( 1 ) THIS appeal is by the defendant and is directed against the judgement and decree dt. 13-2-1975, passed by the Fourth Additional District Judge, Ujjain, in Civil Appeal No. 19-B of 1973 confirming the judgement and decree dated 8-3-1973 passed by the Civil Judge Class, I, Ujjain in Civil Suit No. 73-B of 1971, decreeing the respondent's suit for declaration that he was entitled to half share amounting to Rs. 2667-50 being the compensation for acquisition of a part of the house No. 3/2 in Gudari Bazar, Ujjain.

( 2 ) THERE is no dispute that the suit house was purchased by the appellant Shivnarayan in a court auction sate on 10-2-1936. The said action has taken place in execution of a decree of the District Judge, Ujjain. Later on a sale certificate was also issued in favour of the appellant Shivnarayan. The case of the respondent-plaintiff was that there was an agreement between him and the appellant to purchase the suit house in auction jointly with half share each. In pursuance to this, he claimed to have paid half of the purchase price. It was also his case that in order to avoid any dispute between them in future the appellant executed an agreement on 27-11-1938 (Ex. P. 2) incorporating the terms of the earlier oral agreement. It appears that by a notice dt. 14-3-1967 (Ex. P. 3) the respondent required the appellant to comply with the aforesaid agreement. The appellant in reply to the notice (Ex. P. 4) denied execution of the agreement and also its legality. In the meantime a part of the suit house was acquired by the Municipal Corporation, Ujjain for implementing their scheme. The respondent claimed half of the said compensation. The authority concerned, however, was of the opinion that it could mat decide the title of the parties in compensation matter and, therefore, directed that the same be decided by filing a regular suit, In pursuance of the same, the present suit was filed.

( 3 ) THE learned trial Judge was of the opinion that there was an agreement between the parties to purchase the house jointly. It also held that there was no partnership between the parties. The court also held that S. 66 of the Civil P. C. does not apply to the facts of the present case. On these findings, the suit was decreed. The said findings have been affirmed by the learned lower appellate Court and hence this appeal.

( 4 ) THE only question that required consideration of this Court is whether the suit as filed was not maintainable because of S. 66 of the Civil P. C. ? Before entering into consideration of this question, it may be noticed that the trial Court and the appellate Court have both held that there was no partnership as such between the parties at the time of purchase of the suit house. This finding is not under any serious challenge and is otherwise binding on this Court being a concurrent finding of fact. It is also the concurrent finding that there was an agreement between the parties to purchase the suit house jointly and agreement dt. 27-11-1938 (Ex. P. 2) incorporates these terms. There is also no challenge to this finding or the agreement. Under the circumstances, it is clear that both the parties had, by an agreement, purchased the suit house jointly. The present suit is for recovery of half of the compensation on the basis that the respondent-plaintiff has half interest in the acquired property. Though the interest of the respondent in the remaining property is not directly in question, the question relating his interest in the acquired property would necessarily involve the question also. The submission of the learned counsel for the appellant is that S. 66 of the Civil P. C. bars such a suit, and therefore, the impugned judgement and decree are illegal. The learned counsel for the respondent, however, relies on the judgement and decree and submits that the present case is not covered by the aforesaid Section.

( 5 ) SECTION 66 (1) of the Civil P. C. which is relevant for our purpose, is as under :-"