Delhi District Court
Satish Kumar vs Subhash Chander on 31 January, 2020
IN THE COURT OF SH. HASAN ANZAR, ADJ-06
WEST DISTRICT,TIS HAZARI COURTS
CS No.9785/16
Satish Kumar
S/o Late Sh Girdhari Lal
R/o H. No.A-21, Kewal Park Extension,
Azadpur, Delhi-33
..........Plaintiff
Versus
1. Subhash Chander
S/o Late Sh Girdhari Lal
R/o H No. B 116, Gujrawala Town,
Upper Floor, Part I, Delhi-33
2. Sh Rajinder Kumar Chopra
S/o Sh Om Prakash Chopra
3. Sh Satish Kumar Chopra
S/o Sh Om Prakash Chopra
4. Sh Anil Kumar Chopra
S/o Sh Om Prakash Chopra
All R/o H.No 145, Majlis Park, Delhi -33
5. Sh Sunil Kumar Puri
S/o Late Sh Lahrimal
R/o X 628,Raghubar Pura no.1,
Gandhi Nagar, Delhi -31
CS No. 9785/16 Satish Kumar vs Subhash Chander and ors Page No. 1 /31
6. Sh Zikhu Rehman Khan (Deceased)
S/o Sh Rafiq Mohd ( Through LR's)
(i) Rafiq Mohd ( Father)
S/o Late Sh Shahzad Khan
(ii) Smt Amnaa Begum (Mother)
W/o Sh Rafiq Mohd
(iii) Smt Shabana Naaz (Wife)
W/o Late Sh Zlkru Rehman Khan
(iv) Master Arhan Khan ( Minor Son)
S/o Late Sh Zlkru Rehman Khan
All R/o H.no. H-3, 1464-65
Jahangir Puri, Delhi -33
Also at:
E-8, Rajan Babu Road, Adarsh Nagar,
Delhi-33
7. Sh Mohd Yunus Qureshi
S/o Sh Shamsuddin
R/o Shop no. B894, New Subzi Mandi
Azadpur, Delhi-33
..........Defendants
Date of Institution: 03.06.2006
Date reserved for Judgment: 16.11.2019
Date of Judgment : 31.01.2020
CS No. 9785/16 Satish Kumar vs Subhash Chander and ors Page No. 2 /31
JUDGMENT
1. Plaintiff has instituted suit for possession (decree of possession to the extent of 50%), mesne profit and permanent injunction in respect of Shop No. B 894, measuring 180 sq feet situated at Subzi Mandi , Azadpur, Delhi (hereinafter to be called as "Suit Shop").
2. As per the facts pleaded in the plaint are that suit shop was allotted by DDA to Partnership Firm "Subhash Chander Satish Kumar". It was pleaded that suit shop was allotted in lieu of shifting scheme of Old Scheme Subzi Mandi. It is also pleaded that plaintiff is one of the partners of the firm and co-allottee of the shop and has 50% share in the suit shop. It is also averred that due to dispute in between plaintiff and defendant no.1 as defendant no.1 had misappropriated the funds of the partnership of the firm and suit shop was lying locked.
3. It is also the case of plaintiff that on 17.12.1997, he came to know that defendant no.1 and defendant no.4 were trying to break the lock of shop and he immediately reached suit shop and police was also called at the spot. It is also pleaded that defendant no.1 and 4 showed documents pertaining to the suit property and it CS No. 9785/16 Satish Kumar vs Subhash Chander and ors Page No. 3 /31 came to the knowledge of plaintiff that certain documents i.e. Special Power of Attorney, Registered General Power of Attorney and Will were executed and registered before Office of Sub Registrar on 02.09.1997 by Plaintiff in favour of defendant No.1. As per the documents, Agreement to sell and receipt dated 26.11.1997 were executed by plaintiff in favour defendant No.1 and the said facts were disclosed before the Police. It is also pleaded that defendant no. 1 have executed certain documents i.e GPA, SPA and receipt dated 16.12.1997 in favour of defendant no 2-4. It is pleaded that plaintiff verified the document and came to the conclusion that signatures and thumb impression of plaintiff were forged and fabricated as plaintiff did not execute any documents in favour of any person/ defendant no.1 in respect of 50% share in the suit shop and defendant no 1 had forged his signature and thumb impression. It is also pleaded by plaintiff that SPA, GPA and Will were executed in connivance with the officials of Sub Registrar, Delhi.
4. It is also pleaded that complaint with regard to act of defendants was made to Police Station Adarsh Nagar on 17.12.1997. It is also pleaded by plaintiff that original documents were seized by the police and documents were sent to CFSL and upon receipt of the report, FIR No. 195/1999 under section 420/467/468/471 IPC was registered.
