleged in the written statement that plaintiff no. 1 is an employee of railway while plaintiff no. 2 is a teacher. Plaintiff no. 3 being a woman of the plaintiff are not doing vocation of hair cutting. If the disputed shop is partitioned and any construction is erected then the landlord will evict him. Lastly it was also pleaded that tenancy rights can be acquired by succession but it cannot be partitioned. Defendant no. 5 filed separate written statement in which he denied the plaint case and further pleaded that plaintiffs and other defendants have no concern with the disputed shop. They are not entitled to get possession of the disputed shop. No permanent partition can be made. The owner of the disputed shop is Sri 1008 Raghunathji temple and answering defendants is its tenant on a monthly rent of Rs.75.00 and in possession of the disputed shop. After getting the disputed shop on rent the answering defendant has invested a lot of money in it and got it reconstructed. He is regularly paying the rent to the landlord and running hotel business in it. He also pays the electricity and water tax dues. Plaintiff has not arrayed Sri Raghunathji temple who is necessary party while plaintiff nos. 1 to 4 have been wrongly impleaded. Neither plaintiffs nor defendant nos. 1 to 4 are in possession of the disputed shop. They are also not tenant of the disputed shop, hence, the plaintiffs have no right to get the disputed shop partitioned.