TILAK RAJ Vs. VIDHYA DEVI

JUDGEMENT

(1.) This Civil 1st Appeal arises out of the judgment and decree dated 1-3-1995 passed by the learned District Judge, Jammu, whereby the suit filed by the appellant-plaintiff for declaration and partition of the suit shop has been dismissed.

(2.) The facts giving rise to the litigation between the parties, in brief, may be noticed :-_ The appellant-plaintiff is the son of deceased defendant, Krishan Lal, the prede-.cessor-in-interest of present respondents. He filed a suit in claiming therein that he along with his two brothers namely Sudershah Kumar and Mohan Lal, besides the deceased defendant were the partners of firm M/s. Amarnath Krishan Lal. Accord- ing to the appellant plaintiff, the suit shop was purchased by firm M/s. Amarnath Krishan Lal, vide Sale Deed dated 7-10-1967 in the name of deceased defendant Krishan Lal. it was a benami transaction and the entire sale consideration of Rs. 51,000/- was paid out of the funds of firm M/s. Amarnath Krishan Lal and, thus, the deceased defendant was only a benamdar. In fact, the real owner of the said shop was firm M/s. Amarnath Krishan Lal. The other two partners of the aforesaid firm namely Sudershan Kumar and Mohan Lal were retired from the partnership in the year 1970-72 and 1972-73 respectively. The appellant plaintiff further submitted that he along with the deceased defendant constituted the partnership firm and the retiring members Sudershan Kumar and Mohan Lal surrendered their rights in favour of the appellant- plaintiff. The suit shop being the property of the firm, the appellant plaintiff claims half of the share in the said shop which devolved upon them after the retirement of two brothers namely Sudershan Kumar and Mohan Lal from the partnership firm, M/s. Amarnath Krishan Lal. The appellant plaintiff further asserted that though partnership between him and the deceased defendant stands dissolved but the suit property remained undivided and, thus, through the currency of suit claims possession of half of the share by partition in the said shop.

(3.) The deceased defendant, however, resisted the claim of the appellant-plaintiff on variety of grounds and pleaded to be the sole owner of the property viz., the suit shop having been purchased by him with his own funds. The deceased-defendant also stated that the appellant plaintiff had admitted this fact at the time of his retirement from the firm M/s. Amarnath Krishan Lal, while executing retirement deed on 30-1-1984 and compromise deed of the same day executed between him and the appellant-plaintiff, besides other partners.