MOHAN LAL Vs. RAM DASS AND ORS.

JUDGEMENT

(1.) This first appeal by the defendant is directed against the judgment and decree of the learned Subordinate Judge 1st Class, Fazilka dated December 24, 1975, decreeing the suit.

(2.) The shop in dispute bearing No. B-IV-221 situate at Mandi Abohar, Tehsil Fazilka, District Ferozepur, was an evacuee property and had been allotted to Karam Chand, Father of Gopal Krishan, defendant No. 4, and husband of Smt. Sushila Wanti, defendant No. 5, by the Custodian, Evacuee Property. Punjab, on October 31, 1949. The said shop was sold in public auction by the Union of India to the Plaintiff for Rs. 39,000/- and a sale certificate was issued in his favour on September 3, 1954. Karam Chand at that time was running partnership business along with the defendant in the said shop in the name of Messers Thakar Dass Karam Chand. Under the provisions of section 29 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954, (hereinafter called the Act), he was deemed to be tenant of the transferee on the same terms and conditions as to payment of rent on which he held the property immediately before the transfer and was not liable to ejectment before the expiry of a period of two years. Long after the expiry of the statutory period of two years, the plaintiff filed an application for his ejectment before the Rent Controller under section 13 of the East Punjab Urban Rent Restriction Act, 1949, on May 11, 1969. During the pendency of this application, Karam Chand died and his legal representatives were brought on the record, but the plaintiff got the application dismissed as withdrawn. Thereafter, he filed the present suit, alleging that Karlin Chand was only a licensee and after his death the defendants illegally took possession of the shop in dispute and started carrying partnership business therein in the name and style of Messrs Thakar Dass Karam Chand. In the alternative, the plaintiff pleaded that even if Karam Chand is taken to be a tenant of the shop in dispute, he being a statutory tenant, his tenancy rights were not heritable and the tenancy came to an end on his death.

(3.) The suit was contested by the defendants and in a joint written statement filed by them, apart from taking certain technical objections, they claimed that Karam Chand deceased secured the allotment of the shop in dispute as a partner for the benefit of the said firm and as such the partnership concern and not Karam Chand was the tenant. In the alternative they pleaded that Karam Chand was not a statutory tenant and on his death the tenancy rights devolved on his heirs the son and the widow defendants Nos. 4 and 5). A new partnership was formed after the death of Karam Chand between the old partners and the heirs of the deceased which was now running its business in the shop in dispute. On the pleadings of the parties, following issues were framed :-