Delhi District Court
Har Bai (Deceased) Through Lrs vs Jai Gopal (Deceased) Through Lrs on 12 August, 2025
THE Court OF MS. SHIVALI SHARMA DISTRICT JUDGE-06:
CENTRAL DISTRICT TIS HAZARI Court: DELHI
CS DJ NO. 11321/2016
In the matter of:-
1. Sarwan Kumar
2. Smt. Har Bai deceased represented by LRs
i. Shri Sarwan Kumar,
S/o Late Sh. Balkishan Dass,
2101, Katra Tobacco,
Khari Baoli, Delhi-110006.
ii. Smt. Narmada Devi,
W/o Shri Sham Sunder Chharia,
500, Lahori Gate, Delhi.
iii. Smt. Shakuntala Devi,
W/o Shri Ram Niranjan Aggarwal,
53, JB Nagar, Andheri East,
Bombay.
iv. Smt. Shashi Kanta,
W/o Shri Vijay Kumar Bajaj,
13B/2B, Kidwai Nagar,
Kanpur.
v. Smt. Santosh Rani,
W/o Shri Varinder Kumar Aggarwal,
259, Katra Peran, Khari Baoli,
Delhi.
vi. Shri Bhagwan Dass, Digitally signed
S/o late Shri Balkishan Dass, SHIVALI by SHIVALI
SHARMA
CS DJ NO. 11321/2016 Sarwan Kumar vs Jai Gopal SHARMA Date: 2025.08.12
15:23:08 +0530
CS DJ NO 11320/16 Har Bai vs Jai Gopal
Page no.1/49
C-3/197, Janakpuri,
New Delhi.
vii. Shri Bharat Bhushan,
S/o Late Sh. Balkishan Dass,
2101, Katra Tobacco,
Khari Baoli, Delhi-110006. .................Plaintiffs
versus
SHRI JAI GOPAL
S/o Late Shri Laxmi Narain,
R/o 18/8, Shakti Nagar,
Delhi-110007.
Through his LRs :
a) Smt. Radha Rani
W/o Late Sh. Jai Gopal
b) Smt. Pushpa
D/o Late Sh. Jai Gopal
c) Smt. Madhu
D/o Late Sh. Jai Gopal
d) Sh. Vinay Kumar
S/o Late Sh. Jai Gopal
e) Sh. Ajay Kumar
S/o Late Sh. Jai Gopal
All residents of :
H. No.18/8, Shakti Nagar,
Near Dhariwal Chowk, Delhi-07. ...........Defendants
Date of institution : 01.05.1992
Date of Reserving Order : 31.07.2025
Date of decision : 12.08.2025
CS DJ NO. 11321/2016 Sarwan Kumar vs Jai Gopal
CS DJ NO 11320/16 Har Bai vs Jai Gopal
Page no.2/49
CS DJ NO 11320/16
In the matter of:-
Smt. Har Bai deceased represented by LRs
1. Shri Sarwan Kumar,
S/o Late Shri Balkishan Dass,
2101, Katra Tobacco,
Khari Baoli, Delhi-110006.
2. Smt. Narmada Devi,
W/o Shri Sham Sunder Chharia,
500, Lahori Gate, Delhi.
3. Smt. Shakuntala Devi,
W/o Shri Ram Niranjan Aggarwal,
53, JB Nagar, Andheri East,
Bombay.
4. Smt. Shashi Kanta,
W/o Shri Vijay Kumar Bajaj,
13B/2B, Kidwai Nagar,
Kanpur.
5. Smt. Santosh Rani,
W/o Shri Varinder Kumar Aggarwal,
259, Katra Peran, Khari Baoli,
Delhi.
6. Shri Bhagwan Dass,
S/o late Shri Balkishan Dass,
C-03/197, Janakpuri,
New Delhi.
7. Shri Bharat Bhushan,
S/o Late Sh. Balkishan Dass,
2101, Katra Tobacco, Khari Baoli, Delhi-110006.
.................Plaintiffs
CS DJ NO. 11321/2016 Sarwan Kumar vs Jai Gopal
CS DJ NO 11320/16 Har Bai vs Jai Gopal
Page no.3/49
Versus
SHRI JAI GOPAL
S/o Late Shri Laxmi Narain,
R/o 18/8, Shakti Nagar, Delhi-110007.
Through his LRs :
a) Smt. Radha Rani
W/o Late Sh. Jai Gopal
b) Smt. Pushpa
D/o Late Sh. Jai Gopal
c) Smt. Madhu
D/o Late Sh. Jai Gopal
d) Sh. Vinay Kumar
S/o Late Sh. Jai Gopal
e) Sh. Ajay Kumar
S/o Late Sh. Jai Gopal
All residents of :
H. No.18/8, Shakti Nagar,
Near Dhariwal Chowk, Delhi-07. .......Defendant
Date of institution : 01.02.1994
Date of Reserving Order : 31.07.2025
Date of decision : 12.08.2025
JUDGMENT
1. Vide this common judgment, I shall dispose of two separate suits detailed above which were consolidated vide order dated 18.08.2006 passed by the Ld. Predecessor of this Court.
CS DJ NO. 11321/2016 Sarwan Kumar vs Jai Gopal CS DJ NO 11320/16 Har Bai vs Jai Gopal Page no.4/49
2. The initial suit bearing suit No. 1607/1992 (New No. CS DJ 11321/2016) was filed before Hon'ble High Court of Delhi by two plaintiffs namely Sarwan Kumar and Har Bai against Defendant Jai Gopal seeking the relief of declaration, injunction and damages. During the course of proceedings, plaintiff No. 2 Smt. Har Bai expired and her LRs were impleaded vide order dated 08.05.1996. Defendant Jai Gopal also expired during the pendency of the suit and his LRs were brought on record vide order dated 29.03.2023.
3. The second suit bearing No. 252/1994 (New No. CS DJ 11320/2016) was filed in the year 1994 by Smt. Har Bai against defendant Jai Gopal seeking the reliefs of dissolution of partnership firm M/s Ram Richhpal Jai Gopal w.e.f. 08.02.1992 and the rendition of accounts of the said business. After demise of plaintiff Har Bai, her LRs were also impleaded in this case vide order dated 30.08.1995. Defendant Jai Gopal also expired during the pendency of the suit and his LRs were brought on record vide order dated 29.03.2023.
FACTS OF THE CASE:
CS NO. 11321/16SARWAN KUMAR & Anr. Vs JAI GOPAL.
PLAINTIFF'S CASE:
4. The plaintiffs Sarwan Kumar and his mother Har Bai filed the CS DJ NO. 11321/2016 Sarwan Kumar vs Jai Gopal CS DJ NO 11320/16 Har Bai vs Jai Gopal Page no.5/49 present suit against one Jai Gopal, who was the son of Sh. Bal Kishan Dass (i.e. father of plaintiff No. 1 and husband of plaintiff No. 2) from his first wife. It is alleged that the defendant was given in adoption at an early age to brother of late Sh. Bal Kishan Dass namely Sh. Laxmi Narayan. Sh. Laxmi Narayan expired on 01.10.1975 while Sh. Bal Kishan Dass expired on 08.02.1992. During their lifetime, Sh. Bal Kishan Dass and Shri Laxmi Narayan had taken property No. 36, Gadodia Market, Khari Baoli, Delhi-6 (hereinafter referred to as the suit property) on rent. The suit property on the ground floor compromised of a shop having carpet area of about 22'x16' 8 inches with covered verandah in front admeasuring 6' 8 inches x 9' and a phad (open land) in front of the covered varendah admeasuring 16' 8 inches x 10'. Sh. Bal Kishan Dass and Laxmi Narayan had started a business under the name and style of M/s Ram Richhpal Jai Gopal as a partnership firm.
5. Later on, the suit property was purchased by the parties to the suit in two equal parts vide registered Sale Deeds dated 30.12.1974. Half portion of the suit property falling on the southern side and identified with private number 36A was purchased in the name of the defendant Jai Gopal. The other half portion of the suit property marked with private number 36B, falling on the northern side was purchased in the name of Plaintiff No.1 Sarwan Kumar and his brother Sh. Bhagwan Dass vide registered sale deed dated 30.12.1974. Sh. Bhagwan Dass transferred his ownership rights in the property in favour of plaintiff No.2 Har Bai vide registered Sale Deed dated 05.05.1986. The purchases were made out of the personal funds of the parties. CS DJ NO. 11321/2016 Sarwan Kumar vs Jai Gopal CS DJ NO 11320/16 Har Bai vs Jai Gopal Page no.6/49
6. Parties carrying on business had surrendered the tenancy rights in the suit property in favour of the purchasers in respect of their respectively purchased portion of the property. However, the property continued to be used for carrying on the business of the partnership firm. No rent was paid by the partnership firm or received by either of the owners of the suit property after purchase of the property from M/S L.N Gadodia and Sons Pvt. Ltd. After purchase of the property in the year 1974, a wall was constructed and property No. 36A (owned by defendant) was used as Gaddi for the business while property marked as 36B (owned jointly by the plaintiffs) was used as godown for the business. The varendah and phad portion in the suit property were not partitioned.
