LAWS(ALL)-1985-9-66

PHUNDAN LAL Vs. JHAMMAN LAL

Decided On September 29, 1985
Phundan Lal Appellant
V/S
JHAMMAN LAL Respondents

JUDGEMENT

(1.) THIS is a defendant's first appeal directed against a decree passed by the Court below for partition of a house delivery of actual possession of the plaintiff's alleged half share therein as well for rendition of accounts in respect of the rental income of the house from April 1, 1971 and payment of such amount as may be found due to the plaintiff on accounting. The decree has been passed under Order XVII, Rule 3 of the Code of Civil Procedure. Shortly stated, the plaint case was that the plaintiff and the defendant are brothers being sons of Mannilal Mannilal had purchased a plot and thereafter constructed the house in suit thereon. He along with the plaintiff and the defendant constituted a Joint Hindu Family. Mannilal died on October 9, 1955 leaving the plaintiff and the defendant as his only hens. The result was that the interest in the house in suit devolved on the plaintiff and the defendant in equal shares. Part of the house was in possession of the parties while the remaining part had been let out to the tenants. By mutual consent the defendant was realizing rent from the tenants and after deducting the expenses he used to pay the plaintiff's share to him. However, the defendant has not paid the plaintiff's share from April 1, 1971 to March 31, 1972 despite repeated demands. The plaintiff now does not want to keep the property joint and asked the defendant to partition the property but to no avail. Hence the suit.

(2.) IN the written statement filed by the defendant appellant he did not dispute that the house belonged to Mannilal, their father. His case, however, was that Mannilal their father, was doing parchoon business was running a betel shop in a tenanted premises Mo 79/37 Bansmandi, Kanpur. At the time of his death there were stocks in that shop worth Rs. 5,000/ -. Apart from it he also left some jewellery described and detailed in the annexure to written statement. Thus at the time of his death Mannilal left both movable assets as well as immovable property in the shop and the house in which the plaintiff claimed half share On the death of Mannilal by mutual consent, whereas the plaintiff took all the jewellery, cash and the stock -in -trade left by Mannilal along with the goodwill in premises No. 79/37 Bansmandi, Kanpur the defendant -appellant was given exclusive ownership over the house in suit. Since then the defendant -appellant has been in exclusive occupation of the house in suit as the sole owner thereof and the plaintiff has no right, title or interest therein. For the same reason, the plaintiff is not entitled to claim accounting or any share in the rents realized by the defendant from the tenants or occupying a portion of the house in suit. On the pleadings of the parties, the following issues were framed by the trial Court:

(3.) IT appears that on the date fixed for the hearing of the suit and evidence of the parties neither the plaintiff nor the defendant appeared. The Court below, therefore, proceeded under. Order XVII, Rule 3 of the Code of Civil Procedure and decreed the suit. Learned counsel for the appellant firmly maintained that the Court below rightly proceeded under Order XVII. Rule 3 His contention, however, was that the plaintiff having failed to adduce any evidence whatsoever in support of his case, his suit could not have been decreed as the burden to prove that the parties and their father Mannilal constituted a Joint Hindu Family in which on the death of Mannilal the plaintiff acquired half share in the property in suit lay on the plaintiff. He having failed to discharge that burden the suit should have been dismissed for partition.