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1988 DIGILAW 372 (PAT)

Madan Chand Gulecha v. Surjan Singh Sadana And Sons

1988-11-18

SATYESHWAR ROY

body1988
Judgment Satyeshwar Roy, J. 1. A suit for eviction of opposite party Nos. 9 and 10 from a building was filed by opposite party No. 1(M/s. Surjan Singh Sadana and Sons), a registered partnership firm. During the pendency of the suit, opposite party Nos. 9 and 10 sub-let the suit premises to the petitioners and they were added as defendants in that suit (Title Suit No. 668 of 1.9G8). The suit was decreed by the trial court. Thereafter Madan Chand Gulecha and others (the tenants) filed Title Appeal which was registered as Title Appeal No. 50 of 1971. That appeal was dismissed. Thereafter the tenants filed second appeal being Second Appeal No. 19 of 1975 in this Court. As that was not pressed, it was dismissed. After dismissal of the title appeal, the firm filed Money Suit No. 222 of 1972 for recovery of arrears of rent. The suit was decreed and the amount was paid. 2. When the aforesaid title appeal was pending, the firm filed an application for execution of the decree. That was registered as Execution Case No. 421 of 1972. On 23-7-1975 a petition was filed on behalf of the Gulecha Brothers which was signed by Darsan Singh Sadana on one hand and Guman Chand Gulecha on the other. Darsan Singh signed it as a partner of the firm, namely, M/s. Surjan Singh Sadana and Sons. Darsan Singh, is opposite party No. 5 in this application. In that application, one of the terms was that the firm of Gulecha Brothers (petitioners herein) will remain in the suit premises as monthly tenant from July, 1975 on a monthly rent of Rs. 100. An objection was filed by opposite party Nos. 4 and 7, to that petition and they disputed the creation of tenancy in favour of Gulecha Brothers. On that very date another application was filed by opposite party No. 2 and 3 (Sushila Kaur and Pratap Singh) which was registered as Misc. Case No. 63 of 1976. By the order which is impugned in this application dated 4-12-1984, the court below refused to record that the decree had been adjusted in terms of the compromise petition filed on 23-7-1975. The compromise petition was rejected. 3. Mr. Case No. 63 of 1976. By the order which is impugned in this application dated 4-12-1984, the court below refused to record that the decree had been adjusted in terms of the compromise petition filed on 23-7-1975. The compromise petition was rejected. 3. Mr. N. K. Prasad, learned counsel for the petitioners, submitted that the execution petition filed by the firm, Surjan Singh Sadana and Sons, was signed by Darsan Singh, one of the partners. He, therefore, gave out that he was competent to represent the firm and on the basis of this, he urged, that since Darsan Singh signed the petition, the firm and all its partners were bound by it. The court below, according to him, was bound to record the adjustment and dismiss the execution case. Alternatively he urged that if the firm had been reconstituted, Darsan Singh became one of the co-sharers with regard to the property in suit and as there was no registered instrument by which he was divested of the title in the suit property he was competent to adjust the decree. 4. So far the second point urged by Mr. Prasad is concerned, no such case was made out by him in the court below. Even if it is held that in view of the stand taken by the contesting opposite parties that the firm had been reconstituted, but admittedly no registered instrument was executed with regard to the immovable properties, i. e. the suit properties, to the effect that Darsan Singh was divested of the title in the suit property and he continued to have interest in the same, the question is whether he alone as a co-sharer could have bound the other co-sharers. 5. The petitioners case of adjustment was based on the compromise petition filed on 23-74975 which was signed by Darsan Singh as a partner of M/s. Surjan Singh Sadana and Sons. According to the contesting opposite parties the firm had been reconstituted some time in the year 1972. The court below has accepted that case. If we accept that, it is clear that Darsan Singh could not have signed the compromise petition en behalf of M/s. Surjan Singh Sadana and Sons. That document, therefore is clearly a collusive document. According to the contesting opposite parties the firm had been reconstituted some time in the year 1972. The court below has accepted that case. If we accept that, it is clear that Darsan Singh could not have signed the compromise petition en behalf of M/s. Surjan Singh Sadana and Sons. That document, therefore is clearly a collusive document. Again, if it is held that Darsan Singh had any interest in the suit property and he continued to have interest in the same, because there was no registered instrument by which he was divested of the title in the suit property he was at best a co-sharer. The decree was there against the petitioners who as co-sharers without any authority from others could not have bound the other co-sharers so far the decree was concerned. The petitioners, therefore, were not entitled to take any advantage of the compromise petition on this ground also. 6. It was urged on behalf of the petitioners that as there has been non-compliance of the provisions of Section 72 of the Partnership Act, 1932 (the Act) ft inasmuch as there was no publication about the dissolution of the firm in terms of Section 72, the contesting opposite parties are not entitled to take advantage of the deed of dissolution of September, 1972. Even assuming that to be correct, the effect would be that Darsan Singh continued to be a partner of the firm (M/s. Surjan Singh Sadana and Sons). Sec.19(2) (c) and (g) of the Act provides that in absence of any usage or custom of trade 1o the contrary, the implied authority of a partner does not empower him to compromise or relinquish any claim or portion of a claim, by the firm and to transfer immovable property belonging to the firm. The lease in favour of the petitioners executed by Darsan Singh surely created interest in the immovable property. The decree which was in favour of the firm would not have been effected in any way by Darsan Singh alone. 7. For all the reasons aforesaid, the ultimate finding recorded by the court below that the decree has become not executable in view of the compromise petition dated 23-7-1975 cannot be interfered with. 8. In the result, I find no merit in this revision application and the same is dismissed with cost quantified at Rs. 500 (Rupees five hundred).