Deoki Nandan, J.
1. This is a defendant's second appeal in a suit for ejectment and damages in respect of a half portion of a shop.
2. The plaintiff claimed to have taken the shop on a monthly rent of Rs. 14/- per month from one Begum Khurshed Khwaja and to have started a business therein in partnership with one Tori Mal under the name and style of Mohd. Ismail Tori Mal. The rent was paid by the Firm and it appears that the Firm came to be treated as a tenant of the shop. The plaintiff's share in that partnership was 3/4th and that of ToriMal 1/4th. However, in 1949 the business of that partnership appears to have come to a stop and Tori Mal is said to have taken possession of 3/2 of the shop on the eastern side and to have started separate business in partnership with Baboo Lal and the first defendant Sher Singh. A Suit No. 604 of 1951 was filed by the plaintiff against Tori Mal. It was held in that suit that the plaintiff's share in the partnership assets was 3/4th and that of Tori Mal 1/4th and the tenancy of the shop was also ordered to be divided between the two in the same proportion. During the pendency of the second appeal in that suit in this Court, Tori Mal died and his brother Het Ram, in partnership with Sher Singh, the present defendant No. 1, carried on the business. Het Ram also died thereafter and the second defendant, Shyam Babu came in his place, but later on it appears that even Shyam Babu ceased to have any connection with the business and Sher Singh, the first defendant, alone came to carry on business in the 1/4th portion of the shop which was allotted to Tori Mal in that suit.
3. In defence, the second defendant, namely, Shyam Babu, who is the heir of Tori Mal, disclaimed any connection with the shop and the first defendant claimed that he was a sub-tenant of the plaintiff on payment of Rs. 10/- per month as rent; that he had been paying rent at that rate regularly to the plaintiff and only the past 9 months' rent was in arrears.
4. The following were the issues on which the parties went to trial;
'1. Whether the defendant No. 1 is a trespasser after the death of Tori Mal due to termination of partnership? If not is he a sub-tenant as alleged ?
2. Whether defendant No. 1 or 2 is liable to pay any damages as alleged If so its effect ?
3. To what relief and amount is the plaintiff entitled ?'
5. On Issue No. 1 the trial court found that the first defendant Sher Singh became a trespasser after the death of Tori Mal on account of the termination of the partnership and could not be said to be a subtenant as alleged by him. I may here, as well, observe that after the decision of the suit between the present plaintiff and Tori Mal, a Suit No. 457 of 1965 was filed by the landlord against the present plaintiff and Sher Singh, the first defendant. The claim in that suit was for ejectment, and the ground on which it had been claimed wassub-letting. It was held in that suit that there was no contract of subletting between the present plaintiff and Sher Singh, the first defendant and that Tori Mal was a joint tenant of the present plaintiff. That suit was dismissed on that finding. The trial court based its finding in the present suit on the finding of that suit, holding it to be res judicata. It also held that the partnership between Tori Mal and Sher Singh, defendant No. 1 stood dissolved on the death of Tori Mal and thereafter Sher Singh started running the business as the sole owner and consequently, according to the trial court, Sher Singh could not be said to kave 'inherited' the tenancy right to Tori Mal. On the second issue the trial court held that Sher Singh was liable to pay Rs. 360/- as damages for use and occupation at the rate of Rs. 10/- per month for the last three years and pendente lite and future at the rate of Rs. 5/- per month. In arriving at this finding, the trial court relied on the first defendant's case that the shop could be let out at Rs. 10/- per month, but does not appear to have given reasons for impliedly disbelieving his case that only 9 months' rent was due when the suit was instituted. In the result, the trial court decreed the suit for ejectment and for recovery of Rs. 360/- as damages up to the date of suit and pendente life and future at the rate of Rs. 5/- per month.
6. The defendant Sher Singh'g appeal to the District Court was dismissed by the court of II Additional Civil Judge,, Aligarh. It was found by the learned Additional Civil Judge that the plaintiff had admittedly entered into separate possession over 3/4th portion of the shop, obviously in accordance with the partition decree in the earlier suit between the present plaintiff and Tori Mal. But, according to the lower Appellate Court after the death of Tori Mal, the first defendant Sher Singh could not be said to have inherited the tenancy right of Tori Mal 'and further that in the case of joint tenancy if one of the joint tenant dies leaving no heirs or if his heirs relinquished that right in the tenancy, then the whole of the tenancy shall vest in other co-tenant'. It was on this basis that the lower Appellate Court ultimately held that the first defendant could not be said to be a co-tenant along with the plaintiff and further that the first defendant had failed to substantiate his plea of sub-tenancy.
