SHER SINGH Vs. MOHD ISMAIL

JUDGEMENT

(1.) This is a defendant's second appeal in a suit for ejectment and damages in respect of a half portion of a shop.

(2.) The plaintiff claimed to have taken the shop on a monthly rent of Rs. 14/- per month from one Begum Khurshed Khwaja and to have started a business therein in partnership with one Tori Mal under the name and style of Mohd. Ismail Tori Mal. The rent was paid by the Firm and it appears that the Firm came to be treated as a tenant of the shop. The plaintiff's share in that partnership was 3/4th and that of Tori Mal 1/4th. However, in 1949 the business of that partnership appears to have come to a stop and Tori Mal is said to have taken possession of 3/2 of the shop on the eastern side and to have started separate business in partnership with Baboo Lal and the first defendant Sher Singh. A Suit No. 604 of 1951 was filed by the plaintiff against Tori Mal. It was held in that suit that the plaintiff's share in the partnership assets was 3/4th and that of Tori Mal 1/4th and the tenancy of the shop was also ordered to be divided between the two in the same proportion. During the pendency of the second appeal in that suit in this Court, Tori Mal died and his brother Het Ram, in partnership with Sher Singh, the present defendant No. 1, carried on the business. Het Ram also died thereafter and the second defendant, Shyam Babu came in his place, but later on it appears that even Shyam Babu ceased to have any connection with the business and Sher Singh, the first defendant, alone came to carry on business in the 1/4th portion of the shop which was allotted to Tori Mal in that suit.

(3.) In defence, the second defendant, namely, Shyam Babu, who is the heir of Tori Mal, disclaimed any connection with the shop and the first defendant claimed that he was a sub-tenant of the plaintiff on payment of Rs. 10/- per month as rent; that he had been paying rent at that rate regularly to the plaintiff and only the past 9 months' rent was in arrears.