PONNUSAMY Vs. K K SUBRAMANIAM

JUDGEMENT

(1.) The appeal and cross objection have been filed against the judgment and decree of the trial court, namely the court of the Additional District Judge (Fast Track Court No.2), Gobichettipalayam dated 19.09.2002 made in O.S.No.1 of 2001 on the file of the said court. The plaintiffs 1 to 3 in the original suit are the appellants in A.S.No.748 of 2002. The suit was filed for a declaration and consequential injunction. The suit was partly decreed granting the relief of injunction and declining to grant the relief of declaration. As against the dismissal of the suit regarding the relief of declaration, the present appeal has been filed. As against that part of the decree granting the relief of injunction, the defendant has preferred the cross objection No.34 of 2003.

(2.) The case of the appellants as per the contents of the plaint filed by them as plaintiffs, in brief, can be stated thus:- The appellants/plaintiffs are the absolute owners of the property described in plaint schedule, which is an undivided common half share of the land having an extent of 0.11.0 hectare comprised in old Survey No.144A and new Survey No.15/7 in Irugalur village, Gobichettiplayam Taluk. The entire extent of 0.11.0 hectare was the ancestral properties of the appellants/plaintiffs. They wanted to construct a rice mill over the said property and run it with the help of the respondent/defendant, a close relative of the third appellant/third plaintiff. The respondent/defendant demanded conveyance of an immovable property in his favour to enable him to join as a partner in the proposed rice mill. Hence a sham and nominal sale deed was executed and registered on 04.07.1974 in respect of the suit property, namely common half share of 0.11.0 hectare land comprised in old Survey No.144A and new Survey No.15/7 in Irugalur village, Gobichettiplayam Taluk, in favour of the respondent/defendant. As the said sale was sham and nominal, no consideration was received from him and the title and possession of the property continued to rest with the appellants/plaintiffs. The original sale deed was also not handed over to the respondent/defendant and the same was retained by the third appellant/third plaintiff. Patta had been issued in the name of the third appellant/third plaintiff. Since the sale was sham and nominal, the respondent/defendant did not take steps to get the patta transferred in his name. However, the rice mill building, machineries and other affixtures alone were used as the properties of the partnership firm having the appellants/plaintiffs and the respondent/defendant as partners. In the rice mill alone, excluding the land on which the rice mill has been built, the respondent/defendant had got a common half share, whereas the appellants/plaintiffs were jointly entitled to the other half. By a partition deed dated 06.09.1984, the appellants/plaintiffs divided the 3/6 share in the building, machineries, electric service connection and license of the rice mill alone among themselves and each one of them was allotted 1/6 share. On 05.09.1984, the plaintiffs 2 and 3 conveyed their share in the rice mill in favour of the first appellant/first plaintiff under a registered sale deed. Hence the first appellant became the sole partner of the respondent in respect of the rice mill. The understanding between the appellants and the respondent was that all the appellants together should invest Rs.75,000/- and the respondent should invest Rs.75,000/- and as such, in the rice mill business to be started with the said capital, respondent/defendant would be entitled to 50% of the profit, whereas the appellants/plaintiffs together would be entitled to the other 50% of the profit. It was also a specific understanding that the respondent/defendant would not have any right in the land and he would not claim any right under the sale deed dated 04.07.1974. The necessary building for the mill was constructed and the machineries were erected in 1976 and the mill was started functioning from 1977, after obtaining necessary license. Till January, 1998, the mill was run profitably and the profit was shared as per the above mentioned understanding. Thereafter, due to the non-cooperation on the part of the respondent/defendant, there arose problems in running the rice mill. When the respondent/defendant was asked to pay 50% of the electricity consumption charges, he refused to pay the same. Therefore, the production in the rice mill was stopped. Under such circumstances, with the intention of causing loss to the appellants/ plaintiffs and to make wrongful gain to himself, the respondent/defendant issued a notice dated 26.03.1998 seeking dissolution of the partnership and appointment of arbitrators for taking accounts and dividing the properties of the partnership firm. The said notice was suitably replied. Despite the same, on 28.05.1998, the respondent/defendant tried to dig pits and plant coconut saplings in the suit property and the said attempt was successfully thwarted. Under such circumstances, the appellants/plaintiffs were constrained to file the suit for a declaration that they are the absolute owners of the suit property and for an injunction against the respondent/defendant not to cause any disturbance to the appellants'/plaintiffs' possession and enjoyment of the suit property.

(3.) The suit was resisted by the respondent/defendant (cross-objector) by filing a written statement containing allegations, which are summarised as follows:- The plaint averment that the sale deed dated 04.07.1974 made in favour of the respondent/defendant was sham and nominal, is false. The same is a genuine sale transaction, in which the respondent/defendant got title to an undivided half share in the property comprised in old Survey No.144A and new Survey No.15/7 having an extent of 0.11.0 hectare in Irugalur village, Gobichettiplayam Taluk, over which the mill building, drying yard, etc. situate. From the date of the said sale deed, the defendant became a joint owner along with the plaintiffs and the license to run the rice and oil mill in the name and style of "Sri Vijayalakshmi Rice and Oil Mill" was applied for and obtained jointly in the names of the respondent/defendant and the third appellant/third plaintiff. The same was started in 1974. The said rice and oil mill business is a partnership business run by the respondent/defendant and the third appellant/third plaintiff, both of them having contributed equal amount for the purchase of machineries and for the construction of the building. The said partnership is a partnership at will. While the business was running smoothly, in or about the month of February 1998, the appellants/plaintiffs, due to misunderstanding, locked the rice mill premises and stopped the business. Hence the respondent/defendant was convinced that it was no longer feasible to continue the said partnership business and that it was fit to dissolve the said partnership. With the said object in view, the respondent/defendant issued a notice dated 26.03.1998 dissolving the partnership with effect from 01.04.1998. The said notice was received by the plaintiffs and hence the partnership stood dissolved with effect from 01.04.1998. Following the said notice, the respondent/defendant filed a suit in O.S.No.124/1998 against the appellants/plaintiffs for settlement of accounts and distribution of assets of the firm and such suit is pending. Under such circumstances, the appellants/plaintiffs have come forward with the frivolous suit. The sale deed dated 04.07.1974 under which the respondent/defendant purchased half share in the land over which the mill has been constructed had been kept in the mill premises along with other documents for making it readily available to the officials who might visit the mill for inspection and in February, 1998, while locking the mill premises, the appellants/plaintiffs took away the sale deed from the mill. The mere fact that the sale deed under which the respondent/defendant purchased half share in the property is now available with the appellants/plaintiffs, shall not confer any title on them and the same will not, in any way, affect the title and interest of the respondent/defendant in the suit property. The alleged partition deed dated 06.09.1984 and the sale deed dated 05.09.1984, shall not be binding on the respondent/defendant. The appellants/plaintiffs shall not have a right to have the mill premises locked and the entry of the respondent/defendant to the mill premises denied. They are not entitled to do so. In law, the respondent/defendant is entitled to have access to the suit mill premises and enjoyment of the land on which it is being run. The relief of declaration sought for by the appellants/plaintiffs on the premise that the sale deed in favour of the respondent/defendant is sham and nominal, is not sustainable. Though the respondent/defendant does have a right of access to the mill premises and the business, the averment that the respondent/defendant attempted to trespass into the suit property and plant coconut saplings, as a fact constituting the cause of action, is nothing but a false and imaginary one. There is no cause of action for seeking the relief of injunction also. In any event, the plaintiffs cannot seek such an injunction against the respondent/defendant, a co-owner. For all the reasons stated above the suit should be dismissed.