7. The partnership firm carried on business lastly vide Partnership Deed dated 23.06.1982, whereunder Sh. Bal Kishan Dass (since deceased) and defendant were the only two partners. Business was closed in the year 1988 because of the differences between the partners. The defendant maintained all the books of the partnership firm and claimed heavy losses in the business. No business was carried on thereafter. In Jan 1989, the plaintiffs and the defendant extended portion wall in the suit property, so as to demarcate their respective properties through the entire length of the property. Both the owners locked their respective portions in the suit property.
8. In December 1988, the members of the Kiryana Committee CS DJ NO. 11321/2016 Sarwan Kumar vs Jai Gopal CS DJ NO 11320/16 Har Bai vs Jai Gopal Page no.7/49 (Reg.) of Delhi were approached by the partners of M/s Ram Richhpal Jai Gopal for settling trade liabilities. A committee consisting of Sh. Vijay Kumar, the then President; Sh. Siri Gopal Aggarwal, Executive Secretary and Sh. Rameshwar Dayal, Executive Member was constituted for the purpose. However, no proceedings were undertaken by the committee due to demise of Sh. Rameshwar Dayal and resignation of Sh. Sri Gopal Aggarwal. In Oct 1990, on representation of the parties to the suit, keys of both the properties that are property No. 36A and 36B were returned to the parties. Plaintiffs were handed over the keys of property No. 36B while defendant was handed over the keys of property No. 36A. It was also acknowledged that the properties were not in the tenancy of the closed partnership firm and the firm was merely using the property.
9. Thereafter, the plaintiffs carried on repairs and construction in their property No. 36B for commencing their independent business. In first week of Dec 1990, defendant threatened the plaintiffs to cause obstruction in use, possession and enjoyment of property No. 36B. Defendant colluded with local Police and filed false and frivolous complaints against the plaintiffs. After demise of Sh. Bal Kishan Dass on 08.02.1992, the defendant started causing interference and obstruction in use, possession and enjoyment of property No. 36B by the plaintiffs by claiming himself as a sole proprietor of business M/s Ram Richhpal Jai Gopal. Defendant also started alleging tenancy rights of the said firm in property No. 36B owned by the plaintiffs. While CS DJ NO. 11321/2016 Sarwan Kumar vs Jai Gopal CS DJ NO 11320/16 Har Bai vs Jai Gopal Page no.8/49 claiming so, defendant also claimed absolute ownership rights in property No. 36A and did not claim any tenancy rights of the firm in property No. 36A, though carrying of the business of the firm from the entire suit property was admitted. The denial of plaintiffs legal rights to use, possess and enjoy their owned property bearing No. 36B to the exclusion of the defendant or claims of closed business of M/S Richhpal Jai Gopal came to surface when defendant, in collusion with local Police, arranged to have proceedings under Section 145 Cr.PC initiated and served upon plaintiff No. 1 through Court of Ld. Executive Magistrate, Delhi. Plaintiff No.1 appeared before the said Court in March 1992, when defendant's statement dated 09.03.1992 was received by the plaintiff.
10. It is also averred that the plaintiffs have been denied commercial utilization of their property since Dec 1990 by the defendant in a wholly illegal and arbitrary manner causing huge loss to the plaintiffs. The property of the plaintiffs is capable of yielding a monthly rent of Rs. 30,000/-. Accordingly, the plaintiffs have sustained a loss of Rs. 5,10,000/- for a period of 17 months before the filing of the suit. Thus, recovery of the said amount has been sought alongwith interest.
11. In view of the threatened actions of the defendant to claim interest in plaintiff's property by way of alleged tenancy rights and interfering in the peaceful use, enjoyment and possession of the plaintiffs over their property No. 36B, the plaintiffs filed the present suit seeking the following reliefs:
CS DJ NO. 11321/2016 Sarwan Kumar vs Jai Gopal CS DJ NO 11320/16 Har Bai vs Jai Gopal Page no.9/49
a) A decree for declaration that the suit property consisting of parts 36A and 36B is the absolute property of the parties to the suit with plaintiffs being the owner and in possession of property i.e. part called 36B while defendant being the owner of part called 36A.
b) A decree of declaration to the effect that the suit property No.36 consisting of parts 36A and 36B are not a part of tenancy of firm M/s Ram Richhpal Jai Gopal (already dissolved with effect from 08.02.1992) and defendant is not entitled to allege so in respect of plaintiffs property bearing part No. 36 B.
c) A decree of declaration that the plaintiffs are entitled to use, possess, enjoy and commercialize their property called 36B in any manner they like to the exclusion of defendant or any other person acting on his behalf.
d) A decree of perpetual injunction by way of consequential relief thereby restraining defendant from claiming or enforcing any lien on plaintiff's property bearing No. 36B and interfering/ obstructing in the use, possession and enjoyment of the property by the plaintiffs.
e) A money decree to the tune of Rs. 5,10,000/- against the defendant towards recovery of damages alongwith pendente lite CS DJ NO. 11321/2016 Sarwan Kumar vs Jai Gopal CS DJ NO 11320/16 Har Bai vs Jai Gopal Page no.10/49 and future interest at the rate of 18 % per annum.
DEFENDANT'S CASE:
12. Defendant Jai Gopal filed his Written Statement wherein the suit was preliminarily objected to on the ground that the suit as framed and on a meaningful reading failed to disclose any clear right to sue and was, thus, liable to be rejected under Order 7 Rule 11 CPC as the cause of action was imaginary. The plaintiffs have not come to the Court with clean hands and have suppressed material facts from the Court including the fact that the tenancy of the defendants' firm M/s Richhpal Jai Gopal in respect of suit premises was never surrendered at any point of time to the plaintiffs or to previous landlords nor the same was terminated by any of the owners/landlords. The keys of the suit premises were never handed over to the plaintiffs by the defendant or by Kiryana Committee entrusted with the keys during the arbitration proceedings between the partners of the firm i.e. defendant and late Sh. Bal Kishan Dass. The plaintiffs have never been in possession of the suit premises at any point of time. It is alleged that plaintiffs have also concealed the fact that plaintiff No. 1 had been appearing before Ld. SDM, Kotwali in the proceedings under Section 145 Cr.PC w.e.f. 17.12.1990. The suit is alleged to be barred by Section 50 of Delhi Rent Control Act as their exists a relationship of landlord and tenant between the parties in respect of the suit premises.
13. On merits, it is denied that the defendant was given in adoption to Sh. Laxmi Narayan. Rather it is submitted that defendant is the son of CS DJ NO. 11321/2016 Sarwan Kumar vs Jai Gopal CS DJ NO 11320/16 Har Bai vs Jai Gopal Page no.11/49 Laxmi Narayan who was elder brother of late Sh. Bal Kishan Dass. It is admitted that plaintiff No. 1 is the son and plaintiff No. 2 is the widow of late Sh. Bal Kishan Dass. Demise of Sh. Laxmi Narayan in 1975 and that of Sh. Bal Kishan Dass in 1992 is also admitted. The site plan annexed with the suit has been disputed. It is alleged that the suit property was taken on rent by late Sh. Laxmi Narayan, who had started business under the name and style of M/s Ram Richhpal Jai Gopal alongwith three other partners namely Sh. Badri Prasad, Sh. Nanda Mal and Sh. Bal Kishan Dass. Sh. Badri Prasad and Sh. Nanda Mal retired from the said partnership in the year 1948 and thereafter the business was carried on by other two partners. On 10.07.1967, the defendant and Sh. Bhagwan Dass, elder brother of plaintiff No. 1 were also taken as partners in the firm. After demise of Sh. Laxmi Narayan in 1975, the firm was re-constituted by its remaining partners and after reconstitution defendant became partner for 50% share, while Sh. Bal Kishan Dass and his son Sh. Bhagwan Dass got 25 % share each. Sh. Bhagwan Dass retired from the partnership on 22.06.1982 and the firm was again re-constituted with defendant Jai Gopal and Sh. Bal Kishan Dass as equal partners.
14. It is admitted that half of the property No. 36 bearing private number 36B was purchased by Sh. Bhagwan Dass and plaintiff No. 1, but it is stated that the said purchase was made from the funds of the firm. It is also stated that other half portion of the suit property identified as private number 36A was purchased by defendant out of his personal funds. It is admitted that Sh. Bhagwan Dass transferred his undivided half share in the CS DJ NO. 11321/2016 Sarwan Kumar vs Jai Gopal CS DJ NO 11320/16 Har Bai vs Jai Gopal Page no.12/49 property No. 36B in favour of plaintiff No. 2 vide sale deed dated 05.05.1986. It is alleged that the said transfer was got done by Sh. Bal Kishan Dass in order to secure huge loans and borrowings made by Sh. Bhagwan Dass from the firm through his father Bal Kishan Dass and secondly because of the apprehension of the property being taken away by way of attachment by the creditors of Sh. Bhagwan Dass, who was running a business at Saharanpur at that time and had closed the same without clearing of payments due to the creditors.