7. Mr. S. A. Khan learned Counsel for the defendant-appellant, urged before me that the partition decree had put an end tothe joint tenancy between the present plaintiff and Tori Mal in respect of tenancy rights in the shop. Tori Mal is said to have died after the passing of the trial court decree in that suit and the plaintiff has admittedly entered into separate possession over 3/4th portion of the shop which was allotted to him in that partition decree. The result, according to Mr. S. A. Khan, a that Sher Singh, must be deemed to have become a tenant of the 1/4th portion of the shop by assignment of Tori Mal's rights inasmuch as he came into possession of the entire assets of the business carried on by him in partnership with Tori Mal in that shop and that even if the first defendant's plea of sub-tenancy is found to be wrong in law, that correct position in law appears to be that the present plaintiff and the first defendant became co-tenants of the shop the plaintiff being entitled to a 3/4th share and the first defendant to a 1/4th share therein.
8. Mr. V. K. Gupta, learned Counsel fan the plaintiff-respondent vehemently supported the judgment and the findings of the two courts below. His contention was that it was found in the earlier Suit No. 62 of 1964 filed by the landlord in which the present plaintiff and the first defendant both were impleaded as defendants that the present first defendant was not a sub-tenant of the present plaintiff and further that Tori Mal was a joint tenant with the present plaintiff. According to Mr. Gupta it could not now be held that the first defendant has become a co-tenant along with the plaintiff and, at any rate it cannot at all be held that the first defendant is a sub-tenant of the plaintiff.
9. Although the present plaintiff and the first defendant were both parties as defendants to the earlier Suit No. 62 of 1964 by the landlord there was no conflict of interest between them inter se and both of them were interested in saving the tenancy and defeating the landlord's claim for ejectment It cannot, therefore, be said that the finding of that suit operates as res judicata between the present plaintiff and the first defendant Even so, what was held in that suit was that a contract of sub-tenancy between the present plaintiff and the first defendant was not proved and that Tori Mal was a joint tenant of the present plaintiff. Assuming that to be the correct position, the joint tenancy between the present plaintiff and Tori Mal came to an end with the giving effect to the partition decree in the suit be-tween them. The result was that from joint tenants, the present plaintiff and Tori Mal became co-tenants having definite shares the share of the plaintiff being 3/4th and that of Tori Mal being 1/4th. It is in evidence that the first defendant was carrying on business in partnership with Tori Mal and that on Tori Mal's death the first defendant came into possession of the entire business assets of the partnership and has been carrying on. business at that very place, though alone. This means that the goodwill of the partnership business carried on between Tori Mal and the first defendant, passed on to the first defendant after the dissolution of the partnership, on the death of Tori Mal. The result in law is that the tenancy rights in the 1/4th portion of the shop stood assigned to defendant No. 1 as part of the goodwill of the partnership and Tori Mal's place came to be occupied by the first defendant Sher Singh by operation of law. I, therefore, hold that the plaintiff and the first defendant Sher Singh are co-tenants of the shop the share of the plaintiff therein is 3/4th and that of the first defendant is 1/4th and since the plaintiff is already in possession of his 3/4th share and the first defendant too is in possession of his 1/4th share, the suit for the first defendant's ejectment must fail.
10. As to the amount claimed by way of damages, there could be no decree by way of damages because the possession of the first defendant on 1/4th portion of the shop is lawful and the plaintiff had, in the suit, claimed wrongly that the first defendant was in possession of 1/2 portion of the shop; and had on that footing claimed Rs. 10/~ per month by way of damages, although the total rent payable for the whole shop was said to be only Rs. 14/- per month. The first defendant Sher Singh, on the other hand, had claimed that he was a sub-tenant on payment of Rs. 10/- per month and that 9 months' rent was due. I do not know that is the exact rate of rent payable to the landlord, but if it is only Rs. 14/- per month, the proportionate amount payable by the first defendant Sher Singh, whether directly, if the landlord is prepared to accept it, or through the plaintiff in case the landlord is not prepared to accept it would work out to Rs. 3.50 per month. However I would leave the matter open rather than decide it here. Suffice it to say, that no decree for damages can be passed against the first defendant Sher Singh on the facts in this suit. It will be open to the parties to arrive at a reasonable settlement on the point.
11. The amounts deposited by the first defendant, Sher Singh, in pursuance of the stay order of this Court, dated 23-10-1970 confirmed by order dated 17-5-1979, would become refundable to the first defendant Sher Singh. But, before refunding the amount, so deposited, the executing court shall try to bring about a reasonable settlement between the parties about the amount payable by the first defendant to the plaintiff, and if the parties fail to do so, the executing court shall decide and determine the amount which should be paid by the defendant to the plaintiff, and shall deduct the same from the said deposit and pay it over to the plaintiff and refund the balance to the defendant.
12. In the result, the appeal succeeds and is allowed. The plaintiff's suit is dismissed. But, in the circumstances, I direct the parties to bear their own costs throughout.