Hon’ble Sanjay Misra, J.—This is a defendants second appeal under Section 100 CPC. It has been filed against the judgment and decree dated 30.10.1984 in Civil Appeal N0. 212 of 1983 passed by the First Additional District Judge, Bijnor whereby the judgment and decree passed by the Trial Court in Suit No. 131 of 1979 between Jai Prakash v. Birmawati and others, has been affirmed.

2. At the time when this appeal was admitted the substantial question of law contained in paragraphs 2 and 3 had been formulated. They are quoted hereunder :

1.Whether the finding that there was an oral family partition in 1960 in which the property in dispute came to the Qurah of the plaintiff respondent is erroneous in law inasmuch as the plaintiff respondent was not able to give the material particulars relating to the alleged partition in his testimony?

2.Whether this admission of Jai Prakash plaintiff respondent that he was a party in objection of Ghasita against the decree passed in original Suit No. 478 of 1967, has been erroneously ignored by the Courts below?

3. Sri B. Dayal learned counsel for the defendant appellant has submitted that Suit No. 131 of 1979 was filed by Jai Prakash son of Ganga Ram against the defendant appellant who is widow of Sri Ganga Ram and the other sons of Ganga Ram as also one Ghasita was made a defendant on the ground that he was tenant of the plaintiff and in an earlier Suit No. 478 of 1967 (Birmawati v. Om Prakash and Ghasita) was dispossessed in execution of such decree. He states that the plaintiff respondent claimed a declaration that he is owner of the disputed properties which contained shops and Balkhana and he be given possession after eviction of the defendant No. 1 to 6. According to Sri Dayal a further declaration was sought by the plaintiff respondent that defendant No. 1 namely Smt. Birmawati widow of Sri Ganga Ram be held not to be owner of the property in question and be injuncted from interfering or changing the nature of the shops alongwith Balkhana on the basis of the decree passed in Suit No. 478 of 1967. According to Sri Dayal Ghasita (defendant No. 7) colluded with Om Prakash and filed Civil Revision No. 70 of 1976 which was rejected by the High Court on 27.10.1978 and in Suit No. 478 of 1967 Jai Prakash was not made a party since he had no concern with the property of Smt. Birmawati.

4. According to Sri A.N. Bhargava learned counsel for the plaintiff respondent No. 1 facts of the case as borne out from the record are that one Ganga Ram was owner of the properties situated in Mohalla Bazar Chowk and Mohalla Sanwaldas. After the death of Sri Ganga Ram his widow Smt. Birmawati (defendant appellant) started looking after the affairs of the family at which time her sons were minors. According to the plaintiff when the shops were purchased they were in a dilapidated condition and plaintiff respondent reconstructed the shops after a family settlement had been entered. It is alleged by the plaintiff respondent that he was 20 years of age and after completing his studies he got service in the Roadways and he let out the shops and Balkhana. The plaintiff alleges that the other brothers were living in other portions of the house and doing their separate business. In a family settlement he was alloted the shop and a portion of the house. According to him his mother Smt. Birmawati and elder brother Om Prakash colluded and obtained the decree for arrears of rent and eviction in Suit No. 478 of 1967 whereby Ghasita was evicted. When the decree of that suit was being executed against Ghasita he filed his objections under Order 21 Rule 100 CPC and the plaintiff respondent appeared as a witness in those proceedings. His objection was rejected and his appeal was also dismissed. He also filed a Suit No. 474 of 1969 for eviction of his tenant namely Abdul Hafiz which was decreed in Appeal No. 101 of 1971 and he obtained possession of the shop in execution case No. 34 of 1972.

5. The case set up by the defen