15. It has been categorically denied that the tenancy rights in the property were surrendered or given up in favour of the any of the owners or landlords including the plaintiffs. It is alleged that the property has continued to be under tenancy of the firm M/s Ram Richhpal Jai Gopal. It is specifically pleaded that the plaintiffs were never in possession of the suit property. In the year 1988, the defendant took over the entire charge of the shop premises after coming to know that the business was under heavy debts and pending the resolution of the disputes between the defendant and his partner Sh. Bal Kishan Dass before the Kiryana Committee. It is submitted that defendant has been in exclusive possession of the entire suit property since 23.06.1982. All the other allegations and averments made in the plaint have been specifically denied. Proceedings before Ld. SDM under Section 145 Cr.P.C. have been admitted. With these contentions, claims of the plaintiffs have been disputed and dismissal of the suit is prayed.
CS DJ NO. 11321/2016 Sarwan Kumar vs Jai Gopal CS DJ NO 11320/16 Har Bai vs Jai Gopal Page no.13/49 REPLICATION
16. A joint replication was filed by the plaintiffs to the Written Statement filed by the defendant wherein the contents and averments made in the plaint were reiterated and the averments made in the Written Statement were specifically denied except the admissions made by the defendant. It was specifically reiterated that after the purchase of property bearing private no. 36A in the name of defendant Jai Gopal and property bearing private no. 36 B in the name of plaintiff no. 1 Sarwan Kumar and his brother Bhagwan Dass, the same was never let out to the firm M/s. Ram Richhpal Jai Gopal however, the property continued to be used as a business place for the firm M/s. Ram Richhpal Jai Gopal.
CS NO. 11320/2016HAR BAI VS JAI GOPAL PLAINTIFF'S CASE
17. Plaintiff Har Bai Devi filed the present suit in the year 1994 after filing of Written Statement in the connected suit filed by the defendant. The suit was filed seeking dissolution of the partnership firm M/s. Ram Richhpal Jai Gopal as well as rendition of accounts against the defendant Jai Gopal.
18. It is alleged in the plaint that partnership firm M/s. Ram Richhpal Jai Gopal was constituted by Sh. Bal Kishan Dass and Sh. Jai Gopal vide partnership dated 23.06.1982 to carry on the business of purchase and sale of Kiryana goods, dry fruits and chemicals from premises CS DJ NO. 11321/2016 Sarwan Kumar vs Jai Gopal CS DJ NO 11320/16 Har Bai vs Jai Gopal Page no.14/49 bearing no. 36, Gadodia Market, Khari Baoli, Delhi-06. One of the partners Sh. Bal Kishan Dass expired on 08.02.1992. Plaintiff, being the wife of late Sh. Bal Kishan Dass, is his successor in interest of the partnership firm and have been authorized by other legal heirs of Late Sh. Bal Kishan Dass to represent the estate of the deceased partner.
19. As a result of dispute between the partners, the business of the partnership firm was closed in May, 1988. Defendant Jai Gopal was in possession of accounts books of the said business as he was looking after the business of the partnership and dealing with income tax and sales tax assessment of the firm. The stocks and credits of the business were taken over by the defendant for settling the accounts but he did not settle the accounts during the lifetime of late Sh. Bal Kishan Dass.
20. It is alleged that the partnership firm held various tenanted premises which were used as godowns for the firms business which included property no.1212/III, Gali Samosan, Naya Bans, Khari Baoli, Delhi admeasuring about 16'x16' on the ground floor; property bearing no.1104/VI, Gali Samosan, Naya Bans, Khari Baoli, Delhi admeasuring about 8'x15' on the ground floor and property bearing no.73, Gali Mem Wali, Katra Baryan, Fatehpuri, Delhi admeasuring 12'x 9' on the first floor (hereinafter referred to as the tenanted properties). All the tenancies were created in favour of the partnership firm about 40-50 years back on a nominal rent. The business of the partnership firm was carried from property bearing no. 36, Gadodia Market, Khari Baoli, CS DJ NO. 11321/2016 Sarwan Kumar vs Jai Gopal CS DJ NO 11320/16 Har Bai vs Jai Gopal Page no.15/49 Delhi-06 consisting of two portions bearing private no. 36A and 36B. The Gaddi of the business was established in property no. 36A while property no. 36B was used as godown. These properties were not asset of the partnership firm nor any rent was paid in respect of the said properties. Both the partners had equal share in the partnership firm and the capital invested by them carried interest @ 15 per cent per annum. Under the terms and conditions of the partnership, profit or loss of partnership business was to be shared equally between both the partners.
21. Since there were only two partners in the firm, the partnership came to be dissolved by operation of law after the demise of one of the partners on 08.02.1992. Legal heirs of deceased Late Bal Kishan Dass did not elect to join the partnership business with the defendant.
22. Accordingly, the plaintiff filed the present suit being the legal heir of late Sh. Bal Kishan Dass seeking following prayers:
(a) To declare the partnership business called M/s. Ram Richhpal Jai Gopal as dissolved w.e.f. 08.02.1992.
(b) To pass decree for accounts in favour of the plaintiff and against the defendant in terms of Order 20 Rule 15 by passing preliminary decree declaring proportionate shares of parties and directing such accounts to be taken, followed by final decree in terms of report under preliminary decree.
(c) To pass such other or further orders as deemed just, fit and CS DJ NO. 11321/2016 Sarwan Kumar vs Jai Gopal CS DJ NO 11320/16 Har Bai vs Jai Gopal Page no.16/49 proper in the circumstances of the case.
DEFENDANT'S CASE:-
23. Defendant Jai Gopal filed a Written Statement wherein the suit was preliminarily objected to on the ground of being barred by limitation. It was alleged that due to disputes/differences between the partners, the partnership business was closed in May, 1988 whereas the suit filed was in January, 1994. Locus standi of the plaintiff to file the suit was also challenged. It was also alleged that the plaintiff has suppressed material facts from the Court. There are no averments in the plaint that plaintiff continued to be in possession of which of the property and assets related to the business of the partnership firm. It is concealed that the plaintiff has been carrying on a prosperous business of fabrication of ready made garments in portion of property no. 2101, Katra Tambacoo, Khari Baoli, Delhi and are using portion of the said property themselves. The plaintiff is liable to render accounts of the business being carried out by her in the said property of the partnership firm.
24. On merits, it is admitted that Sh. Laxmi Naryana, f/o the defendant Jai Gopal had established a firm by the name of M/s. Ram Richhpal Jai Gopal in the year 1940. Later on, Nanda Mal, Badri Prasad and Bal Kishan Dass joined as partners in the firm. In the year 1948, two partners namely Nanda Mal and Badri Prasad retired and remaining two partners namely Laxmi Narayan and Bal Kishan Dass continued the partnership firm. In 1967, defendant Jai Gopal and Bhagwan Dass CS DJ NO. 11321/2016 Sarwan Kumar vs Jai Gopal CS DJ NO 11320/16 Har Bai vs Jai Gopal Page no.17/49 s/o Bal Kishan Dass joined the partnership firm as equal partners. In 1975, Sh. Laxmi Narayan retired and his share came to defendant Jai Gopal. Later on, in 1982, Bhagwan Dass also retired and w.e.f. 23.06.1982, Sh. Bal Kishan Dass and Sh. Jai Gopal continued as partners of the firm with equal shares in profit and loss. Demise of Sh. Bal Kishan Dass on 08.02.1992 is admitted. It is also admitted that partnership firm came to an end with death of Sh. Bal Kishan Dass.
25. It is averred that Late Sh. Bal Kishan Dass had misconducted and worked to the detriment of the partnership business in various ways and consequently by May 1988 the business of the partnership firm had deteriorated and paralyzed, but the necessary dealings were made till the time the shop was locked by the Kirana Committee in April 1989. It is denied that plaintiff Smt. Har Bai was successor in interest of Late Sh. Bal Kishan Dass or was authorized by other legal heirs to file the suit. It is denied that the defendant was in possession of the accounts books of the business except for those which were produced and shown to the local commissioner appointed by the Court. It is also denied that the defendant alone was looking after the accounts of the partnership firm or its income tax and sales tax assessment. It is also denied that all the stocks and credits of the business were taken over by the defendant as alleged. Rather it is stated that Sh. Bal Kishan Dass was in charge of day to day working of the firm and was handling all the main affairs and cash of the firm being the senior partner and real uncle of defendant Jai Gopal. Each and every matter dealt with by the defendant was with consent and under knowledge of Sh. Bal Kishan Dass who was alone CS DJ NO. 11321/2016 Sarwan Kumar vs Jai Gopal CS DJ NO 11320/16 Har Bai vs Jai Gopal Page no.18/49 the accounting partner of the firm.
