HARIPRASAD NOPANY Vs. MOHANLAL NOPANY AND OTHERS

JUDGEMENT

(1.) This appeal is by the plaintiff in C.S.No. 734 of 1995, whose application for injunction till the disposal of the suit has been dismissed. In the suit, the prayer is for permanent injunction restraining the defendants from in any manner alienating or encumbering, developing or putting up construction on the suit property viz., 29 grounds 646 Sq. ft. in Greenways Road, Raja Annamalaipuram, fully described in Schedule I to the plaint and in particular 14 grounds and 1523 s. ft. of land described in Schedule II to the plaint.

(2.) The relevant facts in short are as follows:- <FRM>JUDGEMENT_156_LAWS(MAD)3_1996_1.html</FRM> The entire property comprising 29 grounds and 646 sq. ft. was purchased on 28-7-1967 by a partnership firm known as Dowlatrarn Rameshwarlal in the name of one of its partners Rameshwarlal Nopany. There is no dispute that the property belonged to the firm as such. There is also no dispute that there were six partners in the firm, the details being as follows:- <FRM>JUDGEMENT_156_LAWS(MAD)3_1996_1.html</FRM> The firm was dissolved on 17-8-1972. There was a memorandum of settlement on 8-9 1973 containing certain terms, to which the present appellant was not a party. Clause 18 of the settlement is to the effect that the immovable property purchased by the firm and referred to above should not be disposed without prior written consent of all the parties thereto. The clause also specifies that Rameshwarlal Hariprasad Group would have 2/3rd share while Mohanlal shiw Prasad Group would have 1/3rd share. It is evident from another document executed on the same day called Memorandum of Covenant that Mohanlal Shiw Prasad Group comprised Mohanlal Nopany and shiw Prasad Nopany, whereas Rameshwar Lal Hariprasad Group comprised Rameshwarlal Nopany, Hariprasad Nopany, Narayan Prasad Nopany and Mahendra Kumar Nopany. Following the Memorandum of Settlement, there appears to have been an arbitration between the parties. But, there were disputes among them which could not be put an end to by negotiations. A suit was filed in this Court in C.S.No.363 of 1981 by Mohanial Nopany and shiw Prasad Nopany for declaring that the plaintiffs are alone entitled absolutely to 14 grounds 1523 sq. ft. covered by Plot A and described in Schedule A to the plaint in their own right, for partition of plot D described in Schedule B thereto into eight shares and separate possession of one such share to the second plaintiff or in the alternative for partition by metes and bounds of both plots A and D into 12 shares and separate possession of five such shares to the two plaintiffs. There was also a prayer for injunction etc. The present appellant was the second defendant in that suit. Narayan Prasad Nopany and Mahendra Kumar Nopany were defendants 1 and 3. One Ramji Reddy an alienee was the fourth defendant. There was a compromise during the pendency of the suit and pursuant to the memorandum of compromise, a decree was passed in terms of the compromise. To that compromise, the appellant was not a party. As per the said compromise, defendants 1 and 4 therein agreed that the plaintiffs therein were absolutely entitled to Plot A and that the fourth defendant shall not enter upon any portion of the said plot either by himself or through others. The said compromise decree also declared that defendants 1 to 3 therein were absolutely entitled to Plot B. The agreement between the first defendant on behalf of the plaintiffs and defendants 2 and 3 with the fourth defendant on 14-3-1981 was declared to be binding on defendants 1 to 3, but restricted only to Plot D. It is not necessary to refer to the other clauses of the compromise. The plaintiffs in that suit filed a memo to the effect that the suit claim as against the second defendant therein, who is the appellant herein, was given up and not pressed. The compromise decree recites the same.

(3.) The appellant filed C.S.No.1341 of 1988 on the file of this Court for partition and separate possession of the plaintiffs 5/16th (31.25%) share in the entire property comprising plots A and D, for declaration that the sale deed executed by the first defendant therein in favour of defendants 6, 7 and 8 was not binding on the plaintiff, to set aside the decree dated 2-4-1985 in C.S.No.363 of 1981 and for permanent injunction restraining the defendants from in any manner interfering with the possession of the property and alienating or encumbering the same. Schedule I to the plaint described the entirety of the property comprising 29 grounds 646 s.ft. while Schedule it referred to Plot A and Schedule III to Plot D. Defendants 1 to 3 therein were partners in the firm, the fourth defendant was the son of the third defendant Mohanlal Nopany, the fifth defendant was another partner Shiw Prasad Nopany while defendants 6 to 8 were impleaded as alienees. The plaintiff therein obtained an order of injunction against defendants 6 to 8 in that suit in Application No. 1394 of 1989 restraining them from alienating the property out in the Schedule thereto. The Schedule described the entirety of the property comprising both plots A and D. That suit is still pending, though it is stated before us that there was a compromise between the plaintiff in that suit and defendants 6 to 8 therein by virtue of which a compromise decree has been passed on 9-11-1994 as between themselves with reference to Plot D.