J D JAIN Vs. SHARMA ASSOCIATES

JUDGEMENT

(1.) LEARNED counsel for the appellants urges that the observations and findings of the learned Single Judge in para 18 of the impugned judgment dated February 02, 2012 proceeds on an erroneous assumption; as if the suit filed by the appellant was seeking a decree for possession. Learned counsel urges that the relief prayed in the suit was to cancel the partnership deed dated November 18, 1987; to declare that under the said deed no rights were conferred upon defendant No.1 i.e. M/s.Sharma Associates, the stated partnership firm; and lastly, it be declared that the plaintiffs are in possession of the land comprised in Khasra No.597 and Khasra No.600 situated in the revenue estate of village Devli; requiring SHO of the concerned police station to deliver possession of the property to the plaintiffs and as a consequence thereof, to restrain the defendants to create third party interest in the property.

(2.) HOWEVER, learned counsel concedes that in view of the fact that the instant suit was the fourth, in succession, being litigated with respect to the suit property, in full or in part, the property remedy for the appellants would be to seek amendment in Suit No.194/1988 filed by three of the plaintiffs as also to file an application under Order 1 Rule 10 CPC for impleadment of the remaining plaintiffs as plaintiff in the said suit; the amendment being sought to include claim and hence a decree in the said suit pertaining to land comprised in Khasra No.600 as well inasmuch as claim in said suit is restricted to only land comprised in Khasra No.597.

(3.) DEFENDANT No.1, a stated partnership firm, had filed Suit No.384/1988, in which it was alleged that J.D.Jain, his two sons Raj Kumar and Pawan Kumar and one Mrs.Mithilesh Jain W/o V.K.Jain had entered into a partnership with one Kumari Kusum Sharma as per Deed of Partnership dated November 18, 1987. It was pleaded in the said suit that as per the partnership deed the partnership was authorized to sell a part of land comprised in Khasra No.600 to one Manoj Kumar. It was pleaded that Satya Prakash Goel, impleaded as defendant No.1 in said suit was trying to interfere with the partnership's possession in the land comprised in Khasra No.597 and Khasra No.600 and thus a decree to permanently restrain defendant No.1 from interfering in the possession was prayed for.