26. It is further alleged that in April/May 1988, defendant came to know from Sh. Bal Kishan Dass about the dealings and bad position of the partnership firm. Sh. Bhagwan Dass, S/o Bal Kishan Dass was in the same line of business. Due to the old age of Bal Kishan Dass, he used to take help from his son Sarwan Kumar in the business transactions. Sarwan Kumar, in connivance with Sh. Bal Kishan Dass, took advantage of the excellent reputation of the partnership firm for his own benefits and those of his brother Bhagwan Dass and caused irreparable loss to the business of the partnership firm. Sarwan Kumar had been issuing receipts, acknowledging liabilities and taking loans on behalf of the partnership firm after signing as a partner. Both Bhagwan Dass and Sarwan Kumar suffered losses in their personal businesses. Sh. Bal Kishan Dass transferred his property in the name of his wife Smt. Har Bai so as to save the same from liabilities. Bhagwan Dass was also disowned by Sh. Bal Kishan Dass and his wife by public notice in newspaper.
27. Sh. Bal Kishan Dass, under pressure from his son Sarwan Kumar, continued causing loss to the firm and avoided rendering the accounts of the firm despite repeated requests from defendant to cover-up manipulations and misappropriations of assets and stocks of the firm. Several loans were taken in the name of the firm and several recovery suits were also filed against the firm. There was also a huge outstanding CS DJ NO. 11321/2016 Sarwan Kumar vs Jai Gopal CS DJ NO 11320/16 Har Bai vs Jai Gopal Page no.19/49 sales tax liability against the firm. Sh. Bal Kishan Dass gave false promises to the defendant to settle the matter and efforts by common well wishers for settlement also went in vain. One case under Section 145 Cr.P.C. was filed by the defendant in the Court of SDM (Kotvali) in 1990-92 for protection of the shop in tenancy of the firm as Sarwan Kumar had made several attempts to forcibly occupy the shop with the help of anti-social elements.
28. It is alleged that the suit has been filed as a counter attack to the defence taken by the defendant in the earlier suit of the plaintiff seeking declaration, injunction and damages filed by Sarwan Kumar and Har Bai.
29. As regards the alleged tenanted premises, it is stated that property no. 1212 was surrendered by Sh. Bal Kishan Dass during his lifetime after charging huge pagadi money without consent and knowledge of the defendant. Similarly, godown at Katra Maidgaran, Khari Baoli was also surrendered. Property no. 1104 and 73 are in possession of the defendant but they are lying locked as they are unusable. It is alleged that plaintiff has deliberately not disclosed about the prime property bearing no. 2100-2101, Katra, Tambacoo, Khari Baoli which Sh. Laxmi Narayan had taken on rent as proprietor and where plaintiff is residing on first and second floor and doing business from the premises. It is stated that the tenanted premises were taken on rent about 56 years back by Sh. Laxmi Narayan, father of the defendant when he was the CS DJ NO. 11321/2016 Sarwan Kumar vs Jai Gopal CS DJ NO 11320/16 Har Bai vs Jai Gopal Page no.20/49 proprietor of the firm except for property no.73.
30. It is stated that the property no. 36 Gadodia Market (later on divided into 36A and 36B ) was also taken on rent by Sh. Laxmi Naryana in the name of the proprietorship firm. Accordingly, defendant alone was entitled to the tenancy rights in the said property. With these contentions the suit of the plaintiff has been reverted and dismissal of the same is sought.
REPLICATION
31. Despite opportunity, no replication was filed by the plaintiff.
INTERIM ORDERS
32. After filing of the suit, vide order dated 08.02.1994 a local commissioner was appointed to inspect the books of accounts found at the premises of the defendant and sign the same. The commission could not be executed due to demise of the plaintiff. After impleading the LRs of the plaintiff, vide order dated 14.12.1995, again the local commissioner was appointed to inspect the residence of the defendant as well as office of the partnership firm at 36, Gadodia Market, for making inventory of, inspecting and signing the books of accounts of the partnership firm. The commission was executed and report in this regard dated 22.04.1996 was filed by Ld. Local Commissioner Sh. Sanjeev Chalwal.
CS DJ NO. 11321/2016 Sarwan Kumar vs Jai Gopal CS DJ NO 11320/16 Har Bai vs Jai Gopal Page no.21/49 CONSOLIDATION OF SUITS
33. Vide order dated 18.08.2006 both the above detailed suits were consolidated being interlinked.
ISSUES:-
34. After completion of pleadings in both the suits, vide order dated 18.08.2006, joint issues were framed for trial in both the suits. Subsequently two additional issues were framed vide order dated 07.07.2008. Joint issues as framed including the additional issues are as under:-
(I) Whether property bearing private no. 36, Gadodia Market, Khari Baoli, Delhi consisting of 36A and 36B is the absolute property of the parties with the plaintiff as owner in possession of the property no. 36B as shown in colour blue and the defendant as the absolute owner of property no. 36A as shown in yellow colour in the plan annexed with schedule A to the plaint and not as the property of the firm? (onus on the parties) (II) Whether the firm Ram Richpal Jai Gopal used property bearing private no. 36, Gadodia Market, Khari Baoli, Delhi comprising of portions marked 36A and 36B as a tenant by paying any rent after purchase by respective plaintiffs and defendant, if so, the effect thereof on the parties?(onus to the parties) CS DJ NO. 11321/2016 Sarwan Kumar vs Jai Gopal CS DJ NO 11320/16 Har Bai vs Jai Gopal Page no.22/49 (III) Whether the keys of possession of shop premises no.
36A and 36B, Gadodia Market, Khari Baoli, Delhi were not handed over by parties to the Kiryana Committee, for settling trade liabilities relating to winding up and dissolution of above firm arose?(onus to the parties) (IV) Whether the defendant gained forcible and unlawful possession of both portions 36A and 36B of private property no. 36, Gadodia Market, Khari Baoli, Delhi in violation of orders of injuction passed, if so to what consequences?(OPP) (V) Whether the plaintiff is entitled to declaration and injunctions as prayed?(OPP) (VI) From which date the partnership business called M/s Ram Richpal Jai Gopal is liable to be declared as dissolved and what relief in regard to accounts is liable to be passed in favour of the parties to the suit?(OPP) (VII) What accounts are liable to be considered for dissolution of the partnership business called M/s Ram Richpal Jai Gopal?(onus to the parties) (VIII) Whether the plaintiffs have no locus standi to file CS CS DJ NO. 11321/2016 Sarwan Kumar vs Jai Gopal CS DJ NO 11320/16 Har Bai vs Jai Gopal Page no.23/49 (OS) no. 252/1994?(OPD) (IX) Whether the suit CS(OS) no. 252/1994 is without cause of action?(OPD) (X) Relief.
(XI) Whether the entire premises consisting of 36 A and 36 B, Gadodia Market, Delhi was and is under the tenancy of the firm and continued even after the purchase of the respective shops by the parties and their heirs? (OPD) (XII) Whether the tenancy rights in the premises was surrendered? If so, when? (OPD) PLAINTIFF'S EVIDENCE:-
35. In order to prove his case, plaintiff Sarwan Kumar examined himself as PW-1 and stated and reiterated on oath the contents of the plaint in his examination-in-chief recorded before the Court vide his affidavit Ex.PW-1/A. He relied upon the following documents:-
(i) Ex.P1: Power of attorney dated 10.04.1992 executed by LRs of plaintiff no. 2 Smt. Harbai namely Smt. Narbada Devi, Smt. Shakuntala Devi, Smt. Shashi Kanta and Smt. Santosh Rani in favour of Sarwan Kumar authorizing him to represent them in the CS DJ NO. 11321/2016 Sarwan Kumar vs Jai Gopal CS DJ NO 11320/16 Har Bai vs Jai Gopal Page no.24/49 suits.
(ii) Ex.P3: Letter dated 20.12.1998 written to Kirana Committee by partners of the firm M/s Ram Richhpal Jai Gopal requesting settlement of disputes.
(iii) Ex.P4: Site plan of the suit property.
