NIHAL CHAND Vs. NATHA SINGH AND OTHERS

JUDGEMENT

(1.) THIS is a defendant's appeal arising out of the suit instituted by Natha Singh plaintiff -respondent for recovery of a portion of the shop of which the possession was and still is with the appellant, Nihal Chand. The suit was decreed by the trial Judge on 29th of July, 1958, and the defendant having failed in his appeal before the Additional District Judge, Ludhiana, has now come in second appeal to this Court.

(2.) THE facts giving rise to this litigation which have been set out in my order of 1st of October, 1959 may briefly be recapitulated. Shop No. B -11 -406/15 was under the tenancy of Natha Singh plaintiff, the owner being Takia Shah Shuja, paying a rent of Rs. 10/ - per mensem. The shop was leased by the Mutwallis Raunqi Shah and Gainda Shah, to the plaintiff before the partition of 1947. On the migration of the Gadi Nashins to Pakistan Natha Singh came to be recognised as an old tenant under the Custodian of Evacuee Property to whom he continued to pay the rent. On 27th of March, 1951, a partnership deed was executed between the plaintiff Natha Singh and Nihal Chand defendant -appellant, and it was provided, inter alia, that Nihal Chand was to carry on the business of a cloth dealer in the shop and a sum of Rs. 150/ - per mensem would be paid to Natha Singh, the account was to be kept by Nihal Chand who, however, was not given any right to have the shop allotted in his favour. The term of the partnership was fixed for two years but Natha Singh could have the partnership dissolved if there was any default in payment of a sum Rs. 150/ - to him by Nihal Chand. The possession of Natha Singh in the shop was affirmed and it was stated that he could continue to have his sign board there. Nihal Chand who was to keep the account of the shop was alone responsible for losses of the firm. The real purpose of the partnership deed was to give a portion of the shop on lease to Nihal Chand who was to carry on the business of a cloth dealer on payment of Rs. 150/per mensem to Natha Singh who was to retain a portion of the shop for continuation of his old business.

(3.) IN the second appeal which came up for hearing before me in the first instance on 1st of October, 1959, it was urged on behalf of Nihal Chand that the trial Court had declined without sufficient reason to frame two essential issues. It so happened that after the institution of the suit one Saidul Rehman was appointed a Mutwalli of the property and Nihal Chand had obtained a lease from him. I took the view that these events having taken place after the institution of the suit and before its decision by the trial Judge, it was imperative for the Court to have adjudicated upon these matters. Accordingly, two issues were framed by me and the case remanded for the reports and findings of the trial Judge and the lower appellate Court. The two additional issues framed by me are: -