A.N. Verma, J. - (1.) THIS is a defendant's first appeal directed against a decree passed by the Court below for partition of a house delivery of actual possession of the plaintiff's alleged half share therein as well for rendition of accounts in respect of the rental income of the house from April 1, 1971 and payment of such amount as may be found due to the plaintiff on accounting. The decree has been passed under Order XVII, Rule 3 of the Code of Civil Procedure. Shortly stated, the plaint case was that the plaintiff and the defendant are brothers being sons of Mannilal Mannilal had purchased a plot and thereafter constructed the house in suit thereon. He along with the plaintiff and the defendant constituted a Joint Hindu Family. Mannilal died on October 9, 1955 leaving the plaintiff and the defendant as his only hens. The result was that the interest in the house in suit devolved on the plaintiff and the defendant in equal shares. Part of the house was in possession of the parties while the remaining part had been let out to the tenants. By mutual consent the defendant was realizing rent from the tenants and after deducting the expenses he used to pay the plaintiff's share to him. However, the defendant has not paid the plaintiff's share from April 1, 1971 to March 31, 1972 despite repeated demands. The plaintiff now does not want to keep the property joint and asked the defendant to partition the property but to no avail. Hence the suit.
(2.) IN the written statement filed by the defendant appellant he did not dispute that the house belonged to Mannilal, their father. His case, however, was that Mannilal their father, was doing parchoon business was running a betel shop in a tenanted premises Mo 79/37 Bansmandi, Kanpur. At the time of his death there were stocks in that shop worth Rs. 5,000/ -. Apart from it he also left some jewellery described and detailed in the annexure to written statement. Thus at the time of his death Mannilal left both movable assets as well as immovable property in the shop and the house in which the plaintiff claimed half share On the death of Mannilal by mutual consent, whereas the plaintiff took all the jewellery, cash and the stock -in -trade left by Mannilal along with the goodwill in premises No. 79/37 Bansmandi, Kanpur the defendant -appellant was given exclusive ownership over the house in suit. Since then the defendant -appellant has been in exclusive occupation of the house in suit as the sole owner thereof and the plaintiff has no right, title or interest therein. For the same reason, the plaintiff is not entitled to claim accounting or any share in the rents realized by the defendant from the tenants or occupying a portion of the house in suit. On the pleadings of the parties, the following issues were framed by the trial Court: 1. Whether the parties' father Mannilal alias Minnulal had left the property described in Annexure A after his death? If so, its effect? 2. Whether the tenancy in house No. 79/37 Bansmandi, Kanpur was surrendered by the defendant under the mutual agreement as alleged in Para 14 of the written statement? Whether a partition had taken place between the parties in 1955 as alleged in Para 10 and 11 of the written statement? If so its effect? 3. WHETHER there has been complete ouster of the plaintiff from house No. 107/273 Brahma Nagar, Kanpur? 4. WHETHER the defendant has been in possession of the house in suit for more than 12 years exclusively to the knowledge of the plaintiff? Whether the defendant has carried out repairs in suit by spending Rs. 500/ - as alleged in Para 13 of the written statement? If so, its effect? 5. WHETHER the suit is bad for partial partition? 6. WHETHER the plaintiff is entitled to a decree of partition and separate possession of his half share in the house in suit? Whether the plaintiff is entitled to accounting the rentals of the house in suit from 1.4.1971 onwards and receive the amount found due to him in that behalf? 7. WHETHER the suit has been under valued and the Court -fee paid is insufficient? 8. TO what relief, if any, is the plaintiff entitled?
(3.) IT appears that on the date fixed for the hearing of the suit and evidence of the parties neither the plaintiff nor the defendant appeared. The Court below, therefore, proceeded under. Order XVII, Rule 3 of the Code of Civil Procedure and decreed the suit. Learned counsel for the appellant firmly maintained that the Court below rightly proceeded under Order XVII. Rule 3 His contention, however, was that the plaintiff having failed to adduce any evidence whatsoever in support of his case, his suit could not have been decreed as the burden to prove that the parties and their father Mannilal constituted a Joint Hindu Family in which on the death of Mannilal the plaintiff acquired half share in the property in suit lay on the plaintiff. He having failed to discharge that burden the suit should have been dismissed for partition. Having heard learned counsel for the parties, I find no merit in the above contention. Whether Manni Lal and his two sons constituted a Joint Hindu Family is, in my opinion, not of much relevance. For it was not disputed by the defendant in his written statement that the house in suit belonged exclusively and solely to Mannilal. If the house belonged exclusively to Mannilal at the time of his death, it is apparent that unless the defendant proved that there was a partition between him and the plaintiff as a result of which the house came exclusively to belong to the defendant, the plaintiff must be held to have inherited half share in the house as one of the two heirs left by Mannilal on his death.;