JUDGMENT Hon’ble Prafulla C. Pant, J. This appeal, preferred under Section 100 of Code of Civil Procedure, 1908, is directed against the judgment and decree dated 19.12.1977, passed by learned District judge, Dehradun, in civil appeal No. 51 of 1973, whereby said appeal is allowed and judgment and decree dated 23.06.1976, passed by First Additional Civil Judge, Dehradun, in civil suit No. 233 of 1970, is set aside and the suit is dismissed. 2. Heard learned counsel for the appellants and learned counsel for the respondents. 3. Brief facts of the case are that plaintiff Radha Krishna is the real uncle of defendant Bindeshwari Prasad and they are related by following pedigree :- Heera Lal (Died in 1961) Munshi Lal Radha Krishna Smt. Sripiari (Died in 1970) (Plaintiff) (Daughter) Bindeshwari Prasad Ramesh Chand (Defendant) (Died in 1956) Plaint case is that Late Munshi Lal, father of defendant, used to carry on business jointly in Karanpur, Dehradun, with his brother Radha Krishna (Plaintiff) and they used to run a sweetmeat shop. They purchased a benami property (house) in the name of their father Hira Lal. The said property was situated at 19 Karanpur, Dehradun. The plaintiff started doing his business in said building in the name and style of ‘Alka Restaurant’ with defendant and his brother Ramesh Chand. Ramesh Chand was a physically handicapped person, as such, the plaintiff Radha Krishna and the defendant Bindeshwari Prasad practically used to run the restaurant. However, in 1969, a partition took place and the property in suit i.e. 19 Karanpur, fell in the share of the plaintiff. A partition deed 19.09.1969, was executed between the parties whereafter defendant Bindeshwari Prasad remained simply licensee of the plaintiff in the aforesaid property. The plaintiff revoked the licence, vide notice dated 27.02.1970 and filed a suit for possession and the damages. 4. The defendant Bindeshwari Prasad contested the suit and pleaded that plaintiff had no right to manage the restaurant run by the defendant. It is further pleaded that the property No. 19, Karanpur, did not fall in the share of the plaintiff. It is further pleaded by the contesting defendant that the owner of the property was Hira Lal (grand father of the defendant). The said property was a property of Joint Hindu Family. It is further pleaded that the property No. 19, Karanpur, did not fall in the share of the plaintiff. It is further pleaded by the contesting defendant that the owner of the property was Hira Lal (grand father of the defendant). The said property was a property of Joint Hindu Family. The defendant Bindeshwari Prasad further pleaded that he took the property in question on rent from his grand father Hira Lal on rent at the rate of Rs. 48/- per month. It is also pleaded that he also paid rent after death of his grand father to his father Munshi Lal. It is specifically denied that the defendant was a licensee of the plaintiff. 5. On the basis of the pleadings of the parties, following issues were framed by the trial court :- 1. Whether the defendant was a licensee of the plaintiff in the premises in suit? 2. Whether the defendant took the premises in suit on rent from Shri Hira Lal? 3. To what amount of damages, if any, is the plaintiff entitled? 4. To what relief, if any, the plaintiff is entitled? 6. After recording the evidence and hearing the parties, the trial court decided issue No. 1 and 2 in favour of the plaintiff holding that the defendant was his licensee. It was further held that defendant was not tenant of Hira Lal. As to the mesne profits, the trial court found the plaintiff entitled to mesne profits at the rate of Rs. 48/- per month. Accordingly, the suit was decreed for possession and also for damages at the rate of Rs. 48/- per month w.e.f. 01.12.1970. Future mesne profits were directed to be paid at the rate of Rs. 3/- per day. Aggrieved by said judgment and decree dated 23.06.1973, an appeal (civil appeal No. 51 of 1973) was preferred by the defendant Bindeshwari Prasad before the District Judge, Dehradun, who, after hearing the parties allowed the appeal and dismissed the suit. Hence this second appeal was filed by the plaintiff before Allahabad High Court on 21.04.1978. Allahabad High Court admitted the appeal on 10.04.1979 treating ground No. II and VIII in memo of the appeal as the substantial questions of law. This appeal was received by transfer to this Court under Section 35 of U.P. Reorganisation Act, 2000, for its disposal. Hence this second appeal was filed by the plaintiff before Allahabad High Court on 21.04.1978. Allahabad High Court admitted the appeal on 10.04.1979 treating ground No. II and VIII in memo of the appeal as the substantial questions of law. This appeal was received by transfer to this Court under Section 35 of U.P. Reorganisation Act, 2000, for its disposal. The ground No. II and VIII, mentioned in the grounds of the appeal, read as under :- 1. “Because even on the finding that Hira Lal was the owner of the property, the defendant having an interest in the property, being the grandson of Hira Lal, could not be held to be a tenant of the said property.” 2. “Because at any rate on the findings recorded, the plaintiff was entitled to damages for use and occupation or to the proportionate share of rent. The entire suit could not be dismissed.” 7. In the opinion of this Court, the above grounds are related to findings of fact and in addition to that the substantial question of law on which the learned counsel for the parties argued the appeal is as under :- Whether the lower appellate court committed error of law in setting aside the decree of trial court without reversing the findings recorded by the trial court in its judgment? 