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2000 DIGILAW 685 (PNJ)

Saraswati Rice and General Mills v. Wazir Chand

2000-07-07

M.L.SINGHAL

body2000
JUDGMENT M.L. Singhal, J. (Oral) - Firm M/s. Saraswati Rice and General Mills, Ladwa Road, Pipli registered under the Indian Partnership Act with the Registrar of the Firms through its partner Shri Jatinder Kumar son of Shri Kanshi Ram instituted suit for declaration against Wazir Chand, Anshi Lal sons of Hardyal, Jai Bhagwan son of Jagat Ram and Kanchi Ram son of Hari Chand to the effect that the plaintiff firm is owner in possession of land measuring 37 kanal 3 marlas and that the defendants are lying shown in the revenue record wrongly. 2. It is alleged in the plaint that in the plaintiff-firm the partners are Jatinder Kumar, Brij Lal, Ravinder Kumar sons of Kanshi Ram. Land measuring 37 kanal 3 marla was initially owned by Wazir Chand and Anshi Lal. Kanshi Ram, Sat Parkash and Jai Bhagwan purchased share from Wazir Chand and Anshi Lal. After purchase, Wazir Chand, Anshi Lal, Kanshi Ram, Jai Bhagwan and Sat Parkash became owners and their shares were as follows :- (i) Wazir Chand and Anshi Lal 6 Annas (ii) Kanshi Ram 6 Annas (iii) Jai Bhagwan and Sat Parkash 4 Annas. 3. It is further alleged in the plaint that Anshi Lal transferred his share in the land to Wazir Chand at a family settlement brought about in the year 1966. As a result of that family settlement, Wazir Chand became owner to the extent of 6 Annas share. In the year 1966, firm M/s. Wazir Chand Jai Bhagwan was constituted. In the said firm, Wazir Chand, Kanshi Ram, Jai Bhagwan and Sat Parkash became partners. Land measuring 37 kanal 3 marlas (ibid) was put into the common hotch potch and it became the property of firm M/s. Wazir Chand Jai Bhagwan. Firm M/s. Wazir Chand Jai Bhagwan started using the suit property as Fad for drying paddy etc. Main business of the firm M/s. Wazir Chand Jai Bhagwan was to purchase paddy, shelling and purchase and sale of rice etc. Partnership deed was constituted between the partners in the year 1986 comprising firm M/s. Wazir Chand Bhagwan Dass. In the year 1970, Sat Parkash retired after settling the accounts with other partners. New firm was constituted with the same name. Share of Sat Parkash was acquired by his brother Jai Bhagwan. In the year 1976, the firm Wazir Chand Jai Bhagwan was dissolved. In the year 1970, Sat Parkash retired after settling the accounts with other partners. New firm was constituted with the same name. Share of Sat Parkash was acquired by his brother Jai Bhagwan. In the year 1976, the firm Wazir Chand Jai Bhagwan was dissolved. Assets of the firm including land fell in the share of Kanshi Ram. Kanshi Ram constituted new firm in the name of M/s. Saraswati Rice and General Mills which was registered with the Registrar of Firms in the year 1976. Kanshi Ram, Brij Lal and Devinder Kumar became partners. Partnership deed was executed between them. Aforesaid land along with certain other property was put into common hotch potch and it became the property of M/s. Saraswati Rice and General Mills. On 30.9.1986 firm M/s. Saraswati Rice and General Mills was dissolved and a new firm in the name of M/s. Saraswati Rice and General Mills was constituted on 1.10.86. Share of Kanshi Ram in firm M/s. Saraswati Rice and General Mills was acquired by Jatinder Kumar son of Kanshi Ram. M/s. Saraswati Rice and General Mills with its partners became absolute owner of the aforesaid land along with other property. Aforesaid land was initially owned and possessed by firm M/s. Wazir Chand Jai Bhagwan from the year 1966 to 1976 and thereafter remained under the possession of the plaintiff-firm. It also remained under the ownership of the plaintiff-firm since the year 1976. Defendants have no concern with the aforesaid land. In the year 1970, Sat Parkash one of the partners retired from the partnership firm M/s. Wazir Chand Jai Bhagwan after settling the accounts with other partners of the firm and the new firm with the same name was constituted with the remaining partners and the share of Sat Parkash was acquired by his brother Jai Bhagwan after the retirement of Sat Parkash. The firm was reconstituted and Wazir Chand, Jai Bhagwan, Kanshi Ram became partners in firm M/s. Wazir Chand Jai Bhagwan and their shares were as follows :- i) Wazir Chand 37-1/2 