36. This witness was duly cross examined on behalf of the defendant.
37. No other witness was examined by the plaintiffs.
DEFENDANT'S EVIDENCE:
38. Sh. Vinay Aggarwal, LR of deceased defendant, examined himself as DW-1 by way of his evidence affidavit Ex.DW-1/A and stated and reiterated on oath the contents of the Written Statement filed by his father. He also deposed that the tenancy of the defendants in respect of the suit premises, originally created in favour of M/s Ram Richhpal Jai Gopal was never surrendered by the defendants either to the plaintiff or to any of the prior landlords. There has been no termination of the said tenancy at any time by any means known to law. The defendants or any representative body such as the Kirana Committee involved during arbitration proceedings among the partners of the firm, never handed over possession or keys of the suit premises to the plaintiffs and plaintiffs have never been in possession thereof. The suit is barred u/s 50 of DRC as the relationship of landlord and tenant exist between the parties in respect of the suit premises. It is also CS DJ NO. 11321/2016 Sarwan Kumar vs Jai Gopal CS DJ NO 11320/16 Har Bai vs Jai Gopal Page no.25/49 deposed that plaintiff Sarwan Kumar had diverted the assets of the firm for his individual gains and has also been manipulating the stock records of the firm. The ledgers reflect discrepancies including shortages and missing entries in the stock which suggest that the plaintiff Sarwan Kumar had misappropriated the stock of the firm for his personal benefit thereby causing financial loss to the firm. He further deposed that half portion of property no. 36 identified as Pvt no. 36 B was purchased jointly by Bhagwan Dass and plaintiff no.1 out of firm's funds but the other half portion i.e private no. 36A was purchased by his father i.e the defendant Jai Gopal from his own funds. He also deposed that after death of Sh. Balkishan Dass on 08.02.1992, defendant Jai Gopal as the sole surviving partner became the partner of the firm Ram Richhpal Jai Gopal and continued the business and continued to be in possession of the entire property no. 36 as a tenant. He relied upon the following documents :
i) The Copy of partnership deed is exhibited as Ex.DW-1/1 (page No. 1 to 3)
ii) The Copy of three stock ledgers (in original) for the year 1980 to 1984 is exhibited as Ex.DW-1/2 (Page No. 4 to 103).
iii) Copy of sale deed dated 05.05.1986 in favour of Smt. Har Bai Devi executed by Bhagwan Dasss, Ref. Property no.36B, Gadodia Market, Delhi is exhibited as Ex.DW-1/3 (Page No. 104 to 112).
iv) Original carbon copy of agreement between landlord and defendant as partner dated 01.05.1969 with English translation is exhibited as Ex.DW-1/4 (Page No. 113 to 114).
CS DJ NO. 11321/2016 Sarwan Kumar vs Jai Gopal CS DJ NO 11320/16 Har Bai vs Jai Gopal Page no.26/49
v) Original rent receipt no.26 for period of 29.12.1980 to 30.04.198 is exhibited as EX.DW-1/5 (Page No. 115)
vi) Original electricity bill dated 09.03.1988 regarding property is exhibited as Ex.DW-1/6 (Page No. 116).
vii) Letter dated 22.02.1986 by Sarwan Kumar with translation is exhibited as Ex.DW-1/7 (Page No. 117 to 118).
viii) Original notice dated 17.07.1987 is exhibited as Ex.DW-1/ 8 (from page NO. 119 to 120).
ix) Two Court notices 09.03.1988 is exhibited as Ex.DW-1/9 (from page No. 121 to 122).
x) Photocopy of hand written document written by Sarwan Kumar with English translation is exhibited as Ex.DW-1/10 (from page No. 123 to 124).
xi) Original letters from Kirana committee Delhi dated 27.10.1988, 03.12.1988 & 19.12.1988 with English translation is exhibited as Ex.DW-1/11 (from page NO. 125 to 130).
xii) Copy of Punchnama dated 20.12.1988 with English translation is exhibited as Ex.DW-1/12 (Page No. 131 to 132).
xiii) Copy of order pronounced by Arbitrator on 17.06.1989 with English translation is exhibited as Ex.DW-1/13 (Page No. 133 to
136).
(xiv) Copy of medical certificate dated 30.09.1989 of defendant is exhibited as Ex.DW-1/14 (Page No. 137).
(xv) Letter from Kirana committee to the defendant dated 16.10.1996 and envelop with English translation is exhibited as CS DJ NO. 11321/2016 Sarwan Kumar vs Jai Gopal CS DJ NO 11320/16 Har Bai vs Jai Gopal Page no.27/49 Ex.DW-1/15 (from page No. 138 to 139).
(xvi) Receipts issued for raising loans by Sarwan Kumar as partner from the market is exhibited as Ex. DW-1/16 Page No. 140 to 177. (xvii) Copy of sale deed of property no. 36A, Gadodia Market in favour of the defendant is earlier exhibitied as Ex. DW-1/17 (Page No. 178 to 184) (xviii) Site Plan is exhibited as Ex.DW-1/18 (Page No. 185). (xix) Copy of sale deed of property no. 36B, Gadodia Market in favour of Bhagwan Dass and Sarwan Kumar earlier exhibited as Ex.DW-1/19 (Page No. 186 to 192).
(xx) Site Plan is exhibited as Ex.DW-1/20 (Page No. 193). (xxi) Photo copy of letter of tenancy of 36, Gadodia Market, Delhi by Sh.Lakshmi Narain in favour of M/s Lakshmi Narain Ram Gopal earlier exhibited as Ex.DW-1/21 now marked as Mark A Page No. 194 to 195 . (xxii) Copy dissolution deed of Shri Lakshmi Narain dated 01.10.1975 is exhibited as Ex.DW-1/22 (Page No. 196 to 197) (document is admitted by the opposite side).
(xxiii) Copy of rent receipt of Bhagwan Dasss for 36B, Gadodia Market,dated 15.05.1986 earlier exhibited as Ex.DW-1/23 now marked as Mark B (Page No. 198).
(xxvi) Copy of request letter dated 20.12.1988 by Balkishan Dasss and Jaigopal to Kirana Committee is exhibited as Ex.DW-1/24 (Page No. 199)(document is admitted by the opposite side). (xxv) True English translation of above request letter dated 20.12.1988 is exhibited as Ex.DW-1/25 (Page No. 200).
CS DJ NO. 11321/2016 Sarwan Kumar vs Jai Gopal CS DJ NO 11320/16 Har Bai vs Jai Gopal Page no.28/49 (xxvi) Copy of public notice in newspaper, The Statesman dated 06.01.1990 earlier exhibited as Ex.DW-1/26 and now marked as Mark C (Page No. 201).
(xxvii) Copy of application to S.H.O. PS Lahorigate by the defendant dated 27.11 1990 earlier exhibited as Ex.DW-1/27 now marked as Mark D (Page No. 202 to 203).
(xxviii) Copy of the report dated 01.12.1990 earlier exhibited as Ex.DW-1/28 now marked as Mark E (Page No. 204).
(xxix) Copy of the application dated 03.12.1990 to the S.H.O earlier exhibited as Ex.DW-1/29 and now marked as Mark F (Page No.
205).
(xxx) True English Translation of the application is exhibited as Ex.DW-1/30 (Page No. 206).
(xxxi) Copy of written statement of defendant before SDM Kotwali dated 09.03.1992 is exhibited as Ex.DW-1/31 (Page No. 207 to 211) (The document is admitted).
(xxxii) Affidavit in support of the above WS is exhibited as Ex.DW-1/32 (Page No. 212) (The document is admitted) . (xxxiii) Copy of the application dated 04.08.1992 to S.H.O. PS Lahori Gate, by the Defendant earlier exhibited as Ex.DW-1/33 and now marked as Mark F (Page No. 213).
(xxxiv) True English Translation of above is exhibited as Ex. DW-1/34 (Page No. 214).
(xxxv) Copy of the Application under Section 310 of the Cr PC for local inspection before the Court of SDM by the defendant dated CS DJ NO. 11321/2016 Sarwan Kumar vs Jai Gopal CS DJ NO 11320/16 Har Bai vs Jai Gopal Page no.29/49 10.08.1992 is exhibited as Ex.DW-1/35 (Page No. 215 to 217). (xxxvi) Copy of complaint dated 20.10.1993 to the. DCP (North) Delhi Police by the defendant earlier exhibited as Ex.DW-1/36 now marked as Mark G (Page No. 218).
(xxxvii) Copy of the postal registration receipt no.714-715 & 716 dated 20.10.1993 for the above complaint earlier exhibited as Ex.DW-1/37 now marked as Mark H (Page No. 219).
(xxxviii) Copy of the acknowledgment dated 20.10.1993 earlier exhibited as Ex.DW-1/38 and marked as Mark I (Page No. 220 to
223).
(xxxix) Copy of the order of the SDM Kotwali is exhibited as Ex.DW-1/39 (The document is admitted by the plaintiff) (Page No. 224 to 230).
(xxxx) 6 original receipts issued for raising loans by Sarwan Kumar is exhibited as Ex. DW-1/40 (Total pages 5) .
(xxxxi) Original hand written document written by Sarwan Kumar is exhibited as Ex. DW-1/41 (Total pages 02).
(xxxxii) Sale slips of the sale made by Sarwan Kumar out of the account of the firm with English translation is exhibited as Ex. DW-1/42 (total pages ).
39. DW-1 was duly cross-examined on behalf of the plaintiff.
40. No other witness was examined on behalf of the defendant.
CS DJ NO. 11321/2016 Sarwan Kumar vs Jai Gopal CS DJ NO 11320/16 Har Bai vs Jai Gopal Page no.30/49 ISSUE WISE FINDINGS:
41. I have heard the final arguments on behalf of both the parties and carefully perused the record. Written Submissions are also carefully perused.
42. Now, I shall proceed to give my issue wise findings.
ISSUE NO.1, 2, 11 AND 12 :
(I) Whether property bearing private no. 36, Gadodia Market, Khari Baoli, Delhi consisting of 36A and 36B is the absolute property of the parties with the plaintiff as owner in possession of the property no. 36B as shown in colour blue and the defendant as the absolute owner of property no. 36A as shown in yellow colour in the plan annexed with schedule A to the plaint and not as the property of the firm? (onus on the parties) (II) Whether the firm Ram Richhpal Jai Gopal used property bearing private no. 36, Gadodia Market, Khari Baoli, Delhi comprising of portions marked 36A and 36B as a tenant by paying any rent after purchase by respective plaintiffs and defendant, if so, the effect thereof on the parties?(onus to the parties) (XI) Whether the entire premises consisting of 36 A and 36 B, Gadodia Market, Delhi was and is under the tenancy of the firm and continued even after the purchase of the respective shops by CS DJ NO. 11321/2016 Sarwan Kumar vs Jai Gopal CS DJ NO 11320/16 Har Bai vs Jai Gopal Page no.31/49 the parties and their heirs? (OPD) (XII) Whether the tenancy rights in the premises was surrendered? If so, when? (OPD)
43. I shall take up the above mentioned 4 issues together as they require similar appreciation of evidence. The basic question that requires answer for deciding these issues is whether the entire premises no.36 consisting of part 36A and 36B, Gadodia Market, Delhi was under the tenancy of the firm M/s Ram Richhpal Jai Gopal and if so, till when and whether the tenancy of the firm continued even after the purchase of the respective shops by the parties to the suit and their heirs.
44. It is pleaded by plaintiffs in paragraph no.3 of their plaint in CS DJ 11231/2016 titled as "Sarwan Kumar and Anr. Vs Jai Gopal" that the entire property no. 36 Gadodia Market, Khari Baoli was taken on rent by Sh. Bal Kishan Dass and Sh. Laxmi Narayan and business in the name and style of M/s Ram Richhpal Jai Gopal with Sh. Bal Kishan Dass and Laxmi Narayan as partners was carried on from the said premises. Per contra, it is pleaded by defendant Jai Gopal in paragraph no.2 of preliminarily objections as well as paragraph no.3 on merits of his Written Statement in the above suit that property no.36 was taken on rent by Sh. Laxmi Narayan alone and he started using the same under the name and style of M/s Ram Richhpal Jai Gopal.
45. Interestingly, none of the parties have pleaded or deposed about CS DJ NO. 11321/2016 Sarwan Kumar vs Jai Gopal CS DJ NO 11320/16 Har Bai vs Jai Gopal Page no.32/49 the date, month or year when the entire property no. 36 was taken on rent by their predecessors-in-interest. There is no rent agreement in this regard proved on record by either of the parties. Accordingly, there is no evidence on record to prove as to whether the entire property no. 36, Gadodia Market, Khari Baoli was taken on rent by the firm M/s Ram Richhpal Jai Gopal or jointly by Sh. Bal Kishan Dass (i.e the predecessor-in-interest of the plaintiffs Sarwan Kumar and Harbai) and Sh. Laxmi Narayan (i.e predecessor-in-interest of the defendant Jai Gopal). This is more so as the books of account of the firm M/s Ram Richhpal Jai Gopal do not show payment of any rent to the landlord by the firm.
46. However, it is an admitted fact that the business of the firm M/s Ram Richhpal Jai Gopal was carried on from the property no. 36 Gadodia Market, Khari Baoli, Delhi.
47. It is again an admitted case of the parties that property no.36, Gadodia Market, Khari Baoli was sold in two parts i.e 36-A and 36-B vide two separate Sale Deeds dated 30.12.1974. While private no.36 A was sold to defendant Jai Gopal vide Sale Deed (Ex. PW-1/17/Ex.D-1), private no. 36 B was sold to plaintiff no. 1 Sarwan Kumar and his brother Bhagwan Dass vide sale deed (Ex. PW-1/19/Ex.D-3). Both these sale deeds are admitted by both the parties. There is no dispute regarding execution of these sale deeds. Perusal of these Sale Deeds show that clauses 14 and 15 of the same clearly record that at the time CS DJ NO. 11321/2016 Sarwan Kumar vs Jai Gopal CS DJ NO 11320/16 Har Bai vs Jai Gopal Page no.33/49 of sale of the property no. 36 in parts, the same was under the tenancy of the firm M/s Ram Richhpal Jai Gopal. The relevant clauses are reproduced herein under for the sake of clarity.
" 14. That the property hereby sold is under the tenancy of M/s Ram Richhpal Jai Gopal on a monthly rental of Rs. 36.34 paise and the vendors shall be entitled to receive rent from the said tenants upto the date of execution and registration of the sale deeds.
15. That on registration of the sale deed, the possession of the property hereby sold will be delivered by the vendors to the vendee by informing the aforesaid tenants by registered post to attorn to the vendee".
48. It is also an admitted case of the parties that in the year 1986 vide Sale Deed dated 05.05.1986 (Ex.D-5), Sh. Bhagwan Dass (brother of Sarwan), a co-owner of property no.36-B had sold his undivided share in the property to his mother Smt. Har Bai. Perusal of the said Sale Deed also shows that in clause no.5, it was specifically mentioned that the property was under the tenancy of M/s Ram Richhpal Jai Gopal. The relevant clause in this regard is reproduced herein under :
"5. That the said property out of which the vendor's share hereby sold is under the tenancy of M/s Ram Richhpal Jai Gopal on a monthly rental of Rs.36.34 paisa and the vendor shall be entitled to receive rent of his half share from the said tenants up to the date of execution and registration of the Sale Deed."
49. The inclusion of these clauses in Sale Deeds (Ex. DW-1/17/Ex.D-1, Ex. DW-1/19/Ex.D-3 and Ex.D-5) which are relied upon and admitted by both the parties clearly show that at the time of sale of properties no.36-A and 36-B in the year 1974 and further sale of undivided share in property no.36-B in the year 1986, the said properties were under tenancy of the firm M/s Ram Richhpal Jai Gopal. CS DJ NO. 11321/2016 Sarwan Kumar vs Jai Gopal CS DJ NO 11320/16 Har Bai vs Jai Gopal Page no.34/49
50. Now, the plaintiff is claiming that the tenancy was surrendered by the firm after purchase of property no.36 in parts by the partners of the firm/their legal heirs i.e. on 30.12.1974. However, there is no written document regarding the alleged surrender of tenancy. The said averment of the plaintiff is also falsified from the Sale Deed (Ex.D-5) detailed above which is a Sale Deed executed by brother of the plaintiff Sarwan Kumar in favour of plaintiff no.2 Har Bai and witnessed by plaintiff Sarwan Kumar on 05.05.1986. This Sale Deed (Ex. D-5) is a clear admitted evidence that even till 05.05.1986, the properties were continuing under the tenancy of the firm M/s Ram Richhpal Jai Gopal. Whether or not any rent was being paid is a separate matter altogether.
51. Neither the plaintiff nor the defendant has come out with any specific date with effect from which the tenancy in the premises bearing no.36-A and 36-B was surrendered by the tenant i.e. firm M/s Ram Richhpal Jai Gopal. While plaintiff has failed to plead or prove any such date of surrender of tenancy, the defendant has specifically pleaded that properties continued under the tenancy of M/s Ram Richhpal Jai Gopal.
52. Defendant has also alleged that while property no.36A was purchased by him from his own funds, property no.36B was purchased by Sarwan Kumar/petitioner no.1 and Bhagwan Das from the funds of the partnership firm. However, no evidence has been led on record to prove the said averments. Considering the Sale Deed of property CS DJ NO. 11321/2016 Sarwan Kumar vs Jai Gopal CS DJ NO 11320/16 Har Bai vs Jai Gopal Page no.35/49 no.36A & 36B, this bald averment of the defendant without support of any evidence does not inspire the confidence of the court.
53. Considering the above discussion and evidence on record, it can safely be held that while Jai Gopal became the owner of the property bearing no.36-A on 30.12.1974 by way of a registered Sale Deed (Ex.D-1) executed in his favour by the erstwhile owner, Jai Gopal and Bhagwan Dass became the joint owners of the property bearing no.36-B with effect from the same date and on the basis of the similar documents (Ex.D-3). Property no.36-B further came to be jointly owned by Sarwan Kumar and Har Bai with effect from 05.05.1986 pursuant to sale of his undivided share of the property by Bhagwan Dass in favour of Har Bai vide Sale Deed (Ex.D-5). Thus, the plaintiffs in suit bearing no.11321/2016 titled as " Sarwan Kumar & Anr. Vs Jai Gopal" are entitled to a decree of ownership of property no.36-B, Gadodia Market, Khari Baoli, Delhi. They are also entitled to a decree to the effect that defendant Jai Gopal is the owner of the property no.36-A, Gadodia Market, Khari Baoli, Delhi.
54. However, on the basis of evidence, it cannot be held that the tenancy of the firm M/s Ram Richhpal Jai Gopal in properties no.36-A and 36-B (earlier joined property no.36), Gadodia Market, Khari Baoli, Delhi was ever surrendered to the respected owners/landlords.