CS No. 9785/16 Satish Kumar vs Subhash Chander and ors Page No. 4 /315. Documents i.e. GPA, SPA, Will dated 02.09.1997 and agreement to sell and receipt dated 26.11.1997 are forged and fabricated by defendant no.1 in respect of 50 percent share of the plaintiff in suit shop. It also averred that based on documentation dated 16.12.1997, defendant no.1 sold the share of plaintiff in the suit shop to defendant no. 2-4. It is also pleaded that defendant no 2-4 have further sold the suit shop on the basis of forged and fabricated documents i.e. GPA, SPA, Will, Agreement to sell and affidavit dated 10.06.1998 to defendant to 6 and thereafter, defendant no 6 have let out the suit shop on rent to defendant no 7.
6. It is further pleaded that defendant no. 6 and 7 are illegal occupants of 50% share in the suit shop and are planning to dispose of the suit shop.
7. Plaintiff claimed mesne profits at the rate of 2500-3000 per month on the basis of the fact that suit shop can fetch rent of 5000-6000 per month.
8. Plaintiff for the purpose of relief of possession has valued the suit shop at Rs 17 Lakhs but since plaintiff claimed only half share of the suit shop in question and thus paid advalorem court fee on his share in the suit shop i.e. Rs 8.5 Lakhs.
CS No. 9785/16 Satish Kumar vs Subhash Chander and ors Page No. 5 /319. On the basis of the aforesaid facts, plaintiff prayed for decree of possession to the extent of 50% share in respect of the suit shop and also sought ejectment of defendant No. 6 and 7 from suit shop. Plaintiff had claimed damages at rate of Rs. 2500 per month as mesne profits from 1.06.2003 to 31.05.2006. Plaintiff also prayed for mesne profits @ Rs. 2500 per month w.e.f 1.06.2006 till the date of handing over the possession of the suit shop. Plaintiff had also prayed for permanent injunction from creating third party rights in respect of suit shop.
Written Statement filed on behalf of defendant No. 1
10. Defendant No.1 claimed that suit filed by plaintiff is bad for non- joinder of parties. Defendant No. 1 raised a plea that there are four partners in the partnership firm and at the most share of plaintiff would not be more than 25 percent.
11. As per defendant no.1, firm by the name of Satish Chander Subhash Chander was started by defendant no.1 and it applied for the allotment of plot and on 18.07.1971, a partnership firm was formed with plaintiff and defendant no. 1 being its partners and later on mother, sister and brother of plaintiff were added as partner. It is also averred that none of the documents described suit shop as belonging to partnership firm.
CS No. 9785/16 Satish Kumar vs Subhash Chander and ors Page No. 6 /3112. Defendant No.1 also took up the plea father of plaintiff and defendant No.1 were residing in House No. B-136, Gujrawala Town, Delhi. It was also pleaded that after the death of father of plaintiff, a family settlement was arrived in between the plaintiff, defendant No.1 and other members of family and wherein Suit shop was also put in the pool along with the house and house was to be sold for Rs 53 Lakhs and shop was valued for Rs 10 Lakhs and dues of Rs 3,68,000/- was pending and thus total assets have been kept for Rs 66,68,000/- and as per defendant no. 1, assets were divided. It was also pleaded that suit shop was given to defendant no. 1 as per settlement dated 15.4.1996. It is also averred that pursuant to settlement, it has been agreed that plaintiff shall execute Power of Attorney in favour of defendant no.1. Pursuant to this understanding, plaintiff called defendant no.1 to office of Sub Registrar and when defendant no. 1 reached there, the plaintiff had already prepared the papers and on which plaintiff appended his signatures and thereafter, document was duly registered with the office of Sub Registrar.
13. On merits, defendant no.1 admitted that Suit shop was allotted in the name of Subhash Chander Satish Chander. Defendant No.1 took a plea that if one considers the allotment in the name of firm, then it is defendant no. 1 who is the proprietor of firm and if CS No. 9785/16 Satish Kumar vs Subhash Chander and ors Page No. 7 /31 allotment was made in the firm, then all partners are equal owners of the suit and as per settlement dated 15.4.1996, the suit shop came into the share of defendant No.1. Defendant No.1 further denied averment made in the plaint to the effect that Power of Attorney and other documents executed by plaintiff in favour of defendant no 1 are forged and fabricated. Defendant no.1 asserted that documents were properly executed and with regard to criminal proceedings, it was averred that false case was registered against defendant No.1 and it is plaintiff who is cheating the Defendant No.1. Defendant no 1 admitted that suit shop has been sold to defendant no 2 to 4.
