VIJAY KUMAR AGARWAL Vs. RAJ KUMAR ROOPLAL AGARWAL

JUDGEMENT

(1.) Both the civil revision petitions arise out of the orders passed on 07-08-2009 in interlocutory applications in O.S. No.25 of 2006 on the file of the Special Judge for Trial of Offences under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act-cum-V Additional District and Sessions Judge, Medak at Sangareddy. As the revisions are between the same parties involving the same subject matter in the same proceedings, they are heard and decided together.

(2.) Respondents 1 and 2 filed the suit against the revision petitioner and respondents 3 to 7 claiming that originally the 1st respondents wife, the 2nd respondent and the revision petitioner constituted a partnership firm in the name and style of M/s. Ajay Enterprises under a partnership deed dated 19-01-1984. The registered partnership at will was the subject of another partnership deed dated 05-03-1993. The 1st respondents wife retired from the partnership with effect from 31-03-1998 and the 1st respondent was taken as the incoming partner in her place under another partnership deed between respondents 1 and 2 and the revision petitioner coming into force from 01-04-1998. A total extent of Ac.16.10 guntas covered by 6 items in the suit schedule were purchased from different vendors by the original partnership for the benefit of the family of the partners. As agriculture was not the business of the firm, individual profits of the partners were contributed for the purchase with the lands becoming the assets of the firm for obtaining loans for the purpose of business of the firm. The lands purchased between 1996 and 1998 were being looked after by the revision petitioner who was looking after the firm also. The partners dividing the profits equally between themselves, got the suit schedule lands mortgaged as security to the Union Bank of India, which were released by the bank in its letter dated 18-01-2005. While so, the revision petitioner was alleged to have entered into an agreement of sale-cum-general power of attorney with respondents 3 and 4 and to have executed registered sale deeds in favour of respondents 3 to 7 in respect of different properties at a grossly low value. The sale proceeds were also not accounted for and respondents 1 and 2 never authorized the revision petitioner to sell the lands. The revision petitioner was never designated a Managing Partner and therefore, respondents 1 and 2 sought for a declaration that the suit lands are the business assets of the firm, in which the revision petitioner and respondents 1 and 2 are entitled to one-third share each and to be allotted and put in possession of such shares through a preliminary decree to be followed by a final decree for partition. RESPONDENTS 1 and 2 also prayed to put respondents 4 to 7 in possession of one-third share of the revision petitioner, if the sale deeds in their favour were found valid to that extent.

(3.) While so, the revision petitioner filed I.A. No.163 of 2006 under Section 10 CPC for stay of all further proceedings in the suit till O.P. No.1496 of 2005 is decided. The petition was decided on 07-08-2009 noting the contention of the revision petitioner about respondents 1 and 2 not being granted any interim relief in O.P. No.1496 of 2005 filed under Section 9 of the Act and the contention of respondents 1 and 2 claiming the subject matter of the proceedings to be different with respondents 3 to 7 being not parties to O.P. No.1496 of 2005. The appointment of arbitrator was specifically brought to the notice of the Court on 31-01-2008. The trial Court opined that the relief of partition of the landed property claimed in the suit cannot be decided in O.P. No.1496 of 2005 and therefore, the matters in issue are not directly and substantially in issue in the earlier proceeding. Hence, holding that Section 10 CPC is not applicable, the petition was dismissed.