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2012 DIGILAW 252 (KAR)

M. R. Sampath Iyengar v. M. R. Ramaswamy Iyengar

2012-03-19

H.G.RAMESH

body2012
Judgment :- This is a plaintiff’s second appeal. Suit was filed by the plaintiff in OS 366/1995 for permanent injunction against the defendant who is none other than his brother. According to the plaintiff, there were two bakeries – one at Hassan and another at Belur. The bakery run at Belur was given to the defendant and the bakery run at Hassan was reconstituted by way of partnership by the plaintiff and his father and the 1st defendant is an attesting witness for the reconstituted partnership firm/bakery run at Hassan. It is stated, on such reconstitution, business was being run by the father of the plaintiff and himself and the 1st defendant has come out of it. It transpires, the defendant also filed a suit for partition against the brother who is the plaintiff herein and the suit has been decreed as against which, the appeal filed by the plaintiff herein is pending and that is a separate proceeding. In the case on hand, as it transpires according to the averment in the plaint, the bakery at Hassan was established under the partnership of plaintiff, defendant and his father on 1.4.1968. On 1.4.1990, defendant retired from the business taking back his share capital of the building and the profits up to that date. Thereafter, the plaintiff and his father continued the business in the schedule shop. The plaintiff’s father died on 5.9.1994 leaving the business and the suit property entirely for the ownership and possession of the plaintiff. According to the plaintiff, he continued in business without any interruption and is also paying the taxes. But defendant started interfering with his right, title and possession. According to the plaintiff, his father late Ramanuja Iyengar executed a Will on 13.9.1994 in the presence of witnesses bequeathing his rights in the partnership firm i.e., the bakery at Hassan, entirely to the plaintiff as such, plaintiff has become the absolute owner and defendant does not have any right. The suit was contested denying all the averments made in the plaint. On the other hand, it is contended, the Will is concocted and rather the plaintiff himself is preventing the defendant from participation on the death of their father. It is also the specific case of the defendant that he has never taken share from the partnership firm nor has he retired from the partnership. On the other hand, it is contended, the Will is concocted and rather the plaintiff himself is preventing the defendant from participation on the death of their father. It is also the specific case of the defendant that he has never taken share from the partnership firm nor has he retired from the partnership. Based on the pleadings, five issues were framed by the trial court. Ultimately, while answering the relevant issues, the suit of the plaintiff for a permanent injunction came to be dismissed holding that the plaintiff failed to prove his lawful possession exclusively and also failed to prove obstruction. The appeal before the Addl. District Judge/Fast Track Court III, Hassan in RA 129/2005 against the order of dismissal also came to be dismissed. Hence, this second appeal. In a concurrent finding, both the courts below refused to grant injunction against the defendant on the ground that the suit for injunction is not maintainable against a co-owner. The stand of the appellant is, since the defendant went out of the partnership and thereafter, it was reconstituted for which the defendant is a signatory, it is his exclusive business after the death of his father and defendant is interfering with his possession. In this regard, in the second appeal filed against the concurrent finding, on 26.6.2008 substantial question of law raised is as to – Whether the courts below were justified in declining to grant the relief to the appellant on the ground that against a co-owner no injunction can lie despite the appellant establishing that he is in exclusive possession of the suit schedule property. Further, an order of status quo has also been granted. Heard the counsel representing the parties. Appellant’s counsel has relied upon the decision of the Apex Court in the case of T Lakshmipathi & Ors Vs P Nithyananda Reddy & Ors – (2003) 5 SCC 150 wherein it is held, a co-owner may by an arrangement, expressed or implied, with his other co-owners, possess and enjoy any property exclusively. Such a co-owner can also protect his possession against the other co-owners and if he is dispossessed by the latter, he can recover exclusive possession. Such a co-owner can also protect his possession against the other co-owners and if he is dispossessed by the latter, he can recover exclusive possession. In the case of Sant Ram Nagina Ram Vs Daya Ram Nagina Ram – AIR 1961 Punjab 528, the Division Bench of the Punjab High Court has held, where a co-owner is in possession of separate parcels under an arrangement consented to by the other co-owners, it is not open to anyone to disturb the arrangement without the consent of others except by filing a suit for partition. Further, it is held the remedy of a co-owner not in possession, or not in possession of a share of the joint property, is by way of a suit for partition or for actual joint possession but not for ejectment. Same is the case where a co-owner sets up an exclusive title in himself. Counsel for the appellant tried to insist upon Ex.P1-alleged partnership reconstitution deed and also Ex.P26 – alleged Will. So far as the Will is concerned, it has not been pleaded at the inception and subsequently, it has been pleaded. However, no issue has been framed in this regard. But the fact remains, in a suit for injunction, some semblance of document of proof for exclusive possession is needed. The contention of the plaintiff is, under the reconstituted partnership he and his father continued the business exclusively and defendant has no right, which the defendant has denied. However, the fact is, there was some arrangement made and the bakery run at Belur was given to the defendant, which he has admitted. It is seen, the defendant also filed a suit for partition and separate possession and it has been decreed in favour of the defendant as against which, the plaintiff has filed an appeal disputing the right, title and share of the defendant. The rights would be finally determined by the appellate court or thereafter, before any other forum. But, so far as grant of status quo order by this Court at the time of admission is concerned based on the pleadings of the plaintiff that he is in exclusive possession and partnership was re-constituted, it would be subject once again, on proving the case and the suit filed for partition by the defendant reaching finality. But, so far as grant of status quo order by this Court at the time of admission is concerned based on the pleadings of the plaintiff that he is in exclusive possession and partnership was re-constituted, it would be subject once again, on proving the case and the suit filed for partition by the defendant reaching finality. Since the share of the defendant has been identified in the suit filed by the defendant himself and the right has been asserted from the date of the suit filed by the defendant for partition, as to his right if any, available as per the finding of the courts below in a separate proceeding, the plaintiff herein has to account for it. Even if the plaintiff is permitted to run the business exclusively, he has to maintain the accounts and it is also subject to the result of the suit for partition filed by the defendant. Subject to furnishing of accounts from the date of filing of the suit for partition by the defendant this appeal is disposed of allowing the plaintiff to continue in exclusive possession and thereafter, on the dispute/matter reaching finality, it is for him to abide by the result of the parallel suit pending for partition. It is also made clear that the plaintiff has to maintain accounts meticulously. While answering the substantial question of law accordingly, the appeal is disposed of. The parties shall co-operate for early disposal of the appeal pending before the lower appellate court which shall be disposed of in six months. No order as to costs.