Written Statement on behalf of Defendant No. 2 to 4
14. Defendant No. 2 to 4 took stand that they were bonafide purchaser of the suit shop and subsequently sold the suit shop to Defendant No. 6 by executing number of documents and defendant No. 2 to 4, therefore have no right in respect of the suit property. Other averments made in the plaint were denied for want of knowledge. In response to the allegations that documentation dated 2.9.1997 & 26.11.1997 purported to be made in favour of defendant No.1 are forged and fabricated, it was responded that defendant No.2 to 4 have become owner of property by virtue of execution of various documentation dated 10.06.1998. Plea is also made to the CS No. 9785/16 Satish Kumar vs Subhash Chander and ors Page No. 8 /31 effect that defendant no.2 to 4 have exercised due diligence and caution in respect of title of property and after confirming the title of the property in question, it was purchased with valuable consideration. Allegations were made that both defendant no.1 and plaintiff are working in collusion and connivance with each other. A plea is also taken to the effect that plaintiff had executed General Power of Attorney in favour of Defendant No. 1 and defendant no.1 was empowered to sell the suit shop and therefore, defendant no.2 to 4 were competent to sell the suit shop in favour of defendant no.
6. Written Statement on behalf of Defendant No. 5
15. Written Statement filed on behalf of defendant No. 5 denied averments made in the plaint. It is submitted that suit is bad for non joinder of parties as suit shop belongs to DDA which is a necessary party to the suit. It is stated that defendant No. 5 is also one of the co-shareholder along with defendant no.2-4.
Written Statement on behalf of Defendant No. 616. Written Statement filed on behalf of defendant no. 6 took an objection that suit filed by plaintiff is not maintainable as plaintiff is not registered partner. An objection was also raised on CS No. 9785/16 Satish Kumar vs Subhash Chander and ors Page No. 9 /31 behalf of defendant no. 6 that since plaintiff has pleaded that he was one of the partners and therefore, suit filed by plaintiff is barred under Section 69 Partnership Act. Objection was also raised to the effect that suit for possession is not maintainable against a partner of the firm as it is not the suit for dissolution of partnership or rendition of account. Objection was also raised to the effect that suit is not maintainable against defendant no.1 to 7. Objection is also taken to the effect that suit filed by plaintiff is time barred. Plea is also taken to the effect that suit was not valued properly for the purposes of jurisdiction. A plea was also taken to the effect that date of dispossession was not stated in the plaint.
17. Plea is also taken that plaintiff has played fraud and therefore, plaintiff is not entitled for the relief.
18. An objection is also taken that plaintiff had pleaded that Suit Shop is property of partnership firm and was allotted to the partnership and therefore, there cannot be any 50% share in the suit shop.
19. On merit, averments made in the plaint were denied. It is also averred that since there is an admission on behalf of plaintiff, that defendant no.1 was taking care of partnership firm and therefore, plaintiff has admitted that he is not in possession of suit CS No. 9785/16 Satish Kumar vs Subhash Chander and ors Page No. 10 /31 shop and once it is admitted by plaintiff that defendant no.1 was in possession of the suit shop therefore, averment made in the plaint that defendant no.1 is trying to take possession of suit shop is false.
20. It is also averred that defendant no.6 had purchased the suit shop in the year 1998 and it was further pleaded that defendant no. 6 is also entitled for the benefit under Section 53A of Transfer of Property Act, 1882. It was also pleaded that defendant No.1 had sold the suit shop against valuable consideration and it was further pleaded that plaintiff the owner of suit shop. With regard to the original documents taken by the police pursuant to lodgment of DD No. 17 dated 17.12.1997, it was submitted that specimen signature signatures or thumb impression were taken without the order of the court and hence same was illegal and furthermore original documents had not been filed and as and when same is filed, defendant no. 6 shall file additional written statement. In response to the averment made in the plaint that thumb impression/ signature of plaintiff as appearing on the documentation dated 16.12.1997 are not that of plaintiff. Stand was taken that same was to be proved by plaintiff during the trial. It was also averred that plaintiff had filed suit after the period of 9 years and thus he is guilty of laches and acquiescence and claim of mesne profits was denied.
Additional Written Statement on LRs of Defendant No. 6(i) CS No. 9785/16 Satish Kumar vs Subhash Chander and ors Page No. 11 /31
21. Consequent to the death of Defendant No.6, additional written statement was filed by LRs of defendant no. 6 and adopted the written statement filed by defendant No. 6 and certain other pleas were also raised in the additional written statement filed by defendant no 6(i). It is also pleaded that suit in the present claim for the relief is not maintainable and since defendant no 1 is the partner of the firm, he had legal right and authority to sell the whole shop. It is also pleaded that since admission was made in the plaint and also in the application under Order 1 rule 10 CPC vide Ex PW1/D6(A), defendant no 1 i.e. Subhash Chander, partner of firm has sold the suit shop. Plaintiff is left with no right to file the suit against partner and purchaser for relief claim. Perusal of written statement of defendant no 6(i) would show that it is reiteration of stand taken by defendant no. 6 except for some minor facts which were discussed as above.
Additional Written Statement on LRs of Defendant No. 6(ii) & 6(iii)
22. Written Statement filed on behalf of defendant no. 6 (ii) and 6 (iii) is reiteration of written Statement filed by defendant no.
