ASHOK KUMAR Vs. A D KUMAR

JUDGEMENT

(1.) The present petition under Article 227 of the Constitution of India has been preferred by the petitioner against an order dated 22nd April, 2006 whereby the learned Civil Judge dismissed an application under Order XII Rule 6 CPC for passing a decree of dismissal of the suit on the basis of admissions made by the plaintiff (respondent herein) Dr. B.D. Kumar (since deceased, now being represented by his Lrs).

(2.) The brief facts relevant for the purpose of deciding the present petition are that Dr. B.D. Kumar filed a suit for declaration with a prayer that he should be declared exclusive owner and in possession of a plot bearing number 6 and 7, in Block No.6, Industrial Area, Kirti Nagar, Delhi. His contention was that vide a sale deed dated 10th June, 1960, he purchased these plots and the mutation of the plot was done in his name. After purchasing these plots, plaintiff with his brother and family members decided to start a family business in partnership with each other on these two plots and plaintiff and other partners agreed to have a building constructed on these two plots for running a rolling flour mill business in the name of Kumar Rolling Flour Mills. A partnership deed was executed on 10th November 1961 and a partnership firm under the name M/s Ashok Anil and Company came into existence. The constitution of this partnership firm changed from time to time to induct other family members and the partnership always consisted of family members with plaintiff Mr. B.D. Kumar being one of the partners. It is stated in the plaint that to simplify the matters, a release deed was executed by plaintiff on 6th March, 1972 in respect of the property in question in favour of the partnership firm although the partnership business was running since November 1963 and the factory building was constructed in the year 1960-61. It was stated that it was a term of the lease deed of these plots executed in favour of plaintiff that no transfer shall be effected without prior permission of L&DO. He referred to clause 6(b) of the lease deed. He further stated that the lease deed also provided for recovery of unearned increase in the value of the land in the event of any subsequent transfer, to the tune of 50% of profit. He submitted that in view of this prohibition in transfer of the property, the release deed executed by the plaintiff in favour of partnership firm could not have been executed without prior permission of L&DO. Thus, the plaintiff continued to be the exclusive owner of these plots. The Release Deed was illegal because of the paramount clause in the lease deed. He took the plea that it was agreed between the partners that the plaintiff would remain the owner of these plots of land and construction would be raised by partnership firm on these plots. Thus, according to him, although the construction was raised by the partnership firm but the partnership firm had nothing to do with the said plots of land.

(3.) It is further submitted that the partnership firm was dissolved on June 07, 1972 by one of the partners namely Harvans Lal Kumar who issued notice of dissolution of this firm. The disputes had arisen between the partners. Plaintiff and defendants no.4 to 6 moved an application under Section 20 of the Arbitration Act, 1940 in the High Court of Delhi for appointment of an arbitrator in terms of the arbitration agreement contained in the partnership deed. However, later on the family members decided to compromise the matter and an application under Order 23 Rule 1 CPC was made by some of the parties to the suit to take compromise on record but the others did not join and ultimately both the applications, one under Order 23 Rule 3 CPC and other under Section 20 of Arbitration Act were withdrawn as not pressed. He pleaded that the accounts of the partnership firm were not gone into and settled. A suit filed in 1973 by Dr. Vijay Sheel Kumar for rendition of accounts in dissolved partnership firm in the High Court of Delhi was pending before the High Court. In 1975, Fateh Chand, another partner filed a suit for rendition of accounts in High Court and that suit was also pending. These two suits being Suit No.219 of 1973 and 588 of 1975 were still pending. The Plaintiff stated that the cause of action for filing the present suit arose since the plaintiff learnt a few days before filing suit that on 17th January 1985, defendant no.1 had applied to L&DO for mutation of the plots in favour of the Firm Ashok Anil and Company of which he was a partner. Thus, defendant no.1 wanted to appropriate the said property which actually belonged to the plaintiff. Plaintiff had not bothered about the plots earlier because they were used by his own kiths and kins but this mutation application prompted him to file the suit. He, therefore, wanted a decree of declaration about the plots being his property.