Judgment : Ashis Kumar Chakraborty, J. This second appeal, at the instance of a defendant, is directed against the judgment and decree dated December 15, 2009 passed by the learned Additional District Judge, 1st Court, Howrah in Title Appeal no. 69 of 2010 affirming the judgment and decree passed the learned Civil Judge, (Junior Division), 3rd Court, Howrah in Title Suit No. 193 of 2003. The respondent nos. 1 and 2 in this appeal filed the title suit agaithe sole defendant, being the appellant in this appeal, but, subsequently added some other defendants without claiming any relief against them. The said added defendants are the proforma respondent nos. 3 to 5 in this appeal but any reference to them is not required in this appeal. For the sake of convenience, the parties are referred to in this judgment as per their array in the trial Court. In the title suit, the plaintiffs claimed declarations that they are the partners of the partnership firm namely ‘Rishav Builders’ described in schedule “A” to the plaint, (hereinafter referred to as “the partnership firm”) in respect of premises no. 16A, Round Tank Lane, Ramkrishnapur, Howrah, described in schedule “B” to the plaint (hereinafter referred to as “the suit property”) and that the resolution of minutes of the partnership firm dated April 07, 2002 in respect of the suit property is binding upon the defendant and a decree for permanent injunction restraining the defendant from claiming any share towards the profits of the partnership firm in respect of the suit property. Both the learned Courts below concurrently decreed the suit in favour of the plaintiffs and declared that they are partners of the partnership firm in respect of the suit property and the resolution and minutes of the said partnership firm in respect of the suit property dated April 07, 2002 that the defendant retired from the business of the partnership firm is binding upon him. A decree was also passed permanently restraining the defendant from claiming any share towards the profits of the said partnership firm in respect of the suit property. In the plaint, the plaintiffs alleged that in terms of registered deed of partnership dated August 18, 1996 they along with the defendant constituted the partnership firm for carrying on business, inter alia, of construction and promoting properties. The business of the partnership firm commenced on and from April 01, 1996. In the plaint, the plaintiffs alleged that in terms of registered deed of partnership dated August 18, 1996 they along with the defendant constituted the partnership firm for carrying on business, inter alia, of construction and promoting properties. The business of the partnership firm commenced on and from April 01, 1996. Each of them has 40% share in the firm and the defendant has 20% share in the firm. The firm purchased the suit property, demolished its existing structure and developed the property by constructing a multistoried building. The project for development of the suit property was a joint venture agreement between the partners of the firm. By a resolution dated May 07, 2002 as recorded in the minutes of the firm, it was resolved between the partners of the firm, that although the joint venture project at the suit property was not yet completed but as on February, 2002, the firm was in profit of Rs. 13,84,031/-, as per the partnership deed the 20% share of the defendant in such profit stood at Rs. 2,76,807/- and the defendant relinquished his 20% share in the firm in respect of the said joint venture project of the suit property, which was accepted by them and with effect from April 07, 2002 the defendant retired from the said joint venture project of the firm in respect of the suit property. The plaintiffs further alleged that in order to corroborate the said resolution dated April 07, 2002, the defendant also made a declaration in writing to the effect that he had voluntarily retired from the joint venture project of the suit property. However, in spite of retiring from the joint venture project of the partnership firm in respect of the suit property, the defendant started to illegally claim share from the rental income of the suit property. On the basis of those allegations the plaintiffs claimed the afore- mentioned reliefs, in the suit, against the defendant. The defendant, however, in his written statement alleged that the suit was not maintainable on various grounds. He alleged that the suit is barred by Section 34 of the Specific Relief Act, 1963 and Section 69 of the Partnership Act, 1932. The defendant made a specific averment in the written statement, that he along with his family members are in khas possession of the ground floor, the fourth floor and the fifth floor of the suit property. He alleged that the suit is barred by Section 34 of the Specific Relief Act, 1963 and Section 69 of the Partnership Act, 1932. The defendant made a specific averment in the written statement, that he along with his family members are in khas possession of the ground floor, the fourth floor and the fifth floor of the suit property. He denied to have resigned from the business of the partnership firm. He further alleged that the plaintiff no. 1 retired from the partnership firm on November 11, 1999 and on April 07, 2002 there was a resolution of the remaining partners of the partnership firm and by such resolution the plaintiff no. 2 retired from the partnership business and as such the partnership firm became the sole proprietorship firm of himself. The defendant had also alleged that he inspected the copies of the partnership deed dated August 28, 1996, the alleged resolution of the firm dated April 07, 2002 and alleged declaration dated April 07, 2002 and another resolution dated April 07, 2014 all disclosed the plaintiffs and except the partnership deed dated August 28, 1996, all the said remaining documents are all manufactured or forged documents and the signature of Sri Jagadamba Singh appearing on the said documents except the partnership deed, are not his signatures. Various documents were disclosed on behalf of the plaintiffs and the defendant in support of their respective cases in the suit. On the basis of the averments contained in the plaint and in the written statement, the learned trial Court framed the following issues: 1. Is the suit maintainable in the present from and prayer? 2. Is the suit business namely, Rishav Builders a proprietorship firm of the defendant no. 1? 