MOHAN LAL BAHRI Vs. K L BAHRI

JUDGEMENT

(1.) Aggrieved by the judgment and decree passed by Sri Chandra Mohan, District Judge, Banda on 7-4-1977 in Original Suit No. 12 of 1973, defendant No. 1 as appellant has preferred this appeal. Respondent K. L. Bahri filed a suit restraining the defendant Mohan Lal Bahri, Madan Lal Bahri and Girdhar Lal by permanent injunction for using the lane for their individual benefits by transferring or constructing thereon, using etc. and also for injunction for demolition of the constructions shown as A B C D and boundary given in the plaint. The land in suit was the property of the firm M/s. K. L. Bahri and Co. Banda. The petitioner's case is that the plaintiff and defendants Nos. 1 and 2 are real brothers. They entered into partnership agreement on 20-2-53 by registered agreement to form a partnership to carry on whole-sale cloth business at Banda in the name and style of M/s. K. L. Bahri and Co. The share of each of the three partners were equal. Till the year 1959, the business was looked mostly by the plaintiff and defendant No. 1 and in the said year another separate business in the name and style of M/s Bahri Brothers was opened at Kanpur by the plaintiff and other two brothers to carry on whole-sale cloth business by forming a separate8 partnership and plaintiff was active partner there. The business of M/s. K. L. Bahri and Co. at Banda was mostly looked after by the defendants Nos. 1 and 2. In the year 1962, the partners of the firm thought to acquire their own business premises, and purchased the land in dispute which is only at a distance of 25 to 30 yards away from the old rented premises where from said partnership business was being carried. That land was purchased from Sri Anwaru-ur-zaman, Advocate, Banda, for a sum of Rs. 11,500.00. The land was purchased out of fund of M/s. K. L. Bahri for having their own business premises of the firm on that land but the defendant No. 1 in collusion with the defendant No. 2 got the sale deed executed and registered on 24-8-62 in his own name and kept the facts concealed from the plaintiff, who was at the relevant time, in Kanpur. On account of the disputes between the partners regarding the accounts, stocks, cash in hand and other assets and liabilities of the firm which arose amongst the partners of the firm, said business at Banda stopped on 1-7-65. Ultimately, the differences etc. were referred to the three arbitrators. The arbitrators could not successfuly arbitrate their disputes and the order of the arbitrators was stayed under the order of the District Judge, Banda on 28-8-1973 and the learned District Judge was pleased to cancel the clause or arbitration as embodied in the partnership deed. As the plaintiff had to go to Srinagar (Kashmir) in connection with the marriage of his daughter and taking advantage of the temporary absence of the plaintiff, the defendant with the help of Sri Sohan Lal Sahgal and his son Narinder Kumar Sahgal and S. K. Agarwal, a P.W.D. Contractor 'started' raising unauthorised construction over the disputed land for their own benefit and also entered into an agreement to sell the disputed land to the defendant No. 3 without any right, title or interest, in respect of the disputed land, the disputed land belonged to the partnership firm only.

(2.) After having knowledge of these intentions conspiracy and the alleged fraudulent attempt of the defendant, the plaintiff filed the suit for the aforesaid reliefs.

(3.) It has been submitted that the defendant No. 1 Mohan Lal Bahri was highly educated amongst the brothers, who was M.A. LL.B. and was a very cunning man and he was dealing with the Income and Sales tax matters of the firm. The accounts were prepared under his supervision, he used to look after and attend the business of the firm M/s K. L. Bahri and Co. and he had never intended nor thought to purchase the land for himself but subsequently the greed over-powered him and though it was purchased for constructing of the premises of the firm, he purchased the same in his own name, though money was funded by the partnership firm. Entry to that effect had been duly made in the accounts book of the partnership firm which has been duly exhibited. Defendant No. 2 Madan Lal Bahri had first supported the written statement of the defendant No. 1 but subsequently got his written statement amended on the allegation that the defendant No. 1 managed to got his signatures on some blank papers on the plea that he would be doing needful for to safeguard his interest but misusing his good-faith of the defendant No. 2 and using undue influence upon the defendant No. 2, defendant No. 1 got the written statement filed on behalf of defendant 2 supporting the written statement of the defendant No. 1. In that amendment application, the defendant No. 2 contended that the disputed land was actually purchased from the fund of the firm and that purchase was made for the benefits and use of the firm.