6. It was pleaded that plaintiff had failed to establish that he has 50 percent share in respect of the suit shop as there is no document by CS No. 9785/16 Satish Kumar vs Subhash Chander and ors Page No. 12 /31 which title of the plaintiff is established and other averments were also raised. It is pleaded that case of plaintiff has to stand on his own leg.
Written Statement on LRs of Defendant No. 723. Defendant no. 7 claimed himself to be the tenant on defendant and submitted that there is no cause of action against him. On merits, contents of the plaint were denied for want of knowledge.
Replication on behalf of plaintiff to the written statement filed by Defendant No. 1
24. Plaintiff filed Replication to written statement filed by Defendant No. 1 wherein the contents of plaintiff were reiterated and those of written statement were denied. It was asserted that plaintiff has fifty percent share in respect of the suit property. More particularly in paragraph 5 of the replication, in response to the stand taken in the written statement by Defendant No.1. Plaintiff admitted that family settlement was arrived in between plaintiff and defendant and mother of parties with certain qualifications.
25. Replication to the Written Statement of defendant no.2 to CS No. 9785/16 Satish Kumar vs Subhash Chander and ors Page No. 13 /31 4 filed by plaintiff in which plaintiff reiterated contents of plaint and stated that defendant no.2 to 4 have hatched conspiracy to deprive the plaintiff of his 50 % share in the suit shop and other transactions as entered in between the defendants were unauthorized.
26. Replication to the Written Statement of defendant no.5 also filed by plaintiff is on the same lines as that of defendant no.4.
27. In replication to the Written Statement of defendant no.6, contents of plaint were reiterated and various averments made in the Written Statement were denied. A plea is also taken that possession and title of defendant no.6 in the suit shop is illegal and void. It is also submitted that no legal right could accrued to defendant no.6 as defendant no.1 is not entitled to sell the share of plaintiff. Plaintiff also took the stand that various documents as relied by defendant no.6 are forged and fabricated.
28. On the basis of the pleadings of the parties, vide order dated 18.01.2011, following issues were framed:-
Issue No. 1 : Whether the suit is bad for mis-joinder or non joinder of necessary parties ? OPD Issue No. 2 : Whether the suit is barred under section 69 of Partnership Act? OPD-6 CS No. 9785/16 Satish Kumar vs Subhash Chander and ors Page No. 14 /31 Issue No. 3 : Whether this Court has got no pecuniary jurisdiction to try and entertain the present suit ? OPD6 Issue No.4: Whether the suit is barred by period of limitation ?
OPD-6 Issue No.5: Whether the plaintiff is entitled for decree of possession, as prayed for ? OPP Issue No. 6 : Whether the plaintiff is entitled for mesne profit, as claimed ? OPP Issue No. 7 : Whether the plaintiff is entitled for permanent injunction, as prayed ? OPP Issue No. 8 : Relief.
Evidence on behalf of parties
29. In support of his case, plaintiff examined himself as PW1 by way of affidavit Ex.PW1/A and relied upon the following documents:
Site Plan is Ex PW-1/1, Copy of Final Letter of Construction is Ex PW-2/3/ Mark A, Letter of Payment is Ex PW- 2/2 /Mark B, Demand Letter of Property Tax is Mark C, Letter of Allotment is Ex PW-2/1 / Mark D, Challan Voucher are Mark E and F, Payment Receipt is Mark G, Challan is Mark H, Payment Receipt are Mark I & J, Letter of Possession is Mark K, No objection certificate is Mark L, Letter in respect of payment of balance of cost CS No. 9785/16 Satish Kumar vs Subhash Chander and ors Page No. 15 /31 of construction is Mark M, Certified Copy of SPA dt 02.09.1997 is Ex PW-1/2, Certified Copy of General Power of Attorney dt 02.09.1997 is Ex PW-1/3, Will dated 02.09.1997 is Ex PW-1/4, ( Certified copy of SPA is mark O and General Power of Attorney is Mark N), Certified Copy of Seizure Memo is Ex PW-1/8-A, Receipt is Mark P, Specimen Signature, Thumb Impression and handwriting sample are Ex PW-1/9 to Ex PW-1/13, Specimen Handwriting of Satish Chander are Ex PW-1/14 to Ex.PW1/22, Copy of Complaint dated 19.12.19979 is ExPW-1/23, Handwriting Report is Ex.PW-1/24, Copy of FIR no. 195/1999 under section 420/467/468/471 IPC dated 2.9.1997, PS Adarsh Nagar is Ex.PW-1/25, Copy of Chargesheet is Ex.PW-1/26, Copy of Agreement to Sell dated 10.06.1998 is Ex.PW-1/27, General Power of Attorney is Ex.PW-
1/28, Copy of Will of Satish Kumar is Ex PW-1/31, Copy of Will of Sunil Kumar is Ex PW-1/32, Copy of Will by Sh. Anil Kumar is Ex.PW-1/33, Copy of Receipt is Ex PW-1/29, Copy of Affidavit is Ex PW-1/30, Certified Copy of Form A issued by Registrar of Firms mentioning the name of partners of Ex PW-1/D6.
