HIRENDRA NATH PODDAR Vs. SHIBENDRA NATH PODDAR

JUDGEMENT

(1.) This appeal is at the instance of the defendant no. 1 and it arises out of a suit for partition and possession.

(2.) The plaintiff and the defendants are brothers. Joint properties of the plaintiff and the defendants were partitioned by a registered deed dated February 21, 1972. Upon such partition, the plaintiff and the defendant no. 1 were allotted specific properties in respect of their respective shares, excepting that the disputed property which is a building consisting of two rooms only, was allotted jointly to the plaintiff and the defendant no. 1, the former having " share and the later " the share therein. From before the said partition, a shoe shop named "Sricharaneshu" was being run in the suit house. The shoe business was allotted exclusively to the defendant no. 1 and the plaintiff has no claim thereto. The plaintiff instituted the suit praying for partition by metes and bounds of his 3/4th share in the disputed building.

(3.) The defendant no. 1 contested the suit. His case was that it was settled at the time of the partition among the brothers that so long as he would be carrying on the shoe business, the disputed property would not be partitioned. He had been paying rent of Rs. 75/- per month to the plaintiff in respect of his "th share. Further his defence was that as he was a monthly tenant of the disputed hours under the plaintiff, the suit for partition was not maintainable in view of the provisions of the West Bengal Premises Tenancy Act, 1956 and the Transfer of Property Act. Upon the said allegations, he prayed for the dismissal of the suit.