ASHARAM Vs. RAMLAL

JUDGEMENT

(1.) THE plaintiff -non -petitioner filed a suit against the petitioner -defendant, who is the son of the plaintiff, alleging that the plaintiff non -petitioner had given the petitioner -defendant a licence to occupy the suit portion of the house and that he had revoked the licence. Therefore, the petitioner -defendant be asked to vacate the house. The petitioner -defendant contested the suit and maintained that he had the right to stay on in the house as he has got a share in the whole of the house because the house is a joint Hindu family property and the petitioner is occupying the flat in his own right as the son and he cannot be dispossessed. In the Income -tax Department also the non -petitioner has shown the whole property as the joint Hindu family property and the non -petitioner's contention to this effect was upheld at the appellate stage.

(2.) THE issues were framed in the case. On 16.11.72 the petitioner gave notice to the Advocate of the non -petitioner to produce sale -deed and 'patta' of the house, applications and plans approved by the Municipality Jodhpur for raisin construction, judgment and grounds of appeal before the Assistant Commissioner of Income -tax Jodhpur Range, Jodhpur in cases Nos. 394 to 398/63 -64 and registered mortgage -deeds. The non -petitioner, in his reply to the notice, said that sale -deed and 'patta', though they were in his possession, were not relevant; the rest of the documents were not in his possession and were also not relevant The Learned Munsif City Jodhpur, in whose court the suit was pending rejected the application of the plaintiff vide his order dated 19.1.73 on the ground that there was no such issue and as such the documents asked for by the petitioner were not relevant. Thereafter the petitioner moved an application under Order 14 Rule 5 C.P.C. on 17.2.73 for framing some additional issues suggested in that application. Six new issues were suggested therein. The court vide its order dated 2.4.73 partly allowed this application. As for issues Nos. 1 and 2 as suggested, it was held that the question whether the property is the HUF cannot be finally decided here and that fact can be taken only in rebuttal to issue No. 1 framed by the court which is regarding licence. Issue No. 1 as framed by the court on 12.10.72 is as follows: Whether the defendant had been occupying the suit flat as licensee of the plaintiff with effect from 1.10 68 and whether the defendant had agreed to vacate the flat whenever demanded by the plaintiff? The issue No. 1 suggested by the non -petitioner in his application dated 17.2.73 was to the effect whether the property mentioned in para 2 of the plaint is a Hindu undivided property in which the defendant has his right and share and the defendant if in possession as owner. In view of the order of the trial court dated 2 -4 -1973 this contention of the defendant that he is in possession of the suit property in his own right being a member of ihe joint Hindu family and the property being the property of the joint Hindu family was to be proved by the defendant in rebuttal.

(3.) I have heard the arguments of the learned Counsel for the parties and have gone through the record.