3. Have the plaintiffs retired from the firm Bishav Builders? 4. Are the plaintiffs still partners of Rishav Builders? 5. Are the plaintiffs entitled to a decree for declaration as prayer for? 6. Are the plaintiffs entitled to a decree for permanent injunction as prayed for? 7. To what other relief are the plaintiffs entitled to? In the suit, the plaintiff no. 2 adduced evidence for himself and on behalf of the plaintiff no. 1, as PW-1. 5. Are the plaintiffs entitled to a decree for declaration as prayer for? 6. Are the plaintiffs entitled to a decree for permanent injunction as prayed for? 7. To what other relief are the plaintiffs entitled to? In the suit, the plaintiff no. 2 adduced evidence for himself and on behalf of the plaintiff no. 1, as PW-1. Since the plaintiffs denied and disputed the signatures on certain documents produced by the defendant, the said documents were sent to the handwriting expert who filed his report before the trial Court and also adduced evidence as PW-2. On behalf of the defendant, he himself adduced evidence as DW-1. Further one Rajkumar Gupta and two advocates namely, Shyamal Kumar Mitra and Tarun Kumar Basu also adduced evidence on behalf of the appellant as DW- 2, DW-3 and DW-4 respectively. In order to prove their claims in the suit, the plaintiffs filed various documents, including the certified copy of the partnership deed, (Exbt.-“1”), the minutes of the meeting dated April 07, 2002 of the partnership firm that the defendant relinquished his share in the joint venture project of the partnership firm in respect of the suit property (Exbt.-“2”), the declaration of the defendant that he has relinquished his 20% share from the joint venture project of the partnership firm in respect of the suit property (Exbt.-“3”). The plaintiffs also disclosed the minutes of a meeting dated April 07, 2002 recording retirement of the plaintiff no. 2 himself, from the business of the partnership firm in respect another property at 69/1, Desh Pran Sashmal Road, Howrah (Exbt. “4”) and the report of the handwriting expert (Exbt.-“5”). They also disclosed certified copies of four transfer deeds bearing nos. 2207, 3525, 2525, 4768, 4727 and 3194 for transfer of various flats constructed by the partnership firm in the year 20002001which were marked as Exbts.- “16” to “16-D”. All the said conveyances were signed by both the plaintiffs as also by the defendant as partners of the firm. Apart from the said documents, plaintiffs disclosed various other documents in the suit, but those were not considered by the learned Courts below in their impugned judgments. The defendant also disclosed and exhibited various documents. However, the documents which were considered by both the learned Courts below, in their judgments under challenge are agreement dated January 17, 2001, the deed of reconstitution after alleged retirement of the plaintiff no. The defendant also disclosed and exhibited various documents. However, the documents which were considered by both the learned Courts below, in their judgments under challenge are agreement dated January 17, 2001, the deed of reconstitution after alleged retirement of the plaintiff no. 2 (Exbt. - ‘A’), certified copy of the partnership deed dated August 28, 1996 (Exbt.-‘M’), xerox copy of the letter of retirement dated July 07, 1998 of the plaintifft no. 2 (Exbt.-‘N’, with objection), partnership deed dated February 07, 2001 between the defendant and the plaintiff (Exbt. ‘O’, with objection), minutes of the meeting dated April 07, 2002 that plaintiff no. 2 retired from the partnership firm (Exbt.-‘P’, with objection), additional resolution dated April 07, 2002 that the plaintiff no. 2 retired from the partnership firm [Exbt.-P(1), with objection]. Since both the plaintiffs disputed their respective signatures on the said documents, being Exbts. “N”, “O” and “P” the said documents were sent to the handwriting expert to ascertain the authenticity of the signatures of the plaintiffs. The report of the handwriting expert was that the signatures of the respective plaintiffs, in the said documents were not their original signatures and the said report was marked as Exbt.-5. At this juncture, it may be noted that the said Exbts. “N”, “O” and “P” were also marked as Exbts. “8”, “9” and “10” (all with objections), during the cross-examination of the PW-1. After considering the pleadings and evidence adduced by the plaintiffs and the defendant while dealing with the Issue No. 1, the learned trial Judge held that the suit was maintainable in its present form and prayer. The learned trial Judge further held that the plaintiffs the cause of action to institute the suit against the defendant. However, there was no finding of the learned trial Judge with regard to the maintainability of the suit either on the ground of Section 69 of the Partnership Act or on the ground of Section 34 of the Specific Relief Act. With regard to the Issue nos. 2, 3 and 4, the learned trial Judge held that the plaintiffs had denied their signature on the Exbts. With regard to the Issue nos. 2, 3 and 4, the learned trial Judge held that the plaintiffs had denied their signature on the Exbts. “8”, “9” and “10” produced by the defendant, those documents were referred to the handwriting expert who in his report stated that the signatures in those documents are not the original signatures of the plaintiffs; the handwriting expert was rigorously cross-examined by the advocate of the defendant and his report could not be proved to be wrong. Since the documents marked as Exbts. “8”, “9” and “10” were the foundation of the defendant’s claim that the plaintiffs had retired from the partnership firm and thereafter, the partnership firm became a sole proprietorship firm of his own. The learned trial Judge held that the defendant miserably failed to prove the retirement of the plaintiffs from the partnership firm and that the plaintiffs have proved the Exbts.- “1”, “2” and “3”. Based on such findings the learned trial Judge decided the Issue nos. 2, 3 and 4, that is, whether the said partnership firm became the proprietorship firm of the defendant, whether the plaintiffs retired from the firm and whether plaintiffs are the partners of the firm against the defendant. With regard to the Issue nos. 5, 6 and 7, the learned trial Judge held that since Exbt.-“2” had already been adjudicated in favour of the plaintiffs and as such Exbt.-“2” is no doubt the document by which the defendant retired from the partnership firm by making a declaration also on the same date, that is, Exbt.