PHOOL CHAND Vs. KHAJU LAL

JUDGEMENT

(1.) THIS appeal is directed against the judgment and decree dated 3rd September, 1986 passed by the learned District and Sessions Judge, Sikar in Civil Regular First Appeal No. 47/85, by which the decree of the trial Court dated 7th February, 1983, passed by the learned Munsif, Sikar was confirmed.

(2.) RESPONDENT -plaintiff instituted a suit against the defendant-appellant. In para 7 of the plaint it was submitted that the disputed shop is in his exclusive possession. It was further submitted that on 7.10.77 the defendant-appellant placed additional lock on the shop. It was also submitted that the defendant-appellant is interfering with his possession and is not allowing the plaintiff to enjoy the shop. Plaintiff-appellant also prayed that the mandatory injunction may be issued against the defendant-appellant for the removal of extra locks places by him. It was further prayed that the prohibitory injunction should also be issued against the defendant-appellant restraining him from interfering with the possession of shop in future. He has also claimed damages at the rate of Rs. 100/- p.m. Defendant submitted that there was a joint tenancy. It was further submitted in para 7 of the written statement that some of the goods of the defendants are lying there. He further asserted that some of the joint goods of the plaintiff and the defendant are lying there. Thus, he denied in para 7 of the exclusive possession of the shop and submitted that there is a joint possession. He denied also the other allegations made in additional pleas. Some objections were also raised which are not very relevant for the determination of this appeal. After considering the pleadings of the parties, the following issues were framed by the Court below :-

(3.) IT is an admitted position that the defendant-appellant Phool Chand and Khaju Lal plaintiff-respondent were the joint tenants of Babu Lal. Joint tenancy was created in the year 1955. The rent which was to be paid was Rs. 35/- P.M. It is also an admitted position that both the parties to this litigation could not continue the business as such, they entered into an agreement on 8th April, 1958. Vide Ex. 1, agreement dated 8th April, 1958, it was agreed upon that part of the premises will be in the exclusive possession of the defendant-appellant Phool Chand and remaining part will be in the exclusive possession of plaintiff Khaju Lal. It was also agreed upon that the joint tenancy shall continue. Rent was also divided between the parties and it was agreed that Khaju Lal will pay Rs. 5/- to Phool Chand defendant-appellant. It was also agreed upon that defendant-appellant will pay his share of Rs. 30/- and will make payment to the Babu Lal. It was also agreed upon between the parties that if any one of the parties vacates the shop he will hand over the vacant possession of his part to the other co-tenant and the other co-tenant will pay the whole rent. This agreement continued upto 5.3.1961. Defendant Phool Chand made a complaint to the plaintiff-respondent that his share of the rent is on the higher side. Ex. 2 agreement was entered into between the parties and it was agreed that defendant-appellant shall pay Rs. 22 and 8 Annas as his share of the rent to Khaju Lal and Khaju Lal shall pay Rs. 12 and 8 Annas of his share and make the payment to the landlord. Joint tenancy continued. Landlord Babu Lal filed a suit against both the defendants for eviction on number of grounds which are not very relevant for the purpose of determination of the appeal. The suit was initially contested by both the parties jointly. On 15.10.1977, the Commissioner inspected the premises and submitted the report to the Court in that suit, which is Ex. 3.