SAWAN MAL Vs. BHAWANI DASS

JUDGEMENT

(1.) THIS is the Defendant's first appeal. The Plaintiff filed a suit for partition of half share in house No. 119/84 A Bamba Road Kanpur and for recovery of Rs. 810/ - as damages for use and occupation and future damages at the rate of Rs. 22 -50 p. per month.

(2.) ADMITTEDLY , the aforesaid house comprises of two shops in the ground floor and residential accommodation on the first floor. The Plaintiff is in occupation of one shop on the ground floor while the Defendant is in occupation of another shop on the ground floor and residential accommodation on the first floor. The Development Board, Kanpur had constructed this premises in 1950 and had thereafter let out the same to the parties. The Plaintiff paid Rs. 45/ -as rent for the shop occupied by him, while the Defendant paid Rs. 40/ - per month as rent for the shop and Rs. 50/ -per month as rent for the residential accommodation.

(3.) THE Defendant admitted in paragraph 27 of the written statement that after the execution of the sale deed the share of the Plaintiff and the Defendant would be half each in the property in suit. It is also admitted that the Plaintiff and the Defendant were in possession of one shop each in the ground floor and that the Defendant also occupied the first floor of the house. The amount of rent paid by the parties as alleged in the plaint was also admitted though it was asserted that the shop of the Plaintiff was bigger than the shop of the Defendant. It was further asserted that the parties are already in possession of the house in suit as tenants and that no question of delivery of possession arises after the decision of the Development Board. The Defendant further admits that he agreed to pay Rs. 22.50 P. per month to the Plaintiff as rent for the excess portion of the house in his possession. It was pleaded that extensive repairs and constructions had been carried out and that the amount of compensation of Rs. 22.50 P. was liable to be adjusted thereunder. It is said that in view of the agreement dated 19 -5 -l955 all taxes levied and amount spent in repairs and renovation and for the upkeep of the house would be brone by the parties in equal shares. It was pleaded that the suit for partition was not maintainable as the sale deed had not yet been executed in favour of the parties by the Nagar Mahapalika Kanpur.