- (1.) THIS is a defendant's appeal against the judgement and decree dated 29-8-1968 passed by the Civil Judge, Etawah, confirming the preliminary decree for partition dated 10-7-1967 passed by 1st additional Munsif, Etawah in Original Suit No. 489 of 1963.
(2.) ONE Parmeshwari Das had 5 sons including Tara Chand, father of the respondent Gopal Chand, Mitthoo Lal, appellant and Shambhu Dayal. The respondent claimed half share in 3 shops detailed at the foot of the plaint situate in the town of Etawah. The property in dispute was valued at Rs. 7680/- as found by the Additional Munsif in his order dated 10-9-1966. The respondent, therefore, valued the suit at Rs. 3840/-. These shops were purchased from one Abdul Rahman by sale deed dated 20-10-1930 Ex. A-19. This sale deed is in favour of the appellant and his brother Tara Chand, father of the respondent. In the plaint the boundaries of the shops are mentioned as : East- shop of Subedar West- Stairs and shop of Durga Swarup North- Road South- House of Shambhu Dayal. In the sale deed the boundaries of the 3 shops sold are :- East- Shop of Mitthoo Lal West- Shop of Jyoti Swarup North- Road South- House of Shambhu Dayal and Mithoo Lal. These three shops were later on converted into two shops vide map, 4/5C (165) part of the decree. One shop towards west has been shown in green colour. The other shop towards east and south has been shown in yellow colour. To the east of eastern yellow shops, shop of Subedar has been mentioned.
(3.) DEFENCE of the defendant appellant was that he was the exclusive owner of the eastern shops shown in yellow colour, that in fact he alone had purchased the shops through Abdul Rahman, that the name of Tara Chand was just fictitious and ostensible, that the suit was barred by time as the respondent was not in possession of the disputed shop. There were two mortgage deeds dated 21-1-1919 Exs. A20 and A21 executed by Abdul Rahman. The two shops towards west were mortgaged in favour of Ganga Ram by mortgage deed, Ex. A 20. One shop towards east was mortgaged in favour of Parmeshwar Das father of the appellant by mortgage deed Ex. A 21. In this deed shop of Subedar has been shown towards east. The position that follows from the two mortgage deeds is that to the east of the three shops of Abdul Rahman there was shop of Subedar which still exists at the place where it was.;