30. Plaintiff also examined Sh Tejpal Singh, UDC, office at Commercial Estates, Vikas Sadan as PW-2.
PW-3 Sh Surender Kumar, Ahlmad from the Court of Sh CS No. 9785/16 Satish Kumar vs Subhash Chander and ors Page No. 16 /31 Kapil Kumar, Ld MM-06, Rohini Courts who has brought the record already exhibited as EX.PW1/8 to Ex.PW1/26 and also original of Ex.PW1/2 and Ex.PW1/3.
Vide order dated 09.10.2015, PE was closed.
31. In support of his case, defendant No. 6 has examined Sh Rafique Mohammad as D6W1 by way of affidavit Ex.D3W1/A and relied upon the following documents ;
Electricity Bills are Ex.D6W1/1 to D6W1/3, Telephone Bill is Ex D6W1/5, Receipt for payment of telephone bill is Ex.D6W1/6, House tax receipt is Ex.D6W1/7, Receipt of Water Charges is Ex D6W1/8, Ex.D6W1/9 is photocopy of water bill.
Mark D6W1/10 is photocopy of water connection letter dt 23.09.2003, Mark D6W1/11 is copy of water bill for period 01.01.2006 to 31.03.2006, Mark D6W1/12 is photocopy of water bill for 01.10.2002 to 31.12.2005, Mark D6W1/13 is photocopy of receipt dt 24.03.2006, Mark D6W1/15 is photocopy of receipt of security and road cutting charges, Mark D-19 are copy of two receipts no.60 and 61 of Book No.260 Ex. D6W1/16 is photocopy of two receipts no. 064 and 065, Ex.D6W1/17 and Ex.D6W1/18 are photocopy of Form-B issued by Jt Secretary, Ex.D6W1/20 is market fees dt 16.07.2006 for the period 01.07.2006 to 15.07.2006, Ex.D6W1/21 copy of market fees dt 1.07.2006, Ex.D6W1/22 is copy of market fees dt CS No. 9785/16 Satish Kumar vs Subhash Chander and ors Page No. 17 /31 16.06.2006, Ex.D6W1/23 is market fees dt 01.06.2006, Ex.D6W1/24 is copy of market fees dt 01.04.2006, Ex.D6W1/25 is market fees dt 16.03.2006, Ex.D6W1/26 copy of market fees dt 01.03.2006, Ex.D6W1/27 copy of market fees dt 16.02.2006, Ex.D6W1/28 to Ex.D6W1/32 are copies of market fees, Ex.D6W1/33 is penalty receipt dt 08.09.2005, Ex.D6W1/34 are two receipts no.62 and 63 regarding renewal of license for the year 2006-2007, Ex.D6W1/35 is photocopy of license Form-B, Ex.D6W1/36 is photocopy of receipt no.75 and 76, Ex.D6W1/37 to Ex.D6W1/48 are photocopy of receipt qua deposit of cheque undr the signature of Rafiq Mohd in the name of M/s National Fruit Co., Ex.D6W1/49 (colly) are three original gate pass, Ex.D6W1/50 is copy of telephone bill, Ex.D6W1/51 are six photographs of the shop. In the evidence by way of affidavit, documents Ex.D6W1/4 and Ex.D6W1/14 are mentioned but no document was found available on record.
32. No evidence has been led on behalf of other defendants.
33. I have heard ld counsel for plaintiff and ld counsel for LRs of defendant no.6 and perused the material available on record. I have also perused written submissions filed by counsel for LRs of Defendant No.6.
In support of their case, ld counsel for parties have relied CS No. 9785/16 Satish Kumar vs Subhash Chander and ors Page No. 18 /31 upon following judgment:-
i) Yeshvir Singh Tomar Vs. Dr. O P Kohli & Ors, 222 (2015) DLT 285
ii) G. Ram Vs. Delhi Development Authority, AIR 2003 DELHI 120
iii) Navjot Pal Singh Randhawa & Anr Vs. DDA,229 (2016) DLT 489
iv) Corporation of City of Bangalore Vs Zulekha Bi and Ors.
