- (1.) This is a decree holder's appeal from an order passed by the learned Civil Judge of Bareilly by which he disallowed the application for the execution of a decree for ejectment of the judgment-debtor from a shop. Briefly the facts are as follows; - The plaintiff, Sheo Prasad, is the owner of a shop in the city of Bareilly. He and his brother, Darbari Lal, who is judgment debtor started business in partnership in Ghee, in the shop in dispute. The rent for the shop was admittedly credited to the decree-holder, Sheo Prasad, in June 1945, the partnership was dissolved by serving a notice, and litigation about rendition of accounts of that partnership is still pending. In the course of that litigation the plaintiff applied to the Civil Judge to direct the defendant to vacate his shop. The learned Civil Judge declined to give such a direction on the ground that the shop was not in dispute. The plaintiff sent a telegram followed by a notice to the defendant requiring the defendant to vacate the shop. Upon the defendant's failure to vacate the shop the suit was instituted on the 16th December, 1945. A perusal of the plaint will show that the defendant was treated by the plaintiff as a Tank trespasser. The suit was framed as one by an owner against a trespasser for ejectment and Court-fee was paid accordingly. A sum of rupees one hundred was asked for, not as arrears of rent but as mens profits.
(2.) One of the issues raised in the suit was "whether the position of the defendant was that of a trespasser or a tenant."
(3.) Hightly or wronglythe learned himself that the defendant was a trespasser and not a tenant and decreed the suit on the 26th September, 1946. There was no appeal and that decree became final.;