55. As regard the possession of property no.36-B by the plaintiffs, since it is duly proved on record that plaintiffs are the owner of the CS DJ NO. 11321/2016 Sarwan Kumar vs Jai Gopal CS DJ NO 11320/16 Har Bai vs Jai Gopal Page no.36/49 property no.36-B which was in possession of the firm M/s Ram Richhpal Jai Gopal as a tenant, plaintiffs are deemed to be in constructive possession of property no.36-B through their tenant i.e. the firm M/s Ram Richhpal Jai Gopal.
56. In view of the reasons and findings given above, issues no.1, 2, 11 and 12 are decided holding that plaintiffs are absolute owner in constructive possession of the property no.36-B while defendant is absolute owner in constructive possession of property no.36-A. The entire property no.36, Gadodia Market, Khari Baoli, Delhi comprising of portions mark 36A and 36B was in possession and use of M/s Ram Richhpal Jai Gopal as a tenant. The tenancy was not surrendered after purchase of property in parts by the parties to the suit and is still continuing. These issues, are accordingly, decided.
ISSUE NO. 3 and 4 :
(III) Whether the keys of possession of shop premises no. 36A and 36B, Gadodia Market, Khari Baoli, Delhi were not handed over by parties to the Kiryana Committee, for settling trade liabilities relating to winding up and dissolution of above firm arose?(onus to the parties) (IV) Whether the defendant gained forcible and unlawful possession of both portions 36A and 36B of private property no.
36, Gadodia Market, Khari Baoli, Delhi in violation of orders of injunction passed, if so to what consequences?(OPP) CS DJ NO. 11321/2016 Sarwan Kumar vs Jai Gopal CS DJ NO 11320/16 Har Bai vs Jai Gopal Page no.37/49
57. The onus to prove these issues was upon the parties. These issues are regarding the possession of the properties no.36-A and 36-B. In view of my findings on above issues, as it has been proved on record and held that plaintiffs and defendant are in constructive possession of properties no.36-B and 36-A respectively through their tenant M/s Ram Richhpal Jai Gopal, no further finding on these issues is required nor it would be of any consequence. Since, the possession has been held to be with the firm M/s Ram Richhpal Jai Gopal as a tenant, there is no question of ouster of possession of any of the parties as they are the owners of the properties. Regarding handing over the keys of the premises to the Kirana Committee in December, 1988, it is again a non- consequential fact which will have no bearing on the findings of the case and thus, no finding is required to be give on these issues. In view of the finding that the properties no.36-A and 36-B were in possession of the firm M/s Ram Richhpal Jai Gopal as tenant of the owners of the said properties, these issues have become redundant and are, accordingly, dropped.
ISSUE NO. 5 :
(V) Whether the plaintiff is entitled to declaration and injunctions as prayed?(OPP)
58. In suit CS DJ No.11321/16, titled as "Sarwan Kumar and Anr. Vs Jai Gopal" , the plaintiffs have sought the following declarations and injunctions :
CS DJ NO. 11321/2016 Sarwan Kumar vs Jai Gopal CS DJ NO 11320/16 Har Bai vs Jai Gopal Page no.38/49
a) A decree for declaration that the suit property consisting of parts 36A and 36B is the absolute property of the parties to the suit with plaintiffs being the owner and in possession of property of part called 36B while defendant being the owner of part called 36A.
b) A decree of declaration to the effect that the suit property No. 36 consisting of parts 36A and 36B are not part of tenancy of firm M/s Ram Richpal Jai Gopal (already dissolved with effect from 08.02.1992) and defendant is not entitled to allege so in respect of plaintiffs property bearing part No. 36 B.
c) A decree of declaration that the plaintiffs are entitled to use, possess, enjoy and commercialize their property called 36B in any manner they like to the exclusion of defendant or any other person acting on his behalf.
d) A decree of perpetual injunction by way of consequential relief thereby restraining defendant from claiming or enforcing any lien on plaintiffs property bearing No. 36B and interfering, obstructing in the use, possession and enjoyment of the property by plaintiffs.
59. In view of my issue wise findings on issues no. 1, 2, 11 & 12 given above, the plaintiff is entitled to following declarations and CS DJ NO. 11321/2016 Sarwan Kumar vs Jai Gopal CS DJ NO 11320/16 Har Bai vs Jai Gopal Page no.39/49 injunctions :
(i) A decree of declaration that property no.36-A is the absolute property of defendant Jai Gopal and property no.36-B is the absolute property of plaintiffs Sarwan Kumar and Har Bai in view of the registered Sale Deeds (Ex.DW1/17, Ex.DW1/19 and Ex.D-5).
(ii) A decree of declaration that the plaintiffs are in constructive possession of property no.36-B owned by them through their tenant i.e. firm M/s Ram Richhpal Jai Gopal. The plaintiffs are not entitled to a decree of declaration that properties no.36-A and 36-B, Gadodia Market, Khari Baoli, Delhi are not a part of tenancy of the firm M/s Ram Richhpal Jai Gopal.
(iii) A decree of declaration that being the registered owners of the property no.36-B, plaintiffs are entitled to use, possess, enjoy and commercialize the said property subject to the tenancy rights of the firm M/s Ram Richhpal Jai Gopal.
(iv) A decree of perpetual injunction restraining the defendant from claiming and enforcing any lien on property no.36-B, Gadodia Market, Khari Baoli, Delhi in his individual capacity.
60. In view of the above findings, this issue is decided, accordingly.
ISSUE NO.6 :
(VI) From which date the partnership business called M/s Ram Richhpal Jai Gopal is liable to be declared as dissolved and what CS DJ NO. 11321/2016 Sarwan Kumar vs Jai Gopal CS DJ NO 11320/16 Har Bai vs Jai Gopal Page no.40/49 relief in regard to accounts is liable to be passed in favour of the parties to the suit?(OPP)
61. It is an admitted case of the parties that lastly the business of the firm of M/s Ram Richhpal Jai Gopal was carried on as a partnership firm w.e.f. 23.06.1982 wherein Sh. Balkishan Dass and Sh. Jai Gopal were the two partners. The Partnership Deed dated 23.06.1982 in this regard is Ex.DW1/1 and is an admitted document of both the parties. As per clause 6 of the Partnership Deed, the profits or losses of the partnership business were to be shared or borne by both the partners in equal shares.
62. It is again an admitted fact that one of the partner namely Sh. Balkishan Dass had expired on 08.02.1992. Although, his death certificate has not been proved on record. However, none of the parties to the suit have disputed the said fact.
63. Section 42 (c) of the Indian Partnership Act, 1932 specifically provides that subject to a contract between the partners, a firm is dissolved by the death of a partner. It has also been held by the Apex Court in Commissioner of IT vs State Govind Ram Sugar Mills, AIR 1966 SC 24 that this Section has no applicability to a partnership of two partners and there cannot be a contract between only two partners that on the death of one of them, the partnership will not be dissolved.
64. Accordingly, by operation of law, the partnership firm M/s Ram CS DJ NO. 11321/2016 Sarwan Kumar vs Jai Gopal CS DJ NO 11320/16 Har Bai vs Jai Gopal Page no.41/49 Richhpal Jai Gopal had dissolved w.e.f. 08.02.1992 i.e. the date of death of Sh. Balkishan Dass, one of the only two partners in the firm.
65. It has been argued on behalf of the defendant that after demise of Sh. Balkishan Dass, defendant had been continuing the firm M/s Ram Richhpal Jai Gopal and accordingly, the firm cannot be said to have been dissolved. This contention of the defendant does not inspire the confidence of the Court as by operation of law the partnership firm M/s Ram Richhpal Jai Gopal has to be considered as dissolved on demise of Sh. Balkishan Dass as the sole surviving partner cannot continue the firm. Even if the defendant had been using the name of M/s Ram Richhpal Jai Gopal as his sole proprietorship firm, the said user does not mean that the partnership firm M/s Ram Richhpal Jai Gopal was not dissolved on demise of one of the partners out of the two partners.
66. Section 37 of Indian Partnership Act categorically provides that where any member of a firm has died or otherwise ceased to be a partner, and the surviving or continuing partners carry on the business of the firm with the property of the firm without any final settlement of accounts as between them and the out going partners or his estate, then, in the absence of a contract to the contrary, the outgoing partner or his estate is entitled at the option of himself or his representatives to such share of the profits made since he seized to be a partner as may be attributable to the use of his share of the property of the firm or to interest at the rate of 6% per annum on the amount of his share in the CS DJ NO. 11321/2016 Sarwan Kumar vs Jai Gopal CS DJ NO 11320/16 Har Bai vs Jai Gopal Page no.42/49 property of the firm.
67. Accordingly, in view of these provisions of law, it is held that the partnership firm M/s Ram Richhpal Jai Gopal was dissolved w.e.f. 08.02.1992 i.e. the date of death of one of the partner namely Sh. Balkishan Dass. Since, the defendant has admitted continuing the business of the firm after demise of Late Sh. Balkishan Dass, he is liable to render the accounts of the business to LRs of Late Sh. Balkishan Dass w.e.f. 08.021992. This issue is, accordingly, decided in favour of the plaintiff and against the defendant.