(2008) 11 SCC 306
v) Sayed Muhammed Mashur Kunhi Koya Thangal Vs. Badagara Jumayath Palli Dharas Committee and Ors, (2004) 7 SCC 708
vi) Veji Raghavji Patel Vs. State of Maharashtra, 1965 (2) SCR 429
vii) Anil Saran Vs. State of Bihar and anr, (1995) 6 SCC 142
viii) Thimmappa Rai Vs. Ramanna Rai and ors, (2007) 14 SCC 63
ix) Raman Arora Vs Nirmala Aggarwal, 73 (1998) DLT 809 (DB)
x) Vice-Chairman, Kendriya Vidyalaya Sangathan and anr. Vs. Girdharilal Yadav (2004) 6 SCC 325
xi) Lourdu Mari David & Ors. Vs Louis Chinnaya Agrogiaswamy & Ors. JT 1996 (7) SC 499
xii) Gannmani Anasuya & Ors. Vs Parvatini Amarendra Chowdhary & Ors., AIR 2007 SC 2380
xiii) A.K K Nambiar Vs. Union of India and anr., AIR 1970 SC 652
xiv) Debi Singh Vs. Bhim Singh and ors, AIR 1971 DELHI 316 CS No. 9785/16 Satish Kumar vs Subhash Chander and ors Page No. 19 /31 (V 58 C 64).
34. My issue wise findings are hereunder;
35. Issue No.1:- Whether the suit is bad for mis-joinder or non joinder of necessary parties? OPD Onus to prove this issue was on the defendants. It was pleaded that DDA is the owner of the suit shop and lease holder was Satish Kumar Subhash Chander Firm and therefore, impleadment of DDA is necessary for the just determination of the case. There is no requirement of DDA be impleaded as party in the case as no effective relief is being sought by plaintiff against DDA. Hence, this issue is decided in favour of the plaintiff as against the defendant.
36. Issue No.2:-Whether the suit is barred under section 69 of Partnership Act? OPD6 Relevant Clauses of Section 69 of Indian Partnership Act, 1932 is being reproduced here as under ;
69. Effect of non-registration.--
(1) No suit to enforce a right arising from a contract or conferred by this Act shall be instituted in any court by or on behalf of any CS No. 9785/16 Satish Kumar vs Subhash Chander and ors Page No. 20 /31 person suing as a partner in a firm against the firm or any person alleged to be or to have been a partner in the firm unless the firm is registered and the person suing is or has been shown in the Register of Firms as a partner in the firm.
(2) No suit to enforce a right arising from a contract shall be instituted in any Court by or on behalf of a firm against any third party unless the firm is registered and the persons suing are or have been shown in the Register of Firms as partners in the firm produced as under ;
As per Sub Section 2 of Section 69 of Partnership Act, 1932 no suit to enforce a right arising out of contract can be instituted against third party unless firm or name of such persons is shown as partner in the firm. Reading of the plaint and relief sought by the plaintiff would indicate neither in the pleadings nor in the prayers there is any plea on behalf of the plaintiff that there were any contractual obligations to be fulfilled by the partnership firm. Plaintiff seeks recovery on the basis of his individual title to the extent of 50 %. Hence, bar under Section 69 of Partnership Act, 1932 would not be attracted in the present case.
37. Moreover, objection raised on behalf of behalf of defendant no. 6 does not survive since during the cross examination of Plaintiff, Form A containing the name of partnership as well as the name of partners were put by defendant in the cross examination of plaintiff vide PW-1/D6 was also admitted by plaintiff thus any CS No. 9785/16 Satish Kumar vs Subhash Chander and ors Page No. 21 /31 objection of the defendant stands answered by putting up the certificate of Registration which contains the name of plaintiff as one of the partners of firm. Hence, Issue No.2 is decided against the defendants and in favour of plaintiff.
38. Issue No.3:- Whether this Court has got no pecuniary jurisdiction to try and entertain the present suit ? OPD 6 Onus to prove this issue was on the defendant No.6 by pleading that Court does not have pecuniary jurisdiction to try and entertain the present suit. Defendant pleaded that value of the suit property is Rs 35 Lakhs not Rs. 17 Lakhs as pleaded by plaintiff and therefore, this court does not have jurisdiction to entertain and try the present suit however, defendant did not lead any evidence on this account and therefore, valuation filed by the plaintiff is accepted. Hence, Issue No.3 is decided in favour of plaintiff as against defendant no. 6.
39. Issue No.4: Whether the suit is barred by period of limitation ? OPD-6 Plaintiff has pleaded that on 17.12.1997, the plaintiff came to know about the fact that defendant no.1 and 4 took the possession of the suit shop and whereas the present suit being the CS No. 9785/16 Satish Kumar vs Subhash Chander and ors Page No. 22 /31 suit for possession was filed by plaintiff on 03.06.2006, hence, the suit filed by plaintiff is filed within a period of limitation. Hence, this issue is decided in favour of plaintiff as against defendants.
40. Issue No.5:- Whether the plaintiff is entitled for decree of possession, as prayed for ? OPP Issue No.6:- Whether the plaintiff is entitled for mesne profit, as claimed ? OPP Issue No.7:- Whether the plaintiff is entitled for permanent injunction, as prayed ? OPP All three issues are intertwined with each other and are being taken up together for the purposes for the discussion since it requires appreciation of common facts, grounds and evidence.
