KULWANT RAI Vs. DES RAJ

JUDGEMENT

(1.) THE present appeal filed by Kulwant Rai and Harbans Lal, plaintiffs, is directed against the judgment and decrees dated September 13, 1986 and October 27, 1990, passed by the Addl. Senior Sub Judge, Barnala, and the Addl. District Judge, Sangrur (Camp at Barnala), respectively, whereby the suit filed by them seeking declaration to the effect that they are in possession of the shop in dispute as tenants under defendant Nos. 10 to 18, and for restraining the said defendants from taking possession of the said shop from the plaintiffs, was dismissed.

(2.) IN brief the facts of the case are that defendant Nos. 1 to 18 were co- owners of certain properties, including the shop in dispute. Ram Chand, one of the co-sharers of the said properties, filed a suit for partition of the said properties in the year 1950. A preliminary decree (Ex. P4) was passed on October 24, 1951. In the meantime Ram Chand died and his legal representatives applied for passing of a final decree with respect thereto. The plaintiffs were inducted into the shop in dispute by Des Raj (defendant No. 1), Jangir Chand (defendant No. 2) and Sohan Lal (since dead). The legal representatives of Sohan Lal are defendant Nos. 3 to 9. An eviction application was filed by defendant Nos. 1 to 9 against the plaintiffs. The said application was dismissed by the Rent Controller, Barnala, in the year 1974. The appeal against the order of the Rent Controller was also dismissed by the Appellate Authority on March 15, 1976. The final decree for partition inter se the defendants, on the basis of the preliminary decree, was passed by the learned Sub Judge, Barnala on January 23, 1981 (Ex. P5) and the shop in dispute fell to the share of defendant Nos. 10 to 18. It was alleged by the plaintiffs that the partition proceedings inter se the defendants were collusive and the shop in dispute was got fallen to the share of defendant Nos. 10 to 18 by way of collusiveness. According to the plaintiffs, as they were not party to the partition proceedings, the said decree was not binding upon them. Further, it has been alleged that after the shop fell to the share of defendant Nos. 10 to 18, the plaintiffs became the tenants of the shop in dispute under the said defendants and the plaintiffs could only be ejected from the shop in dispute through the instrumentality of the Rent Controller under the provisions of the East Punjab Urban Rent Restriction Act.

(3.) ON the pleadings of the parties, the trial Court framed the following issues :-