8. Answer to substantial question of law on which the arguments are advanced :- Learned counsel for the appellant argued that the lower appellate court without reversing the finding of the trial court, has set aside the decree and as such, committed a material error of law in reversing the decree, passed by the trial court. I have gone through the impugned judgment dated 19.12.1977, passed by learned District Judge, Dehradun. Lower appellate court has nowhere specifically mentioned that the findings recorded by the trial court are wrong. It is admitted to the parties that the plaintiff Radha Krishna, is real uncle of the defendant Bindeshwari Prasad and they were related by the pedigree shown-above. It is also not disputed that the house in question was purchased in the name of Heera Lal, who is common ancestor of both the parties. It is also established on the record that through the partition deed (Ext. 2), property was partitioned between the plaintiff Radha Krishna and his brother Munshi Lal (father of defendant-Bindeshwari Prasad). It is also not disputed that the house in question was purchased in the name of Heera Lal, who is common ancestor of both the parties. It is also established on the record that through the partition deed (Ext. 2), property was partitioned between the plaintiff Radha Krishna and his brother Munshi Lal (father of defendant-Bindeshwari Prasad). The trial court in its judgment has discussed in detail that the house in question which came in the share of the plaintiff through partition deed entered between the parties in the year 1969, and since then defendant Bindeshwari Prasad became licensee of the plaintiff. As to the plea taken by the defendant that he was tenant of his grand father Hira Lal was not found proved by the trial court. The lower appellate court has accepted the oral testimony of the defendant that he was tenant of Heera Lal merely on the ground that due to the relation between the parties, the receipt might not have been issued for the rent paid by the defendant. The approach adopted by the lower appellate court is a strange one, as this fact itself is unnatural that the grand father would let out his house to his grand son. The said fact must have been proved by the defendant with a cogent and reliable evidence to remove doubt as to why such unnatural tenancy was entered between the grand father and the grand son. The lower appellate court should have given sufficient reasons to disagree with the view taken by the trial court on the basis of the evidence on record. It is pertinent to mention here that admittedly Hira Lal, the grand father of the defendant, had died in the year 1961, while the partition deed was entered between his two sons plaintiff Radha Krishna and Munshi Lal (father of the defendant-Bindeshwari Prasad) in the year 1969, as such after the property came into the share of the plaintiff, there is no question of relationship of landlord and tenant between Heera Lal and Bindeshwari Prasad after 1961. The finding of the lower appellate court that defendant Bindeshwari Prasad was tenant in the house is perverse and it has committed grave error of law in setting aside the decree, passed by the trial court. The substantial question of law stands answered accordingly. 9. Mr. The finding of the lower appellate court that defendant Bindeshwari Prasad was tenant in the house is perverse and it has committed grave error of law in setting aside the decree, passed by the trial court. The substantial question of law stands answered accordingly. 9. Mr. B.P. Nautiyal, learned counsel for the respondents made submission to the Court that no substantial question of law was formulated by the High Court, at the time of admission of this appeal. However, the said submission is against the record as is clear from the order dated 10.04.1979, passed on the back of the memorandum of appeal wherein grounds No. II and VIII of the memorandum of appeal have been accepted as substantial question of law by the Allahabad High Court. 10. Next submission advanced on behalf of the respondents is that had there been any family partition as alleged by the plaintiff, in which disputed property had gone in the share of the plaintiff, the sister of plaintiff should have got her share. Having gone through the evidence on record, this Court finds that had the property been ancestral one, this fact would have been relevant, as to what happened to the share of the daughter of Hira Lal. The evidence on the record proves that the land was purchased by the plaintiff and his brother Munshi Lal (father of the defendant Bindeshwari Prasad) in the name of their father, and as such, the property was partitioned between the two. The finding of fact recorded by the trial court on this point is well discussed and based on the evidence on record. The lower appellate court’s finding that the transaction was not ‘benami’ is contrary to the documentary evidence i.e. copy of Income-tax return of 1956-57 (Ext. A-24 to the trial court’s record), wherein the property in dispute has been shown as the property of the joint family of the plaintiff and his brother. The lower appellate court has misread the evidence on record, and ignored the material evidence like Ext. 2, a written partition deed between the plaintiff and Munshi Lal (father of the defendant Bindeshwari Prasad). What Munshi Lal has accepted in partition, his son (defendant) is bound by it. 11. Lastly, on behalf of the defendant/respondents it is submitted that respondent No. 1/1 Smt. Radha Rani has expired. 2, a written partition deed between the plaintiff and Munshi Lal (father of the defendant Bindeshwari Prasad). What Munshi Lal has accepted in partition, his son (defendant) is bound by it. 11. Lastly, on behalf of the defendant/respondents it is submitted that respondent No. 1/1 Smt. Radha Rani has expired. But it is evident from the record that all her legal heirs are already on record, as such, the same does not make any difference. As far as the death of respondent no. 1/4 Rekha Rani (married daughter of Bindeshwari Prasad) is concerned, the right to sue still survives against other respondents, and the appeal stands abated only against her. As per the Process Server’s report Smt. Rekha Rani was married daughter of Bindeshwari Prasad, who had died. 12. For the reasons, as discussed above, this appeal deserves to be allowed. The same is allowed. The impugned judgment and decree dated 19.12.1977, passed in civil appeal No. 51 of 1973, by District Judge, Dehradun, is set aside. The judgment and decree passed by the trial court (First Additional Civil Judge, Dehradun) in civil suit No. 233 of 1970 is restored. However, the respondents are allowed two months time from today to deliver the possession peacefully, to the plaintiff (appellants) failing which, the decree may be got executed through the court concerned. As against respondent No. 1/4 the appeal stands abated. No order as to costs.