PW-1 appeared before the Court and deposed on the lines of facts as stated in the plaint. Reading of his deposition along with plaint would unravel the following facts ;
1) Suit property is partnership property which is apparent from the reading of first paragraph of plaint "they were doing the business of selling of fruits and mangoes from the shop in question in the name and style of M/s Subhash Chander Satish Kumar, partnership firm" (Paragraph 1 of plaint and evidence by way of affidavit).
CS No. 9785/16 Satish Kumar vs Subhash Chander and ors Page No. 23 /312) Suit property i.e. "The said shop in question was allotted by Delhi Development Authority to M/s Subhash Chander Satish Kumar, which was a partnership firm run by the plaintiff and the defendant no.1. (Paragraph 2 of the plaint and evidence by way of affidavit)
3) Plaintiff is one of the partners and co- allottee of the shop and has a 50 % share in the suit property. (Paragraph 3 of the plaint and evidence by way of affidavit)
4) In the cross examination of plaintiff, Plaintiff had admitted registration certificate i.e. PW-1/D6 and in which name of other persons namely Subhash Chander, Mukesh Kumar and Smt Promila Devi apart from plaintiff was mentioned as partner of M/s Subhash Chander Satish Kumar.( PW-1/D6 records the name of four persons as partner of the firm).
41. It would be apt to refer and rely upon observation of Anil Saran Vs State of Bihar (1995) 6SCC412 cited on behalf of defendant that "Partnership firm is not a legal entity but a legal mode of doing business by all the partners. Until the firm is dissolved as per law and the accounts settled, all the partners have dominion in common over the property and funds of the firm. Only after the settlement of accounts and allotment of respective share, the partner becomes owner of his share."
CS No. 9785/16 Satish Kumar vs Subhash Chander and ors Page No. 24 /3142. As noted above, in view of the specific admission of the plaintiff that suit shop is a partnership property and accounts in between the partner are yet to be settled and there is no evidence on record to the effect that firm M/s Subhash Chander Satish Kumar was dissolved under the provisions of Partnership Act 1932. Once the partnership firm is not dissolved, a partner seeking recovery of possession on his own individual right to the extent of 50 % share is not possible as specific share is yet to be earmarked for that individual partner. Hence, plaintiff is yet to become owner to the extent of 50% as pleaded in the plaint.
43. Defendant no.1 took a stand in para no.5 and 6 of the Written Statement to the effect that after the death of the father of the defendant no.1 and plaintiff, other legal heirs i.e. three sons i.e. plaintiff, defendant no.1 and third son i.e. Mr Mukesh Sharma and mother of plaintiff arrived at a settlement dated 15.04.1996 in which it was agreed that house no. B-136 and suit shop was put in a pool and it was agreed that house bearing no. B-136 would be sold for Rs 53,00,000/- and value of the suit shop was put for Rs.10,00,000/- Rs 3,68,000/- which was standing in the name of the children of the defendant no.1 and his wife in the account books of M/s Girdhari Lal Khurana and Sons. It is the case of defendant no.1 that house and suit shop in question and other assets were assessed for CS No. 9785/16 Satish Kumar vs Subhash Chander and ors Page No. 25 /31 Rs.66,68,000/- and out of which, some amount was paid to the plaintiff and other persons. It was also agreed that the suit shop shall fall in the share of defendant no.1. It was also averred that by defendant no.1 that settlement dated 15.04.1996 was arrived peacefully between plaintiff and other family members.
44. In response to the plea taken by defendant No.1 in paragraph no.5 and 6 in the Written statement, Plaintiff admitted the settlement dated 15.04.1996 and further responded that settlement was not acted upon as defendant no.1 failed to make the payment and the settlement agreement does not stand in the eyes of law.
45. Stand was also taken in the replication that suit shop was not given exclusively to the defendant No.1 and it continued to be a partnership property as it was allotted in the name of partnership firm and name of other partners were included for the purposes of business in para no.1 of reply on merit of replication. Once again, Plaintiff took a stand that suit shop is a partnership property and thus, demolishing his own case that he has owner ship to the extent of 50 % share.
46. Relevant to note that in cross examination of Plaintiff/PW-1, plaintiff stated that partnership was formed in the year 1968 and in the year 1970, other persons were also added as CS No. 9785/16 Satish Kumar vs Subhash Chander and ors Page No. 26 /31 partner and in the year 1978, Mukesh Kumar was added as partner in the partnership. Perusal of Ex PW-1/D6, would show the name of partnership firm and name of all partners. No document was filed by plaintiff to the Registrar of firms that partnership was dissolved and suit shop exists in the name of plaintiff and defendant no. 1 only. There is no pleading and even nothing has come in the evidence that suit shop was purchased jointly by plaintiff and defendant no.1 in which plaintiff and defendant No.1 had 50 percent share in the suit shop and specific case of the plaintiff is that Suit shop is property of firm i.e. Satish Chander Subhash Chander.