paise ii) Kanshi Ram 37-1/2 paise iii) Jai Bhagwan 25 paise 4. Partnership deed executed between the partners of M/s. Wazir Chand Jai Bhagwan was reconstituted. The firm was reconstituted and Wazir Chand, Jai Bhagwan, Kanshi Ram became partners in firm M/s. Wazir Chand Jai Bhagwan and their shares were as follows :- i) Wazir Chand 37-1/2 paise ii) Kanshi Ram 37-1/2 paise iii) Jai Bhagwan 25 paise 4. Partnership deed executed between the partners of M/s. Wazir Chand Jai Bhagwan was reconstituted. In the year 1976 the firm M/s. Wazir Chand Jai Bhagwan was dissolved and the assets of the firm including the land aforesaid fell to the share of Kanshi Ram and Kanshi Ram became absolute owner of the sheller as well as the aforesaid land. Defendants tried to dispossess the plaintiff-firm from this land asserting that they are still owners of the land the same is shown as owned by the defendants in the revenue record wrongly. Defendants 1 to 4 admitted the claim of the plaintiffs in the written statement. They made statement on 10.5.88 also admitting the claim of the plaintiffs. Plaintiffs made an application under Order 12 Rule 6 CPC whereby they prayed that their suit be decreed against defendants 1 to 4 in view of the admission of their claim by them in their written statement plus the admission of their claim by them in the statement made by them before the court on 10.5.88. 5. In the suit originally framed, defendants 5 and 6 i.e. Deepa Gupta daughter of Sat Parkash and Sat Parkash were not impleaded. Deepa Gupta and Sat Parkash sought their impleadment in the suit under Order 1 Rule 10 CPC. They were allowed to intrude into the suit under Order 1 Rule 10 CPC and they are defendants 5 and 6. Aforesaid prayer of the plaintiffs that their suit be decreed against defendants 1 to 4 in view of the admission of their claim by them in their written statement and further in the statement made by them before the court was contested by defendants 5 and 6. It was pleaded by them that the plaintiffs claim cannot be decreed against defendants 1 to 4 in collusion with them and that is why they arraigned only defendants 1 to 4 and did not arraign defendants 5 and 6. It was submitted by defendants 5 and 6 that the plaintiffs did not implead them as "party" though they also have an interest in the subject matter of the suit. It was submitted by defendants 5 and 6 that the plaintiffs did not implead them as "party" though they also have an interest in the subject matter of the suit. Court allowed them to be impleaded because the court felt that their presence was necessary for the just and fair decision of the case. It was further submitted that the suit property is owned and possessed by all the defendants as the same is joint property and in case the suit of the plaintiff is decreed against defendants 1 to 4, complications will arise at the time of final disposal of the suit. 6. Subordinate Judge First Class, Kurukshetra vide order dated 10.9.91 dismissed the application filed by the plaintiffs under Order 12 Rule 6 CPC. It is this order which has been called in question through this revision. 7. Defendants 5 and 6 contested the suit of the plaintiff urging that they are also one of the co-sharers in the property and the business and they have got right to share the property and business. It was further submitted by them that as co-sharers, they are owners in every inch of the land jointly owned till it is partitioned. Plaintiffs want to grab their share. 8. When this was the plea of defendants 5 and 6 that they are co-sharers in the property and business, how could the court decree the suit of the plaintiffs against defendants 1 to 4. If the suit were decreed against defendants 1 to 4, that could have given rise to complication while adjudicating the plea of the defendants 5 and 6 which is that they are co- sharers in the property and business. It was in the discretion of the court whether to pass decree against defendants 1 to 4 on their admission as to the claim of the plaintiffs particularly when defendants 5 and 6 were laying equal claim to the property and the business. Even otherwise, if the court has not passed decree in favour of the plaintiffs against defendants 1 to 4, the plaintiffs may, if possible, take advantage of the admission of defendants 1 to 4 at the time of the final disposal of the suit. Order accordingly.