P.N. Bakshi, J. - (1.) THIS is the Defendant's first appeal. The Plaintiff filed a suit for partition of half share in house No. 119/84 A Bamba Road Kanpur and for recovery of Rs. 810/ - as damages for use and occupation and future damages at the rate of Rs. 22 -50 p. per month.
(2.) ADMITTEDLY , the aforesaid house comprises of two shops in the ground floor and residential accommodation on the first floor. The Plaintiff is in occupation of one shop on the ground floor while the Defendant is in occupation of another shop on the ground floor and residential accommodation on the first floor. The Development Board, Kanpur had constructed this premises in 1950 and had thereafter let out the same to the parties. The Plaintiff paid Rs. 45/ -as rent for the shop occupied by him, while the Defendant paid Rs. 40/ - per month as rent for the shop and Rs. 50/ -per month as rent for the residential accommodation. It appears that on 19 -5 -1955 the Plaintiff and the Defendant decided to purchase the house in suit from the Development Board. As such, an agreement was executed between the parties Ex. A -9 in respect of the suit property. The terms of this agreement disclose that the Plaintiff and the Defendant were to divide the property in equal shares and each of them was to pay half purchase price. The parties were to remain in possession of the shares which were already occupied by them, till such time as the Development Board decided to transfer the said proper y to the parties. It was also agreed that the Defendant would in the meantime continue to pay Rs. 22.50 P. per month as compensation to the Plaintiff. The further case of the Plaintiff is that in or about 1959 the Development Board decided to transfer the property in question in favour of the parties to the suit, and delivered possession to them as joint owners. Since that day, the parties continue to occupy the accommodation as co -owners in equal shares. It was alleged in the plaint that the Development Board, Kanpur and its successor, the Nagar Mahapalika, Kanpur has not yet executed the sale deed in favour of the parties inspite of the fact that the entire sale consideration has been paid up and they are in possession of the property as co owners. The Plaintiff does not desire to continue as joint owner of the premises in question along with the Defendant. A notice dated 15 -4 -1965 was served on the Defendant calling upon him to partition the property and to give exclusive possession to the Plaintiff of his half share. The Defendant having refused to comply, the present suit was filed for partition of half share of the property in suit and separate possession. Rs. 810/ - as damages for use and occupation were claimed. Pendentelite and future damages were also claimed at the rate of Rs. 22.50 P. per month.
(3.) THE Defendant admitted in paragraph 27 of the written statement that after the execution of the sale deed the share of the Plaintiff and the Defendant would be half each in the property in suit. It is also admitted that the Plaintiff and the Defendant were in possession of one shop each in the ground floor and that the Defendant also occupied the first floor of the house. The amount of rent paid by the parties as alleged in the plaint was also admitted though it was asserted that the shop of the Plaintiff was bigger than the shop of the Defendant. It was further asserted that the parties are already in possession of the house in suit as tenants and that no question of delivery of possession arises after the decision of the Development Board. The Defendant further admits that he agreed to pay Rs. 22.50 P. per month to the Plaintiff as rent for the excess portion of the house in his possession. It was pleaded that extensive repairs and constructions had been carried out and that the amount of compensation of Rs. 22.50 P. was liable to be adjusted thereunder. It is said that in view of the agreement dated 19 -5 -l955 all taxes levied and amount spent in repairs and renovation and for the upkeep of the house would be brone by the parties in equal shares. It was pleaded that the suit for partition was not maintainable as the sale deed had not yet been executed in favour of the parties by the Nagar Mahapalika Kanpur.;