-“3” and decided the said issues in favour of the plaintiffs and decreed the suit declaring that the plaintiffs are the partners of the partnership firm having 50% share each and that the resolution the minutes of the meeting dated April 07, 2002 is binding upon the defendant and passed a decree for permanent injunction restraining the defendant claiming any share towards the profit of the partnership firm being schedule “A” to the plaint in respect of the suit property being schedule B to the plaint. Against the judgment and decree of the learned trial Judge, the defendant preferred an appeal before the lower appellate Court. Against the judgment and decree of the learned trial Judge, the defendant preferred an appeal before the lower appellate Court. In his memorandum appeal the defendant, apart from taking other grounds, assailed the judgment and decree of the trial Judge also on the grounds that the suit was barred by the Proviso to Section 34 of the Specific Relief Act, and Section 69 of the Partnership Act. Before the lower appellate Court, the defendant filed two separate applications under Order XL1 Rule 27 of the Code to disclose certain documents. However, without any decision on the said two applications under Order XL1 Rule 27 of the Code of Civil Procedure, the lower appellate Court passed the impugned judgment and decree. Even in the judgment of the lower appellate Court there is no finding on the objection raised by the defendant with regard to the maintainability of the suit on the grounds that the firm was not a registered partnership firm and that the plaintiffs have not claimed the consequential relief for recovery of possession of portion of the suit property from him. By the impugned judgment the lower appellate Court upheld the findings of the trial Judge both on facts and the evidence adduced by the parties and upheld the judgment and decree passed by the trial Judge. By an order dated June 10, 2014 while admitting the second appeal the Division Bench directed that this appeal shall be heard on the following substantial question of law: (i) Whether registration of a partnership firm is condition precedent for implementation of an arbitration clause in the partnership agreement between the partners? (ii) Whether the Courts below erred in law substantially in holding that the arbitration clause could not be implemented, as the partnership firm was not registered? (iii) Whether any one partner of a partnership firm can retire from a single joint venture project involving the partnership firm or for that matter, from some projects involving the partnership firm? (iv) Whether the first appellate Court substantially erred in law in disposing of the appeal without disposing of the two applications under Order XL1 Rule 27 of the Code of Civil Procedure filed by the appellants which had been heard at length and without making any reference to the said applications in the judgment and order under appeal? (iv) Whether the first appellate Court substantially erred in law in disposing of the appeal without disposing of the two applications under Order XL1 Rule 27 of the Code of Civil Procedure filed by the appellants which had been heard at length and without making any reference to the said applications in the judgment and order under appeal? (v) Whether the finding of the Courts below that the appellant retired from the partnership firm upon purported reliance of the minutes of the meeting dated 7th April, 2002 is patently perverse and thus, substantially erroneous in law? Subsequently, at the time of hearing of this appeal by an order dated August 13, 2015, the following substantial questions of law were also framed. (i) Whether the Court below substantially erred in law in not rejecting the suit filed by the plaintiffs respondents as being barred by Section 69 of the Partnership Act? (ii) Whether the Courts below substantially erred in law in not rejecting the relief prayed for by the plaintiffs respondents for declaration in absence of any prayer for consequential relief? So far as the first and second substantial questions of law framed by the Division Bench at the time of admission of appeal, the same relates to the applicability of the arbitration clause in the partnership agreement between the partners. However, the defendant could not substantiate that he filed any application under Sections 5 and 8 of the Arbitration and Conciliation Act, 1996 before the learned trial Court. Thus, the defendant cannot urge any ground in the second appeal on the basis of any arbitration clause in the partnership agreement between the partners. So far as the third substantial question of law framed by the Division Bench, that is, whether any one partner of a partnership firm can retire from a single joint venture project involving the partnership firm or for that matter, from some projects involving the partnership firm, no submission was made on behalf of the defendant at the time of hearing of the appeal. Mr. Mr. Mukherjee, learned Senior Advocate, appearing in support of the appeal submitted that the defendant had filed two applications before the lower appellate Court under Order XL1 Rule 27 of the Code for disclosure of additional documents and from the order-sheet of the lower appellate Court it is evident that it was directed that both the said applications shall be heard at the time of hearing of the main appeal. According to him, both the said applications were heard by the lower appellate Court at the time of hearing of the appeal but the learned lower appellate Court dismissed the appeal filed by the defendant without deciding the said applications filed by the defendant. In the said applications under Order XL1 Rule 27 of the Code, the defendant had prayed for leave to produce the original purchase deed of the suit property and the certified copy of the judgment dated 03.12.2005 passed by the learned District Judge in Misc. Appeal No. 143 of 2005. According to him, the impugned judgment and decree passed by the learned lower appellate Court without deciding the said applications filed by the defendant under Order XL1 Rule 27 of the Code is vitiated by error of law and on this ground the impugned judgment and decree passed by the lower appellate Court is liable to be set aside. Mr. Mukherjee strenuously contended that the plaintiffs’ suit was barred by Section 69 of the Partnership Act, 1932 as also by the Proviso to Section 34 of the Specific Relief