AZEEMULLAH Vs. SALEEMULLAH & OTHERS

JUDGEMENT

(1.) This Second Appeal is preferred against judgement dated 15.2.1978 passed by Vth Additional District judge Etah in Civil Appeal No.90 of 1974 arising out of Original Suit No.43 of 1971.

(2.) The brief facts which give rise to this appeal are that the plaintiff/respondent (hereinafter called as 'respondents') filed Original Suit No.43 of 1971 against the defendant appellant(hereinafter called the 'appellant' ) for possession over the disputed shop and recovery of Rs.360/-as mesne profits.

(3.) The facts which gave rise to this suit was that the plaintiff filed suit on the allegation that the shop in dispute exists in agricultural plot No.1105 towards North of G.T.Road infront of Civil Hospital Etah. The said plot was previously owned by respondent and his own brother Abdul Razzaq. The land in which the said the disputed shop exists in plot No.1105 corresponding Abadi number is 2649. The said plot was purchased by the respondent and his brother from one Mohammad Kadir and Mohammad Sadiq through a registered sale deed dated 29.3.1930 The plaintiff was a postal employee and in connection with his services he used to remain out of city hence the shop in dispute was got constructed by his father Rahim Ullah in the year 1950. The appellant is brother in law of the respondent he was previously resident of Mauza Darjaopur, District Aligarh. He took the said shop at the rent of Rs.10/ per month in the year 1950 and since then he is in possession of the shop. Rahimullah father of the plaintiff died in the year 1956 leaving behind the plaintiff and Abdul Razzaq as the only legal heirs .It was further pleaded that although the shop in question was got constructed by the plaintiff and Abdul Razzaq through their own separate earning yet in case it is found that Rahim Ullah was the owner of the said shop the right of the plaintiff are not affected in any way as the said Rahimullah had left the plaintiff and Abdul Razzaq as the only heirs. A family partition had taken place between the heirs of Abdul Razzaq and the plaintiff and in the said partition the disputed shop was allotted to the share of plaintiff. In order to avoid any complication the plaintiff impleaded the heirs of Abdul Razzaq as defendant Nos.2 to 7 and it was pleaded that even if the partition is not accepted the plaintiff is entitled to sue as a co-sharer impleading all the other co sharers as parties to the suit . The plaintiff had earlier filed a suit for rent and ejectment in the court of Munsif Etah bearing Suit No.258 of 1968 against the defendant no.1 and in the said suit the defendant denied his status as tenant and claimed the title of the shop in himself. The said suit was filed on the basis of contractual liability and no question of title was involved therein. The said suit was howerver, dismissed on 2.6.1969 and the appeal was also dismissed. The present suit was thus filed for recovery of possession on the basis of title. The plaintiff further pleaded that in case the defendant no.1 is not held to be the tenant his possession was merely permissive as a licensee of the plaintiff and as he had denied the title of the plaintiff the license stood revoked ipso facto and at present the defendant no.1 is in possession as a tresspasser. The plaintiff claimed Rs.360/ as mesne profits although the shop could fetch a rent of Rs.15/ per month at lease.