Point of Law: It is clear that subject matter of the present case has become extinguished. There is no tenancy rights of respondents in-existence, hence suit has become infructuous and is liable to be dismissed.

JUDGMENT :

1. This second appeal has been filed against the judgment and decree dated 18.7.1988 passed by Civil Judge, Jhansi in Civil Appeal No. 201 of 1985 (Ganesh Prasad and others vs. Ramesh Singh and others). Learned appellate court has allowed the appeal filed against the judgment and decree dated 30.9.1985 in Original Suit No. 70 of 1976 (Ganesh Prasad and others Vs. Ramesh Singh and others) set-aside the judgment and decree of the trial court by which the original suit was dismissed and has decreed the suit of plaintiff for partition for a share of 3/8 in the disputed shop.

2. In brief the facts are as follows:-

Ganesh Prasad and others filed a suit for partition before the trial court. It was pleaded that Chiranji Lal, father of plaintiff nos. 1 and 2 and defendant no. 1 and husband of plaintiff no. 3 was tenant in possession of shop no. 393/2 Chamanganj Sipri Bazar, Jhansi and was running a barber shop. Defendant no. 1 also worked with him. Plaintiff was employed in railway and whenever he got time and opportunity he also performed the hair cutting work and plaintiff no. 2 also cooperated in the said vocation. Chiranji Lal died on 23.8.1974. After the death of Chiranji Lal plaintiffs and defendant no. 1 became tenants of the shop and came in possession. Defendant no. 1 with malafide intention of getting exclusive possession stopped giving the accounts of income. Plaintiffs have 3/4 share in the tenancy of the shop. The length of the alleged shop is 16 fit and width 8 fit and it can be partitioned between the parties.

3. Defendants in their written statements denied that plaintiffs are tenant of the disputed shop. They further pleaded that tenancy rights can not be partitioned. It was further alleged in the written statement that plaintiff no. 1 is an employee of railway while plaintiff no. 2 is a teacher. Plaintiff no. 3 being a woman of the plaintiff are not doing vocation of hair cutting. If the disputed shop is partitioned and any construction is erected then the landlord will evict him. Lastly it was also pleaded that tenancy rights can be acquired by succession but it cannot be partitioned. Defendant no. 5 filed separate written statement in which he denied the plaint case and further pleaded that plaintiffs and other defendants have no concern with the disputed shop. They are not entitled to get possession of the disputed shop. No permanent partition can be made. The owner of the disputed shop is Sri 1008 Raghunathji temple and answering defendants is its tenant on a monthly rent of Rs. 75/-and in possession of the disputed shop. After getting the disputed shop on rent the answering defendant has invested a lot of money in it and got it reconstructed. He is regularly paying the rent to the landlord and running hotel business in it. He also pays the electricity and water tax dues. Plaintiff has not arrayed Sri Raghunathji temple who is necessary party while plaintiff nos. 1 to 4 have been wrongly impleaded. Neither plaintiffs nor defendant nos. 1 to 4 are in possession of the disputed shop. They are also not tenant of the disputed shop, hence, the plaintiffs have no right to get the disputed shop partitioned.

4. Learned trial court framed 12 issues and after taking evidence from both the parties held that plaintiffs have failed to prove that they have 3/4 share as co-tenants in the shop in dispute. It further held that tenancy rights can not be partitioned. Tenants have only right to use the tenanted property, hence, suit for partition is not maintainable. On the basis of the aforesaid findings the learned trial court dismissed the suit by the judgment and order dated 30.9.1985.

5. Aggrieved by the aforesaid judgment and decree plaintiffs filed Civil Appeal No. 201 of 1985. The learned first appellate court reversed the findings of the trial court and held that plaintiffs being joint tenants have 3/8 share in the disputed shop and further that tenancy rights can be subject to partition. Learned first appellate court