ISSUE NO.7 (VII). What accounts are liable to be considered for dissolution of the partnership business called M/s Ram Richpal Jai Gopal?(onus on the parties)
68. The plaintiff has sought rendition of books of accounts of partnership firm M/s Ram Richhpal Jai Gopal. In this regard, vide order dated 01.02.1994 Sh. Sanjeev Kumar Chaswal, Advocate was appointed as a Local Commissioner for inspecting the books of accounts of the firm M/s Ram Richhpal Jai Gopal and signing the same. Ld. Local Commissioner had furnished his report dated 22.04.1996 giving the details of the books of accounts produced before him and signed by him. All these books of accounts are liable to be considered for dissolution of the partnership business called M/s Ram Richhpal Jai Gopal.
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69. In addition, it is pleaded that the partnership firm held various tenanted premises used as godown of partnership firm namely (I) property no.1212/III, Gali Samosan, Naya Bans, Khari Baoli, Delhi admeasuing about 16' x 16' on ground floor (2) property no.1104/VI, Gali Samosan, Naya Bans, Khari Baoli, Delhi measuring 8'x15' situated on ground floor and (3) property no.73, Gali Memwali, Katra Baryan, Fatehpuri, Delhi admeasuring 12'x9' situated on first floor. In their Written Statement defendant has alleged that property no.1212 was surrendered by Sh. Balkishan Dass during his life time. He has admitted to be in possession of properties no.1104 and 73 but pleaded that both these properties are lying locked because they are unusable. The defendant has also alleged that the plaintiff has deliberately not disclosed about the prime property bearing no.2100-2101, Katra Tambacoo, Khari Baoli, Delhi-06 which Sh. Laxmi Narayan had taken on rent as proprietor and which is in the use of the plaintiffs.
70. None of the parties to the case has placed on record any documents regarding the tenancy of any of the above properties being in the name of partnership firm M/s Ram Richhpal Jai Gopal. During the course of the arguments, the plaintiffs have conceded that 3 tenanted premises that are properties no.1212, 1104 and 73 have already been surrendered and are no longer in possession or use of any of the parties to the suit. Accordingly, they are not claiming any tenancy rights in the said properties.
71. As regards property no.2100-2101, as per the pleadings of the CS DJ NO. 11321/2016 Sarwan Kumar vs Jai Gopal CS DJ NO 11320/16 Har Bai vs Jai Gopal Page no.44/49 defendant, the said property was taken on rent by Sh. Laxmi Narayan as a proprietor. He has not alleged the said property to be tenanted premises of the partnership firm M/s Ram Richhpal Jai Gopal. None of the parties have produced on record any evidence to the effect that the partnership firm M/s Ram Richhpal Jai Gopal had any rights in the said property after execution of Partnership Deed dated 23.06.1982 or that the said property is still continuing under the tenancy of the partnership firm. Moreover, defendant has not filed any counter claim alleging any tenancy rights of the firm in the said property.
72. In view of the evidence on record, it cannot be held that the firm M/s Ram Richhpal Jai Gopal had any subsisting tenancy right in either of the four properties mentioned above. Accordingly, the alleged tenancy rights in these four properties cannot be held to be subject matter of rendition of accounts of the partnership firm M/s Ram Richhpal Jai Gopal.
73. As held in my issue wise findings on issues no.1, 2, 11 and 12 above, it is amply clear on record that the property no.36, Gadodia Market, Khari Baoli, Delhi which was later on subdivided and sold in parts as 36-A and 36-B continued to be under tenancy of the firm M/s Ram Richhpal Jai Gopal. Both the parties to the suit have failed to prove the surrender of the said tenancy at any point of time. Accordingly, the tenancy rights of the partnership firm in properties no.36-A and 36-B are liable to be considered for dissolution of the partnership business called M/s Ram Richhpal Jai Gopal.
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74. It is also worthwhile to mention that as per clause 10 of the Partnership Deed (Ex.DW1/1), the goodwill of the tenancy rights in all the business premises shall vest in both the partners in equal shares. Since it has been specifically pleaded by the defendant that after demise of Sh. Balkishan Dass on 08.02.1992, he had been continuing the business under the name and style of M/s Ram Richhpal Jai Gopal as sole proprietorship firm from the tenanted premises bearing no.36, Gadodia Market, Khari Baoli, Delhi, he is also liable to render the accounts in respect of the goodwill of the said tenancy rights.
75. In view of above findings, this issue stands disposed of accordingly.
ISSUE NO. 8 AND 9 :
(VIII) Whether the plaintiffs have no locus standi to file CS (OS) no. 252/1994?(OPD) (IX) Whether the suit CS(OS) no. 252/1994 is without cause of action?(OPD)
76. The onus to prove these issues was on the defendant who has alleged that the suit for rendition of accounts bearing CS DJ No.11320/2016 titled as "Har Bai Vs Jai Gopal" was filed by the plaintiff without any locus-standi and without any cause of action. However, defendant has miserably failed to discharge the onus upon him to prove these issues. Admittedly, Smt. Har Bai is the widow of CS DJ NO. 11321/2016 Sarwan Kumar vs Jai Gopal CS DJ NO 11320/16 Har Bai vs Jai Gopal Page no.46/49 Late Sh. Balkishan Dass and thus, being one of the LR of Late Sh. Balkishan Dass she has a right to file a suit for rendition of accounts of the partnership firm. Plaint also clearly discloses the cause of action i.e. failure of the defendant to render business accounts after demise of Late Sh. Balkishan Dass despite repeated requests. In these circumstances, in my opinion, the suit has been properly instituted by an authorized person and plaint discloses the cause of action. These issues are accordingly, decided in favour of the plaintiffs and against the defendant.
Relief.
77. In view of my issue wise findings given above, the plaintiff is entitled to the following reliefs:
1. A decree of declaration that property no.36A is the absolute property of the defendant Jai Gopal and property no.36B is the absolute property of the plaintiffs Sarwan Kumar and Har Bai in view of the registered Sale Deeds (Ex.DW1/17/Ex.D-1, Ex.DW1/19/Ex.D-3 and Ex.D-5).
2. A decree of declaration that plaintiffs are in constructive possession of property no.36B owned by them through their tenant i.e. the firm M/s Ram Richhpal Jai Gopal.
3. A decree of declaration that being the registered owners of property no.36B, the plaintiffs are entitled to use, possess, enjoy and commercialize the said property subject to the tenancy rights of the firm M/s Ram Richhpal Jai Gopal.
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4. A decree of perpetual injunction restraining the defendant or his legal heirs from claiming and enforcing any lien on property no.36B, Gadodia Market, Khari Baoli, Delhi in their individual capacity.
5. A decree of declaration that the partnership firm M/s Ram Richhpal Jai Gopal (which became operational vide Partnership Deed dated 23.06.1982 having Late Sh. Balkishan Dass and Sh. Jai Gopal as two partners) was dissolved on demise of Sh. Balkishan Dass on 08.02.1992 by operation of law.
6. A preliminary decree to the effect that both the partners in the partnership firm M/s Ram Richhpal Jai Gopal namely Sh. Balkishan Dass and Sh. Jai Gopal had 50% share each in the profits and losses of firm and other rights as per partnership deed dated 23.06.1982(Ex.DW1/1).
7. A preliminarily decree to the effect that plaintiffs (being LR's of deceased Sh. Bal Kishan Dass) are entitled for rendition of accounts of dissolved firm M/s Ram Richhpal Jai Gopal and following accounts are liable to be considered for dissolution of the partnership business :
(a) The books of accounts detailed in the report of Ld. Local Commissioner dated 22.04.1996 which were inspected and signed by him.
(b) Tenancy rights of the partnership firm in properties no.36- A and 36-B owned by the defendant and plaintiff respectively.
(c) Goodwill of the tenancy rights belonging to the partnership CS DJ NO. 11321/2016 Sarwan Kumar vs Jai Gopal CS DJ NO 11320/16 Har Bai vs Jai Gopal Page no.48/49 firm as per clause 10 of the Partnership Deed.
8. Costs of the suits.
78. Let final decree in terms of declarations be drawn in CS DJ No.11321/16 titled as "Sarwan Kumar and Anr. Vs Jai Gopal" . Let preliminary decree of rendition of accounts be drawn in CS DJ No.11320/16 titled as "Har Bai vs Jai Gopal".
79. Case file of CS DJ No.11321/16 be consigned to Record Room.
80. Case file of CS DJ No.11320/16 be put for further inquiry under Order 20 Rule 15 CPC regarding rendition of accounts.
ANNOUNCED IN THE OPEN COURT, Digitally signed th TODAY, 12 Day of August, 2025. SHIVALI by SHIVALI SHARMA SHARMA Date: 2025.08.12 15:23:16 +0530 (Shivali Sharma) District Judge-06, Central Tis Hazari Courts, Delhi/12.08.2025(k) CS DJ NO. 11321/2016 Sarwan Kumar vs Jai Gopal CS DJ NO 11320/16 Har Bai vs Jai Gopal Page no.49/49