47. PW-1/Plaintiff took a stand that on 17.12.1997, it came to his knowledge that defendant no.1 has forged and fabricated the documents such as Special Power of attorney (Ex.PW1/1) and GPA (Ex.PW1/3) and other documents by which 50 percent share in the suit shop was transferred to defendant no.1. PW-1 in this regard has relied upon FIR, Complaint and certified copy of report of Handwriting report as collected during the investigation of FIR No. 195/2009. Stand of Defendant No. 1 is that it was plaintiff who signed the documents, however defendant no.1 was proceeded ex parte during the trial and it was defendant no.6 who was effectively contesting the suit and as per defendant no. 6, suit shop came into his possession through previous chain of documents (unregistered) and during examination of PW-1, objection has been raised with CS No. 9785/16 Satish Kumar vs Subhash Chander and ors Page No. 27 /31 regard to mode of proof of all documents filed by plaintiff. It is relevant to mention that plaintiff took a stand that chain of documents as prepared by defendant no. 1 are forged and fabricated i.e Ex.PW1/1 and Ex.PW1/3 also receipt and agreement to sell vide Ex.PW1/7 however PW-1/Plaintiff did not pray for cancellation of chain of documents, although the case of plaintiff is to the effect that he became aware of the documents in 1997 and handwriting and finger expert report, FIR was registered against defendant no.1 and other chain of documentation by which suit shop came into the hand of defendant no.6.
48. Since it is the case of plaintiff that he became aware of the documents prepared by defendant no.1 in 1997 and handwriting and finger expert report was obtained in the year 1999 consequent to which FIR was registered against defendant no.1. Meaning thereby that plaintiff is aware about the documents such as GPA, SPA and Will dated 02.09.1997 and other documents were forged by defendant no.1, therefore, it was incumbent upon plaintiff to seek declaration of documents to the effect that documents are forged and fabricated however, no such prayer was made by the plaintiff in the suit. Even no witness was called by the plaintiff from the office of Sub-registrar to rebut the presumption that registered documents i.e power of attorneys were forged and fabricated. Plaintiff has merely filed the proceedings of the criminal case which was decided CS No. 9785/16 Satish Kumar vs Subhash Chander and ors Page No. 28 /31 against defendant no.1 by which he was convicted. It is a well settled law that a finding given by a Criminal court is not binding on the Civil Court and furthermore, plaintiff also did not take any steps to prove the handwriting expert report.
49. It was contended on behalf of the counsel for plaintiff that suit property cannot be transferred by unregistered documents. There is no doubt with regard to the proposition as advanced on behalf of the plaintiff but no benefit can be given to the plaintiff for the weakness in the case of defendant. Ultimately, the case of plaintiff has to stand on his own legs. It was pleaded by plaintiff that suit shop is a partnership property and since no separate rights accrued to the plaintiff in respect of the suit shop and therefore plaintiff can not seek exclusive possession to the extent of 50 % as prayed.
50. As discussed earlier since plaintiff has pleaded the suit shop as the property of the partnership firm and also took the stand that forged documents were prepared by defendant no.1 in the name of plaintiff. Thus plaintiff himself has created doubts with regard to his title in the suit shop.
51. At this stage, it is relevant to note the judgment of Anathula Sudhakar Vs. P. Buchi Reddy, AIR 2008 SC 2033, in CS No. 9785/16 Satish Kumar vs Subhash Chander and ors Page No. 29 /31 which it was held that the scope of Civil cases are circumscribed by limitation placed by the rules of pleadings, nature of relief claimed and the court fees paid. Perusal of the plaint and the evidence adduced on behalf of plaintiff would clearly depicts that plaintiff has not sought the declaration of the title and other allied relief and in the absence of such a prayer, relief of decree of possession can not be granted in favour of plaintiff.
52. In light of the aforesaid pleadings and statement of the plaintiff, once the suit shop is admitted to be a partnership property and there is no evidence/material to effect that said partnership has been dissolved claim of the plaintiff to the effect seeking decree of possession to the extent of 50 percent in suit shop is not maintainable as possession and allotment was made to the whole firm and once the assets of the firm has not been divided, it is extremely difficult to believe as to how specific 50% share could be earmarked to the plaintiff.
53. Since plaintiff has failed to prove his exclusive title qua the suit property, therefore, issue no.5 to 7 are decided against the plaintiff and in favour of defendants. Since plaintiff is not entitled for decree of possession so, grant of decree of mesne profit does not arise.
CS No. 9785/16 Satish Kumar vs Subhash Chander and ors Page No. 30 /3154. Relief.
In view of the findings recorded on issue no.5 to 7, the suit filed by plaintiff is dismissed. No order as to cost.
Decree sheet be prepared.
File be consigned to record room as per rules.
Announced in the Open Court on 31.01.2020 (Hasan Anzar) Additional District Judge-06 West District, THC CS No. 9785/16 Satish Kumar vs Subhash Chander and ors Page No. 31 /31