Act. He submitted that though the deed of partnership may be a registered document but the said partnership firm has not been registered with the Registrar of firms, under the Partnership Act. He further submitted from the averments of the plaint in the title suit it is evident that the relief claimed by the plaintiffs in the suit against the defendant is based on the contract of partnership agreement dated August 18, 1996 and since in the plaint there was no statement that the partnership firm is a registered partnership firm, the suit was not maintainable in view of Section 69 of the Partnership Act, 1932. He further submitted that in the written statement the defendant alleged that the suit is hit by Section 69 of the Partnership Act but both the learned Courts below committed an error of law by not dismissing the suit on the ground of being barred by Section 69 of the Partnership Act. In support of his contention, Mr. Mukherjee cited the decisions of the Division Bench of this Court in the case of Guno Prosad Kundu vs. Abhoy Hari Sreemani reported in 52 CWN 15, in the matter of Abani Kanta Pal reported in AIR 1986 Cal 143 and the decision of the Supreme Court in the case of Seth Loonkaran Sethiya vs. Ivan E. John reported in (1977) 1 SCC 379 . The next contention of Mr. Mukherjee was that in the written statement, the defendant alleged that the suit is hit by Section 34 of the Specific Relief Act, and that he and his family members are in khas possession of the entire ground floor, fourth floor and fifth floor of the suit property, that is 16, Round Tank Lane. In his evidence, the plaintiff no. 2, (PW-1) himself admitted the factum of the possession of the defendant in respect of the said ground floor, fourth floor and fifth floor of the suit property, but in the suit the plaintiffs did not seek any further relief for recovery of possession of the suit property belonging to the partnership firm, from the defendant. Thus, he urged that the decree for declaration claimed by the plaintiffs in the suit was barred by proviso to Section 34 of the Specific Relief Act and both the learned Courts below fell into an error of law by passing the decree for declaration as prayed for by the plaintiffs. In support of such contention, Mr. Mukherjee relied on the decision of the Supreme Court in the case Union of India vs. Ibrahim Uddin reported in (2012) 8 SCC 148 and the decision of a learned Single Judge of this Court in the case of Sunil Baran Dutta vs. Kamala Bala Dutta reported in 2013 (4) CHN (Cal) 281. Mr. In support of such contention, Mr. Mukherjee relied on the decision of the Supreme Court in the case Union of India vs. Ibrahim Uddin reported in (2012) 8 SCC 148 and the decision of a learned Single Judge of this Court in the case of Sunil Baran Dutta vs. Kamala Bala Dutta reported in 2013 (4) CHN (Cal) 281. Mr. Mukherjee further urged that the finding of both the learned Courts below that the defendant has retired from the business of the suit firm in respect of the suit property and that the resolution dated April 07, 2002 relied by the plaintiffs is binding upon the defendant is patently perverse. According to him, even if it is accepted for the sake of argument, that the defendant could not prove the documents relied upon by him being Exbts. – “N”, “O” and “P” in support of his case that by a resolution dated April 07, 2002 the plaintiff no. 2 had retired from the partnership firm with effect from April 7, 2002 and that the said firm became his own proprietorship firm, even then, in paragraph 17 of his written statement, the defendant categorically stated that the documents relied upon by the plaintiffs, which were subsequently, marked as Exbts. “2”, “3” and “4” were manufactured documents and the signature of Jagadamba Singh appearing in those documents are not his signatures. Mr. Mukherjee relied on the examination-in-chief of the defendant on June 26, 2007 when he specifically stated that those documents, that is Exbts. “2”, “3” and “4” do not contain his signature and the signatures purported to be there, on those documents, are not his signatures. He pointed out that during the cross-examination the defendant, no question was put to him to dispute his evidence in examination-in-chief that signatures appearing on the said documents being the said documents Exbts. “2”, “3” and “4” are not his signatures. Relying on the decision of the Supreme Court in the case of Thiruvengada Pillai vs. Navaneethammal reported in AIR 2008 SC 1541 , he submitted that in this case when the defendant denied the genuineness of the documents Exbts. – “2”, “3” and “4” the burden was on the plaintiffs to prove that those documents were signed by the defendant and not on the defendant to prove the negative, but in the instant case the plaintiffs failed discharge such onus. Thus, according to Mr. – “2”, “3” and “4” the burden was on the plaintiffs to prove that those documents were signed by the defendant and not on the defendant to prove the negative, but in the instant case the plaintiffs failed discharge such onus. Thus, according to Mr. Mukherjee, the judgments passed by both the learned Courts below that the plaintiffs have proved the documents Exbt. “2” and “3” is vitiated by misconception of evidence resulting in perversity and an error of law. According, Mr. Mukherjee in any event, when there was no cross-examination, not even a suggestion put to the defendant disputing his statement that the said documents being Exbts. “2”, “3” and “4” did not contain his signature, the plaintiffs shall be deemed to have accepted such statement of the defendant. In support of such contention, he relied on the Division Bench decision of this Court in the case of A.E.G. Carapiet vs. A.Y. Derderian reported in AIR 1961 Cal 359 . On the contrary, Mr. Aniruddha Chatterjee, learned counsel opposing the second appeal on behalf of the plaintiffs strenuously contended that the judgments and decrees passed by the learned Courts below suffer from any infirmity in law and as such the second appeal is liable to be dismissed. So far as the contention of the defendant that the first appellate Court committed in error of law by not deciding any of the two applications filed by the defendant under Order XL1 Rule 27 of the Code, Mr. Chatterjee submitted that from the impugned judgment of the first appellate Court, it would appear that the defendant did not press any of their said two applications at the time of hearing of the appeal. He further submitted