RAMKALI RAMBHARAOSE KATIYAR Vs. RAMDULARE SHIVPRASAD KATIYAR

JUDGEMENT

(1.) Though this is a second appeal filed by the plaintiff against the concurrent decrees passed by both the courts below, the appeal has got to be allowed firstly because the main question that fell for determination of the Court has not been addressed to by either of them and secondly because the view taken by both the courts below is unsupportable in law.

(2.) Normally, facts can be and are stated in a judgement in Second Appeal on the basis of the facts that are either found or admitted. But in the instant case, many of the facts have been properly adjudicated upon at all and there is a dispute about practically every factual position. Hence, I will set out the facts by referring, mostly to the contentions of each of the parties, the plaintiffs and the defendant, in their pleadings.

(3.) As against this claim of the plaintiffs, the defendants contention in the written statement consisted of general denial of the plaintiffs claim and the setting up of some positive case of his own. The positive case set-up by the defendant was that Rambharose and the defendant were brothers and that they were residing in the Chawl belonging to Zunjarrao jointly from the very beginning. Contention was that both of them came from their native place together and were carrying on the business of Pan Beedi shop together in partnership with one Tikaram. The categorical plea of the defendant was that the said shop was of the joint ownership of Rambharose and the defendant and that it had been acquired by them from Tikaram for both of them. The defendant contended that Rambharose being the elder brother, naturally his name alone was shown in the Government Records, but that all the same the business belonged to both of them and they were carrying on the same jointly and that were also staying together. In view of this positive case made by the defendant, the contrary case set up by the plaintiff was denied by the defendant. The plea of agency or trusteeship was denied. It may be, however, mentioned here that significantly enough though the defendant has laid claim to the business in the shop in House No. 61 and he has incidentally claimed also interest in the tenancy right in respect of the same by stating that so far as the Pan Beedi Shop was concerned it was jointly the property of Rambharose and the defendant, no such plea is raised by the defendant so far as the residential premises in Room No. 31 are concerned. No reason is given by the defendant for contending as to why the rent receipt even in respect of Room No. 31 in House No. 53 was in the name of the plaintiff. It is stated by the defendant that he and Rambharose were staying together, but it is nowhere contended by the defendant in the written statement that the defendant had any kind of interest in the residential premises in Room No. 31 in House No. 53. This aspect of the pleading has got bearing upon the question as to whether the lower courts has properly addressed themselves to the real question which fell for their determination.