IQBAL SINGH, J. - (1.) THIS order will dispose of Regular Second Appeals Nos. 835 and 836 of 1993 as the same are directed against a common judgment dated 20.3.1993 of learned Addl. District Judge, Ludhiana.
(2.) THIS case has a chequered history. The facts necessary to get hang of the controversy raised herein deserve to be noticed first. The plaintiff firm M/s Jain Hosiery Factory, Ludhiana and its partners Sudarshan Lal, Swatanter Lal, Subhash Chander and Vipin Kumar filed a suit against Nand Lal and Raj Kumar Jain, respondents herein, for declaration to the effect that they (plaintiffs) were the tenants in possession of a building bearing Municipal No. B.IV 1985 (old) and B.IV 1902/2 (new) a four storeyed building situated in Dal Bazar, Ludhiana as fully described in the cause title and that the decree dated 25.1.1982 obtained by defendant No. 1 against defendant No. 2 in Civil Suit No. 3 of 1980 was not binding on their rights. As a consequential relief, the plaintiffs also prayed for a decree of permanent injunction restraining the defendants from taking possession of the said building in pursuance of the aforesaid decree. As per the averments contained in the plaint, Chuni Lal father of the plaintiffs formed a Joint Hindu Family with his sons i.e. plaintiffs Nos. 2 to 5 and his fifth son Raj Kumar Jain defendant No. 2. This Hindu Undivided Family (hereinafter to be referred as HUF) was doing the business under the name and style of M/s Raj Jain Hosiery Factory and Chuni Lal was its Karta. After the death of Chuni Lal, his eldest son Raj Kumar Jain became the Karta of the said HUF. This HUF had taken the building No. B.IV 1845 (old) and B.IV 1902/2 (new) on rent from its owner Nand Lal, defendant No. 1 for running the hosiery business. Since the year 1957, this HUF had been carrying on the hosiery business in these premises. In the year 1964, however, a partial partition of this HUF took place and the hosiery business was taken over by the partnership firm, named and styled as M/s Raj Jain Hosiery Factory, Dal Bazar, Ludhiana. Plaintiffs Sudarshan Lal, Swatanter Lal, defendant Raj Kumar and one Sat Pal became the partners of this firm constituted on 1.4.1964 when a deed of partnership was also executed. Subsequently, plaintiffs Subhash Chander and Vipin Kumar also joined this firm as partners. It was further averred that at all material times, plaintiffs Sudershan Lal, Swatanter Lal and defendant Raj Kumar Jain were the partners of this firm which was duly registered under the Partnership Act. After the constitution of the partnership firm, defendant Nand Lal had been collecting rent from this firm but he had not been issuing any receipt on that account. It was further alleged that defendant No. 1 with a view to let the building in dispute at a higher rent, invented a device to take possession of the building and thus, filed a suit for possession of the building against defendant Raj Kumar Jain by redemption of the mortgage of the building including stairs, Chobaras, Verandah and open courtyard but he did not disclose the extent of the property which he had mortgaged with defendant No. 2. According to the plaintiffs, they had initially taken a part of the property of Nand Lal on rent from him in the year 1957 at the rate of Rs. 90/- per month. Subsequently, Nand Lal leased out the remaining portion of the said building to them and the rent was increased to Rs. 150/- per month in the year 1965. Thereafter in the year 1970 the rent was further enhanced to Rs. 300/- per month. Defendant Nand Lal received rent from the plaintiffs upto the month of November, 1979 but he never issued receipts. When plaintiff Subhash Chander applied for installation of commercial electric connection in the building, defendant Nand Lal gave his consent in writing, thus admitting the plaintiff- firm to be his tenant in the disputed premises. When the disputed property and the other property was partitioned between defendant Nand Lal and his father, he filed an application before the Tax Superintendent of Municipal Committee, Ludhiana in which he admitted that the plaintiff firm had been in possession of the suit property as a tenant. It was further averred that even in the house tax record of the Municipal Committee, Ludhiana, the plaintiff-firm was recorded as a tenant. It was specifically averred that defendant Nand Lal had no locus standi to seek possession of the said building by redemption of the mortgage from defendant No. 2 because this mortgage was sham, bogus and a paper transaction and the plaintiff firm had been in possession of the said building as a tenant. Defendant Nand Lal in execution of the decree dated 25.1.1982 for redemption of mortgage passed in civil suit No. 3 of 9.1.1980 started threatening the plaintiffs to take actual possession of the said building. According to the plaintiffs, the decree dated 25.1.1982 was illegal, void and ineffective and thus not binding on their rights and that defendant Nand Lal could not dispossess them in execution of the said decree.
(3.) DEFENDANT No. 2 Raj Kumar Jain filed written statement endorsing the case of the plaintiffs and was later on withdrew from the suit and was proceeded ex parte.;