that in any event, the said two applications of the appellant under Order XL1 Rule 27 of the Code were absolutely non-meritorious, as the documents which the defendants sought to bring on record were not germane to the issues involved in the first appeal and the defendant could not satisfy that the said documents were not within their knowledge or he could not, after exercise of due diligence, produce the said documents before the trial Court. Relying on an order dated July 06, 2015 passed by the Division Bench of this Court in G.A. 699 of 2004, G.A. 1445 of 2005, G.A. 1584 of 2005, G.A. 2306 of 2006, C.S. 662 of 1991, APO 74 of 2004 (Manabendra Banerjee vs. Raj Kumar Rawala), Mr. Chatterjee submitted that to cut short the litigation this Court hearing the second appeal has the power to dismiss the said applications under Order XL1 Rule 27 of the Code, if it is found that the said applications are not necessary and the documents are not germane for determining any issue. He argued that the contention raised by the defendant that the suit was barred by Section 69 of the Contract Act is an issue involving mixed question of fact and law, the defendant did not raise such plea before the learned Courts below, he had willfully abandoned such plea before the learned Courts below and as such the defendant is now barred under law to take such a plea based on fact in the second appeal. In support of such contention, Mr. Chatterjee relied on the decision of the Division Bench of the Madras High Court in the case of N.A. Munavar Hussain vs. E.R. Narayanan reported in AIR 1984 Madras 47 (para-17). In the said case the plea of bar under Section 69(2) of the Partnership Act was not taken by the defendant in his written statement. The Court held that plea regarding the maintainability of the suit by reason of operation of Section 69 of the Partnership Act is a mixed question of fact and law and if such a plea is not raised at trial, such plea cannot be raised for the first time in appeal. In support of such contention he also relied on the decision of the Supreme Court in the case of N. Jayaram Reddy and Anr. vs. Revenue Divisional Officer and Land Acquisition Officer, Kurnool reported in (1979) 3 SCC 578 (paras – 8, 9 and 10) where it was held that a point of defence, which has been willfully and deliberately abandoned by a party in civil case, at a crucial stage when it was most relevant or material, cannot be allowed to be taken up later, at the sweet will of the party which had abandoned the point, or as a last resort or as an afterthought. He further submitted that the decisions cited by the defendant are on Section 69(2) of the Partnership Act, which precludes a partnership firm not registered under Partnership Act from filing a suit against third party to enforce a contract and the said decisions cannot be applied in a suit filed by a partner against another partner of the firm. He further cited the decision of a learned Single Judge of Bombay High Court in the case of Krishnarao Narayanrao vs. Shankar Sahadeb reported in AIR 1954 Bom 523. So far as the contention, of the defendant that the reliefs claimed in the suit for declaration in respect of the suit property was barred by the Proviso to Section 34 of the Specific Relief Act, Mr. Chatterjee submitted that the defendant had never raised the plea of Section 34 before the learned Courts below and relied on the aforementioned decision of the Supreme Court in the case of N. Jayaram Reddy (supra). He further argued that in a suit of the nature of this case, no more consequential relief over the relief prayed for, can be prayed by the plaintiffs and as such the contention of the defendant that the suit was barred by proviso to Section 34 of the Specific Relief Act is devoid of any merit. With regard to the contention of the defendant that the decisions of the learned Courts below in this case on the basis of the Exbts. “2”, “3” and “4”, are vitiated by perversity, Mr. Chatterjee argued that the plaintiff, being the PW-1, had produced the original of the said documents and the said documents were exhibited in terms of Section 61 of the Evidence Act and the plaintiffs cannot prove the negative to the extent that the signatures of the defendant appearing in those documents are not forged and not manufactured and as such, the onus shifted upon the defendant himself to prove that the signatures appearing on those documents are not his signatures, but the defendant failed to discharge such onus. In support of such contention, Mr. In support of such contention, Mr. Chatterjee relied on the decision of the Division Bench of this Court in the case of Hemchandra Ganguli vs. Motilal Ganguli reported in AIR 1934 Cal 68 and the decision of the Division Bench of the Madras High Court in the case of M. Krishnaswami Naidu vs. Secretary of State represented by Collector of Tanjore and Ors. reported in AIR 1943 Madras 15. Hefurther submitted that the decisions of the Supreme Court and Division Bench of this Court in the case of Thiruvengada Pillai (supra) and A.E.G. Carapiet (supra) respectively cited on behalf of the defendant, have no application in the instant case. Mr. Chatterjee next contended that the judgments of both the learned Courts below are well supported by evidence and are not against the law and do not suffer from procedural irregularity and as such the judgments of the learned Courts below cannot be interfered with in the second appeal. In this regard, he placed reliance on the decision of the Supreme Court in the case of Gaya Din vs. Hanuman Prasad reported in (2001) 1 SCC 501 . Mr. Chatterjee’s last contention was that the substantial questions of law framed by this Court, in this case are not questions of law and are not substantial in nature. In this regard, he relied on the decisions of the Supreme Court in the cases of Bhuri Bai and Ors. vs. Ramnarayan and Ors. reported in (2009) 4 SCC 56 and Dulal Chowdhury and Ors. vs. Hirak Roy Chowdhury and Ors. reported in (2009) 17 SCC 670 . I have considered the plaint and written statement filed by the plaintiffs and the defendant before the learned trial Judge, the oral and documentary evidence adduced by the respective parties before the learned trial Judge, the judgments and decrees passed by both the learned Courts below as also the submission of both Mr. Mukherjee and Mr. Chatterjee appearing for the defendant and the plaintiffs respectively. With regard to the fourth substantial question of law that is, whether