MANGILAL Vs. P MADHAVAIAH

JUDGEMENT

(1.) The Defendants 1 and 2 in OS No.57 of 1984 are the appellants before this Court. Both the Courts concurrently disbelieved the plea set up by them and decreed the suit. Hence this second appeal.

(2.) The main contention raised by Mr. Vilas V. Afzulpurkar, the learned Counsel for the appellants in this second appeal is that both the Courts below ought to have held that the plaintiff - first respondent herein impliedly surrendered his tenancy over the suit schedule mulgi by his conduct and ought to have dismissed the suit. The undisputed facts of the case are that the suit schedule mulgi abutting main road admeasuring 200 Sq.ft forms part and parcel of whole mulgi bearing No. 15-9-360 ad measuring 460 sq.ft. situated in Muktiar ganj, Hyderabad and the first respondent herein and his predecessor in title were the tenants of the entire mulgi for over 75 years. It is also their case that this is the wakf property endowed to Hazi Tippukhan Bahadur. As the plaintiff was not having finances to do business he seemed to have entered into a partnership with Defendants No.1 and 2 along with another person on 12-9-1977 and did business in pulses and grains under the name and style of Mahavir Traders. Subsequently, in the year 1979, the other person retired from partnership and in those circumstances a fresh deed of partnership was executed between the first respondent and the appellants herein on 26-10-1979. As per the terms of the partnership the capital required for carrying on business shall be invested by the appellants herein on such terms and conditions to be agreed between the partners from time to time and the books of accounts shall be maintained in regular course of business and shall be closed by filing profit and loss account every year. The accounting year is from Diwali to Diwali each year. Under Clause 7 of the Partnership deed the sharing of profits and losses are specified which is extracted below:

(3.) In the second appeal Mr. Vilas V. Afzalpurkar appearing for the appellants strenuously contends that the very conduct of the first respondent in not filing a suit for rendition of accounts and approaching the third respondent proves that the plea raised by his clients is a bona fide one, the Court ought to have felt that there was settlement of accounts of the partnership firm. I am afraid that I cannot agree with the contention raised by the learned Counsel for the appellants.