MARIASTELLA Vs. RAJARAJAN

JUDGEMENT

(1.) DEFENDANTS 1 to 3 in O. S. No. 92 of 1992 on the file of the learned Subordinate Judge, Mayiladuthurai are the appellants herein. The respondents are the plaintiffs. The suit is for declaration that the order of eviction dated 13. 1. 1983 made in R. C. O. P. No. 51 of 1981 on the file of the learned Rent Controller, Mayiladuthurai (District Munsif) confirmed by the appellate Authority in R. C. A. No. 4 of 1983 and as confirmed by this Court in c. R. P. No. 3220 of 1984 is invalid in law, null and void, inexecutable and unenforceable, having been passed without jurisdiction, and for permanent injunction restraining defendants 1 to 3 from enforcing the said order of eviction and interfering in any manner with the peaceful possession and enjoyment of the suit property by plaintiffs.

(2.) THE plaintiffs are the sons of Rajagopala Van-daiyar and they had become divided already by partition of their joint family properties. Later on, they started a partnership business in the name and style of'rajagopala Vandaiyar and Sons'with the father as managing partner on 5. 4. 1976. Later on, Rajarajan, the 1st plaintiff herein expressed a desire to retire from the partnership and the other two partners agreed for reconstitution of the said partnership with the 2nd plaintiff and the 5th defendant alone as partners and a partnership agreement dated 1. 3. 1978 was entered into and the same continued till 1981 when the rent control proceedings in R. CO. P. No. 51 of 1981 was initiated. During this time, there were other partners in the firm besides Rajagopala Vandaiyar who were interested in the suit property. THE suit property is situated in T. S. Nos. 1127 and 1128 within the municipal limits of Mayiladuthurai. THE total extent is 8,848 sq. ft. , in which there are 3 small shops in 200 sq. ft. each and the remaining space being vacant site.

(3.) THE plaintiffs filed I. A. No. 574 of 1992 for an interim injunction restraining defendants 1 to 3 from in any way executing the order and decree made in R. C. O. P. No. 51 of 1981 on the file of the learned Rent controller, Mayiladuthurai till the disposal of the suit. THE first respondent/lst defendant filed a counter-affidavit stating as follows: THE first respondent's husband Joseph Nadar filed R. C. O. P. No. 51 of 1981 against respondents/ defendants 4 and 5 and defendants 4 and 5 filed R. C. A. No. 4 of 1983 against the eviction order and it was dismissed. THE 4th defendant was taking part in the earlier proceedings between 1981 and 1991 and the 4th defendant was one of the partners in the firm. THE 4th defendant was the managing partner in the firm. THE 4th defendant did" not inform the court in the previous proceedings that the partnership was changed even otherwise, representation was made by defendants 4 and 5 in the earlier proceedings that the partnership was changed from 1. 3. 1978. THE first respondednt/ first defendant knew about the proceedings. Even in the application for impleading, the legal representatives of Joseph Nadar, the first defendant did not inform the court about the new partnership or the change of firm from 1. 3. 1978, whereas he has mentioned the court that he was one of the part-ners of the firm. THE defendant does not admit the change of partnership from 1. 3. 1978. THE partnership dated 1. 3. 1978 is a concocted document for the purpose of the suit. THE plaintiffs are bound by an estoppel as they have taken part in the previous proceedings. THE contention that the provision under the Tamil Nadu buildings (Lease and Rent Control) Act will not apply to the facts of the case is not tenable.