the learned first appellate Court erred in disposing of the appeal without disposing of the two applications filed by the appellants under Order XL1 Rule 27 of the Code, I am unable to accept the submission of Mr. Mukherjee appearing in support of the appeal. With regard to the fourth substantial question of law that is, whether the learned first appellate Court erred in disposing of the appeal without disposing of the two applications filed by the appellants under Order XL1 Rule 27 of the Code, I am unable to accept the submission of Mr. Mukherjee appearing in support of the appeal. From the impugned judgment of the lower appellate Court, it does not appear that during the course of hearing of the appeal, the defendant pressed any of the said two applications for additional evidence. Further, during the course of the second appeal before this Court, Mr. Mukherjee could not substantiate that the original purchase deed of the suit property or the certified copy of the judgment passed by the learned District Judge, Howrah, in connection with the Misc. Appeal No. 143 of 2005 could not be produced before the learned trial Judge after exercise of due diligence or any of those documents would have any bearing on the merit of the appeal. The case of the plaintiffs in their plaint was that by the resolution of the partnership firm (Exbt.-“2”) duly signed by each of them and the defendant respectively, the defendant relinquished his share of profit of twenty per cent (20%) as per the deed of partnership dated August 28, 1996 (Exbt.-“1”) from the firm in respect of the suit property and the relinquishment of the share of the suit property by him was also corroborated by a declaration of the defendant himself dated April 07, 2002 (Exbt.-“3”). In the plaint, the plaintiffs claimed a declaration that they are the partners of the partnership firm in respect of the suit property and that the resolution and the minutes of the firm dated April 07, 2002 (Exbt.-“2”) in respect of the suit property is binding upon the defendant. Thus, there cannot be any doubt that the reliefs claimed by the plaintiffs in the suit is based on the alleged contract between the partners of the firm recorded in the resolution dated April 07, 2002 (Exbt.-“2”) modifying the terms of contract contained in the partnership deed dated August 28, 1996 (Exbt.-“1”). Now, there is no dispute that the partnership firm in this case is not a registered firm under the Partnership Act. Now, there is no dispute that the partnership firm in this case is not a registered firm under the Partnership Act. In the instant case, both the plaintiffs as partners of the unregistered partnership firm sued the defendant, another partner of the firm and the plaintiffs relied on the partnership deed dated August 28, 1996 (Exbt.-“1”), as also the subsequent alleged contract recorded in the resolution of the unregistered firm dated April 07, 2002 (Exbt.-“2”). In these circumstances, the decision in the case of Guno Prosad Kundu vs. Abhoy Hari Sreemani reported in 52 CWN 15 where in similar circumstances, the Division Bench of this Court held that the suit filed by a partner of an unregistered partnership firm, praying for a declaration, that he is a partner of the business of the firm to the extent of two-thirds (2/3rds) share, was barred by the provisions of Section 69(1) of the Partnership Act is squarely applicable in this case. In the case of Seth Loonkaran Sethiya (supra) cited by Mr. Mukherjee, the Supreme Court held that a bare a glance at Section 69 of the Partnership Act is enough to show that it is mandatory in character and its effect is to render a suit by a plaintiff in respect of a right vested in him or acquired by him under a contract which he entered into as a partner of an unregistered firm, whether existing or dissolved, void. Following the said decision of the Supreme Court, the Division Bench of this Court, presided over Murari Mohan Dutt (as His Lordship then was) in the case of In the matter of Abani Kanta Pal (supra), cited by Mr. Mukherjee, held that a suit filed by a partner of an unregistered partnership firm claiming declaration of his share in the partnership firm was barred by Section 69 of the Partnership Act. Mukherjee, held that a suit filed by a partner of an unregistered partnership firm claiming declaration of his share in the partnership firm was barred by Section 69 of the Partnership Act. In this case, when admittedly the partnership firm in question described in schedule “A” to the plaint is an unregistered partnership firm and the plaintiffs filed the suit as partners of the firm against the defendant another partner on the basis of the partnership deed and the subsequent alleged contract recorded in the minutes of the firm dated April 07, 2002 (Exbt.-“2”) signed by all the partners, the suit was not maintainable and the impugned judgments passed by both the learned Courts below in favour of the plaintiffs is contrary to law. In the case of Sunderlal and Sons. vs. Yagendra Nath Singh and Anr. reported in AIR 1976 Cal 471 Sabyasachi Mukharji, J. (as His Lordship) was held that in view of the language of Section 69 of the Partnership Act, a plaint filed by an unregistered firm would not be a plaint at all and all the proceedings thereunder will be proceedings without jurisdiction. Approving the said decision of this Court, in the case of Andhra Pradesh Co-operative Wool Spinning Mills Ltd. vs. G. Mahanandi and Co. Wool Merchants reported in AIR 2003 AP 418 , the Division Bench of the Andhra Pradesh High Court presided over by J. Chelameswar (as His Lordship then was) held, in the context of a suit by partnership firm, the fact that the partnership firm is a registered firm and, therefore, entitled to maintain a suit against a third party becomes a jurisdictional fact and becomes part of the cause of action in the absence of any pleading or proof in that regard, that cause of action is incomplete. The Division Bench of the Andhra Pradesh High Court further held it is only the plaintiff who can plead and prove that the firm is a registered firm if at all it is; and therefore, the burden to plead and prove that the plaintiff is a registered firm and therefore, is entitled to maintain the suit against a third party is always on the firm in view of the legislative mandate under Section 69(2) of the Partnership Act – otherwise the cause of action for such a suit is not complete. From a bare reading of the provisions contained in sub-Sections (1) and (2) of Section 69 of the Partnership Act it is evident that opening words of both the sub-Sections provide that “No suit to enforce a right arising from a contract shall be instituted in any Court……………..” Thus, the bar under sub-Section (2) of Section 69 of the Partnership Act prohibiting filing of a suit by an unregistered firm against a third party is similarly applicable in a suit filed by any partner of an unregistered partnership firm against another partner to enforce a right arising from a contract. For all these reasons, I am unable to accept the contention of Mr. Chatterjee that the said decision of the Supreme Court in the case of Seth Loonkaran Sethiya (supra) or the decision of this Court in the case of Sunderlal and Sons. (supra) has no application in this case as those are the decisions on Section 69(2) of the Partnership Act. Even in the case of Krishnarao Narayanrao (supra), cited by Mr. Chatterjee, the learned Single Judge of the Bombay High Court held that the operation of Section 69(1) of the Partnership Act extends to any suit in which a partner sues his co-partner or the firm to enforce any right arising from the contract between them, that is, the contract of partnership regulating their rights and obligations, inter se as partners on the basis of the partnership deed. Accordingly, the said decision of the Bombay High Court cited by Mr. Chatterjee is also an authority for the view that even a partner of an unregistered firm cannot sue another partner for enforcement of their right under the contract regulating their rights and obligations as partners of the firm. In view of the aforementioned decisions of our High Court as also the Division Bench of the Andhra Pradesh High Court, I am unable to accept the decision of the Division Bench decision of the Madras High Court in the case of Munavar (supra) cited by Mr. Chatterjee. In any event in the written statement and in the memorandum appeal filed before the learned first appellate Court, the defendant took the plea of the suit not being maintainable in view of Section 69 of the Partnership Act. Chatterjee. In any event in the written statement and in the memorandum appeal filed before the learned first appellate Court, the defendant took the plea of the suit not being maintainable in view of Section 69 of the Partnership Act. Even the order dated May 11, 2010 passed by the learned District Judge dealing with the stay application filed by the defendant in the first appeal, recorded the plea of the defendant that the suit which was decreed by the trial Judge, was not maintainable in view of Section 69 of the Partnership Act. In the instant case, it cannot be said that the defendant had the abandoned the point of defendant that suit was not maintainable in view of Section 69 of the Partnership Act. Thus, the decision of the Supreme Court in the case of N. Jayram Reddy (supra) cannot be applied in this case. So far as the contention of the defendant that the plaintiffs’ claim for declaration was barred by proviso to Section 34 of the Specific Relief Act, the defendant in his written statement categorically alleged that various portions of the suit property is in his possession. In his examination-in-chief he stated that various floors of the suit property are in his possession. In his cross-examination the plaintiff no. 2, the PW-1, admitted that the possession of the ground floor, fourth floor and top floor flats is with the defendant and that a suit has been filed before another Court against the defendant for recovery of possession of the ground floor, fourth floor and top floor flats of the suit property. The plaintiffs as partners of the firm claimed title in respect of the suit property to the exclusion of the defendant. However, in the suit when the plaintiffs claimed declaration that they are the partners of the firm in respect of the suit property, as also a decree for permanent injunction restraining the defendant from claiming any share towards the profits of the partnership firm in respect of the suit property, they claimed no consequential relief for recovery of possession of the various portion/flats of the suit property from the defendant. Although in the plaint the plaintiffs prayed for leave under Order II Rule 2 of the Code but, at the time of filing of the suit no such leave was obtained from the trial Court. Although in the plaint the plaintiffs prayed for leave under Order II Rule 2 of the Code but, at the time of filing of the suit no such leave was obtained from the trial Court. As has been held by the Supreme Court in the case of Union of India vs. Ibrahim Uddin (supra) cited by Mr. Mukherjee, it is settled law that in a suit for declaration of title in respect of an immovable property, if the plaintiff is not in possession of the entire suit property and the plaintiff does not claim possession of the suit property, the suit shall be barred by the Proviso to Section 34 of the Specific Relief Act. Thus, the inescapable conclusion in this case is that the claim of the plaintiffs for declaration that they are the partners of the firm in respect of the suit property described in schedule “B” to the plaint was barred by the Proviso to Section 34 of the Specific Relief Act, 1963 and the impugned judgments and decrees passed by the learned Courts below are vitiated by error of law. Even, if I accepted the submission of Mr. Chatterjee that the defendant did not argue the point of maintainability of the suit as being barred by Proviso to Section 34 of the Specific Relief Act, 1963 before the learned Courts below even then, in view of the admitted facts of the case as discussed above the plaintiffs’ suit for declaration was barred by the Proviso to Section 34 of the Specific Relief Act and such point goes to the root of matter involving substantial question of law under Section 100 of the Code. This view is fortified by the decision of the Supreme Court in the case of Santosh Hazari vs. Purushottam Tiwari reported in (2001) 3 SCC 179 (para-14). In the said case N. Jayram Reddy relied by Mr. Chatterjee the Supreme Court was dealing with a case of the legal representatives of a respondent, who died during the pendency of appeal, waived their right to claim dismissal of the appeal in view of the abatement of the appeal against them and contested the appeal on merit. The decision of the appellate Court went against them. Chatterjee the Supreme Court was dealing with a case of the legal representatives of a respondent, who