PHUNDAN LAI Vs. JHAMMAN LAL

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 XVIII, Rule 3 of the Code of Civil Procedure.

(2.) 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 heirs. 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.

(3.) 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 No. 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 the 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: