UTTAMSINGH JODHSINGH AHALUWALIA Vs. JAGZITKAUR GIANSINGH AHALUWALIA

JUDGEMENT

(1.) RULE. Ms. Archana Acharya, learned Advocate, appears and waives service of Rule on behalf of the opponents.

(2.) THE present application for production of additional evidence under order-XLI, Rule 27 of the Code of Civil Procedure, 1908 ("the Code" for short) has been filed by the appellant-original defendant on the ground set out in the Civil Application, inter alia, that the applicant's father - Jodhsingh ahaluwalia had two sons, the applicant and Gyansingh, and the father, who was doing the business, had taken the applicant and Gyansingh as partners in the partnership business carried on in the name and style of Jodhsingh gulabsingh and Sons. The copy of the partnership deed is produced at Annexure-A. It has been contended that the suit house - "gomti Kunj" was purchased in the year 1973 by the applicant and Gyansingh, that is, two brothers. However, the consideration was paid by cheques drawn on the account of the partnership firm maintained with Punjab National Bank. Therefore, though the suit house was purchased by the applicant and his brother - Gyansingh, the property belonged to the partnership firm. The copy of the sale-deed is produced at annexure-B. The partition suit was filed which was decreed and the present second appeal is filed against the decree for partition contending, inter alia, that the suit house purchased in the name of the applicant and his brother is, in fact, a partnership property as the consideration has been paid by the cheques drawn on account of the partnership firm. Therefore, it has been contended that this aspect has not been considered while decreeing the suit by the trial Court and confirming the decree by the Appellate Court, as there is nothing on record, and hence, the present Civil Application has been filed for tendering the additional evidence, which has been mentioned in the list of documents, that is, two cheques drawn on Punjab National Bank from the account of the partnership firm, partnership deed and rent note. It is prayed that these documents may be permitted to be tendered as additional evidence by an appropriate order directing the District Court (lower Appellate Court)to frame necessary issue after allowing the aforesaid document as additional evidence and decide the same. It is also contended that for the purpose of deciding the present second appeal, the substantial question of law, as suggested and mentioned in the application, that whether the suit property can be ordered to be partitioned as joint property though the same is purchased by the funds of the partnership firm, may be framed.

(3.) MR. S. M. Shah, learned Advocate appearing for the applicant, has submitted that though the suit property is purchased in the name of the applicant and his brother, the partnership firm has made the payment and the funds for purchase of the property are that of the partnership firm. Therefore, Mr. Shah submitted that as can be seen from the document, that is, agreement to sell which is produced with the Civil Application at Annexure-A, the endorsement referring to the same cheques is necessary for deciding the real controversy between the parties.