died during the pendency of appeal, waived their right to claim dismissal of the appeal in view of the abatement of the appeal against them and contested the appeal on merit. The decision of the appellate Court went against them. Subsequently, when the said legal representative sought to challenge the decision of the appellate Court, in the special leave petition, on the ground that the appeal had abated the Supreme Court held that the said legal representatives having waived the plea of abatement of appeal and exercised their discretion to contest the appeal on merit cannot challenge the decision of the appellate Court on the ground of abatement of the appeal. In this case, the pleas of the defendant under Section 69 of the Partnership Act and the Proviso to Section 34 of the Specific Relief Act go to the root of the matter, that is maintainability of the suit. Thus, the said decision of the Supreme Court in the said case of N. Jayram Reddy has no application in this case. Let us now consider the merit of the contention of the defendant, challenging the judgements and decrees of both the learned Courts below on the basis of the resolution dated April 07, 2002 (Exbt.-“2”) and the declaration of the defendant (Exbt.-“3”), when the defendant had denied to have signed any of the said two documents. The defendant in his written statement as also in his examination-in-chief categorically stated that the signatures of Jagadamba Singh appearing in both the said documents are not his signatures. Admittedly, during his cross-examination no question, not even a suggestion was put on behalf of the plaintiffs to the defendant disputing his evidence that the signatures of Jagadamba Singh appearing in the said documents Exbts. “2” and “3” are not his signatures. Thus, the plaintiffs accepted the evidence of the defendant that he had not signed either the resolution dated April 07, 2002 (Exbt.-“2”) or the declaration dated April 07, 2002 (Exbt.-3). This view, is fortified by the decision of the Division Bench of this Court in the case of A.E.G. Carapiet (supra) cited by the defendant. As already held by the Supreme Court, in the case of Thiruvengada Pillai (supra) cited by Mr. This view, is fortified by the decision of the Division Bench of this Court in the case of A.E.G. Carapiet (supra) cited by the defendant. As already held by the Supreme Court, in the case of Thiruvengada Pillai (supra) cited by Mr. Mukherjee, in this case when the defendant denied his signature on the said documents being Exbts.- “2”, “3” and “4”, the burden was on the plaintiffs, to prove that the defendant had signed those documents and the onus would not be on the defendant to prove the negative. But, in the instant case, the plaintiffs accepted the evidence of the defendant that he had not signed either the said resolution dated April 07, 2002 (Exbt.-“2”) or the declaration dated April 07, 2002 (Exbt.-“3”). Thus, it is evident that the impugned judgments passed by both the learned Courts below, on the basis of the said documents Exbts.-“2” and “3”, in favour of the plaintiffs are vitiated by gross misappreciation of the evidence, resulting in an error of law. So far as the decision of the Division Bench or the Madras High Court cited by plaintiffs in the case of M. Krishnaswami Naidu (supra) in the said case the Secretary of State for India in council filed the suit, claiming that title over a property had devolved upon the Government by Escheat in view of the death of the original owner of the property leaving behind no heir or legal representatives. The trial Court decreed the suit in favour of the Secretary of State for India. While deciding the appeal against the decree passed by the learned trial Court, the Division Bench held since the Government claimed devolution of the suit property by Escheat, it had to ascertain whether the necessary requisites for establishment of that title have been made out. In the factual background of that case, the Division Bench of the Madras High Court held that because the plaintiff had come to Court to enforce a right dependent on the existence of certain facts asserted by him and because he would fail if no evidence were adduced on either side, the burden of proving such facts lied on him regardless of the question whether the allegation made by him is affirmative in character or a negative one. In the factual background of that case, the Division Bench of the Madras High Court mentioned the settled principle of law that if a party wishes the Court to believe in the non-existence of certain facts and the existence of the rights asserted by him depends on the non-existence of such facts, it is as much his duty to establish those negative facts as it would be of proving positive facts, if his rights were to depend on their existence. The said decision relied by the plaintiffs has no application in this case. Similarly, the decision of the Division Bench in the case of Hemandra Ganguly (supra) cited on behalf of the plaintiffs lays down the settled principle of rule of evidence that, if, in order to make out a title, it is necessary to prove a negative, the party who avers it, must prove the negative and that even if a defence in the suit rests upon a negative allegation, the onus lies on the defendant to prove such defence. In the facts of the instant case, the said decision relied by the plaintiffs has no application. Since it is already held that the suit filed by the plaintiffs was barred by law both under Section 69(1) of the Partnership Act and by the Proviso to Section 34 of the Specific Relief Act, the decisions of the Supreme Court in the case Bhuri Bai and Ors. (supra) and Dulal Chowdhuri (supra), relied upon by Mr. Chatterjee have no application in this case. In view of the above findings that the suit filed by the plaintiffs against the defendant is barred by the provisions contained in Section 69(1) of the Partnership Act, 1932 as also by the Proviso to Section 34 of the Specific Relief Act, the appeal being S.A.T. 259 of 2013 is allowed. The impugned judgment and decree passed by the learned trial Judge as also the first appellate Court are set aside. Consequently, Title Suit No. 193 of 2003 filed by the plaintiffs before the learned Civil Judge, (Junior Division), 3rd Court, Howrah stands dismissed. However, there will be no order as to costs. Urgent certified photostat copy of this judgment, if applied for, be supplied to the parties subject to compliance with all requisite formalities.