KANHAYALAL HASTIMAL FIRODIYA Vs. VASANTLAL HASTIMAL FIRODIYA

JUDGEMENT

(1.) These appeals are filed by two defendants being aggrieved by the judgment and decree passed by the IInd Jt. Civil Judge, Senior Division, Ahmednagar, in Special Civil Suit No. 164 of 1992, decided on 13.8.1997, as confirmed by the 4th Ad hoc Additional District Judge, Ahmednagar, in Regular Civil Appeal No. 314 of 2001, decided on 4.9.2004. The trial Court has passed the decree of partition and separate possession and declared that the plaintiff is entitled to get l/5th share by way of partition and possession in suit property Municipal House No. 7293, bearing C.T.S. No. 3575/15, admeasuring 77 sq.mtr., situated at Ma-hatma Gandhi Road, Ahmednagar. Enquiry regarding mesne profit was also directed under Order 20, Rule 12 of the Civil Procedure Code.

(2.) Some of the facts giving rise to these appeals are not disputed at this stage and it is preferable to state them at the outset:-

(3.) At page 51 of the record and proceedings of the trial Court, there is copy of partnership deed dated 14th December, 1982, regarding which there is no dispute and as per said partnership deed, original plaintiff Vasantlal, appellant Hukumchand and their brother Ramesh formed partnership. It is stated that Vasantlal and Hukumchand were carrying on partnership with effect from 30th April, 1981 and Ramesh had agreed to become partner with them with effect from 16th November, 1982 and with consent of both existing partners, Ramesh was added as partner and new fresh deed of partnership was prepared. There is no record to show that between partnership deeds dated 22nd August, 1964 and 14th December, 1982, there was any other partnership deed. So, when the sale-deed dated 1st November, 1979 was executed by Imarat Co. Ltd., in favour of five brothers who were sons of Hastimal Firodiya, partnership firm of original plaintiff Vasantlal and appellant Hukumchand was in existence. It was partnership firm constituted as per partnership deed dated 22nd August, 1964, produced at Exh. 52. It is not disputed that the firm was in actual possession of the suit property and was running shop under name and style M/s. Hastimal Firodiya.