Judgment

MATHEW, J.: This is an appeal by special leave from the judgment and decree dated 30-9-1963 passed by the Allahabad High Court in Special Appeal No. 8/1957, reversing the judgment and decree of a single judge of that court in First Appeal No. 54/51 from the decree of the trial court in O. S. No. 69/12 of 1940.

2. The suit was for partition and recovery of the plaintiff s share in the plaint property. The original plaintiff, one Kundan Lal died during the pendency of litigation and he was represented by his son Kunj Behari Lal and widow Shrimati Dallo. The defendants to the action were four in number. Haji Faqir Bux, son of Haji Khuda Bux, and the two sons of Haji Faqir Bux, namely Abdul Ghafoor and Sheikh Abdullah were defendants 1 to 3. The fourth defendant was Shrimati Kallo. Haji Faquir Bux died during the pendency of the litigation. Shrimati Kallo also died during the pendency of this litigation and they are represented in the appeal by their legal representatives. The property, of which partition was sought, consists of a big ahata in mohalla Rahimganj in the city of Lucknow.

3. The property originally belonged to Begum Mumtaz Mahal wife of Nawab Ghaziuddin Hyder. She gifted the property to her sister-in-law, Shrimati Mulko, in 1874. Shrimati Mulko sold it to Babu Rahim Bux who was a benamidar for his father Babu Khuda Bux. Babu Khuda Bux died in 1895; he was succeeded by three sons Rahim Bux, Karim Bux and Nabi Bux, ten daughters and a widow. In 1903, seven out of the ten daughters relinquished their shares in favour of their brothers and mother. In 1904, the three sons, the remaining three daughters and their mother mortgaged with possession the entire estate in favour of the Maharaja of Balrampur by a deed dated February 12, 1904. In 1919, the Maharaja brought a suit on the mortgage and obtained a preliminary decree for sale. Rahim Bux and his two brothers, not being able to pay off the mortgage decree, sold the equity of redemption to one Murlidhar in 1920. Murlidhar redeemed the mortgage by paying off the amount due under the preliminary decree to the Maharaja of Balrampur. Faqir Bux, original defendant No. 1 purchased a share in the equity of redemption from the three daughters and the widow of Babu Khuda Bux and then brought a suit for redemption of his share against Murlidhar and ultimately, by paying off the amount due upon his share to Murlidhar, became a co-sharer in the property to the extent of 3 annas. 10 pies and 9 kirants. This was in the year 1922. By different deeds of transfer, Murlidhar s share passed to Shrimati Kallo original defendant No. 4, and to Kundan Lal, the predecessor-in-interest of Kunj Behari Lal and Shrimati Dallo.

4. In the suit the main contention of Haji Fauir Bux his sons Abdul Ghafoor and Sheikh Abdullah, defendants 1 to 3, was that in addition to their being co-sharers of the property, they were permanent lessees of the blue and red marked portions in the plan of the plaint property prepared by the commissioner appointed in the case. The blue portion belonged to Mumtaz Mahal and there are three shops in it; the red portion belonged to Mumtaz Mahal s successors-in-interest and there are two kotharies 52A and 52B in it. The case of defendants 1 to 3 was that the land included within the blue portion was acquired by Haji Khuda Bux in or about the year 1870 from Begam Mumtaz Mahal on a permanent lease for establishing a tobacco factory on a rent of Rs. 12/- per month and that thereafter, in or about the year 1900 the adjoining land towards the east marked red in the commissioner s plan was leased on the same terms for the extension of the tobacco factory on a monthly rent of Rs. 2/- by the heirs of Babu Khuda Bux to Haji Khuda Bux. They further contended that the shops and kotharies were constructed by Haji Khuda Bux and Faqir Bux.

5. The issue regarding the permanent tenancy right was decided against defendants 1 to 3 by the trail court although the court passed a preliminary decre