SUBHASH CHAND Vs. RAMA NAND

JUDGEMENT

(1.) There is an inordinate delay of 495 days in filing this appeal but as this Court has dealt with this case on merits, the delay of 495 days in filing the appeal is hereby condoned .

(2.) Briefly, the facts of the case are that the appellants filed a suit on 01.09.1972 for possession by way of partition of the suit property i.e. Plot No.20, Industrial Estate Udyog Vihar, Gurgaon, allotted to M/s Rama Industries (appellant No.2). The partners of M/s Rama Industries were Sh. Ganga Sahai holding 28 shares, Rama Nand, Madan Lal, Smt. Gindori Devi and Subhash Chand Sharma (appellant no1) holding 18 shares each vide partnership dated 18.07.1968. Respondent No.1 and 2 and deceased Ganga Sahai and Gindori Devi were other partners in the said firm. It was submitted that partnership firm was never dissolved and respondent No.1 had forged a dissolution deed dated 31.12.1992, on which basis he got the suit plot transferred in the name of respondent No.3 in collusion with respondent No.5 and 6. Thus it was averred that the conveyance deed bearing No. 4005 dated 13.08.1993 is illegal, null and void. It was next maintained that subsequently respondent No.1 sold the suit plot in favour of respondent No.4 vide sale deed No. 16258 dated 14.11.2005. It was also pleaded that the above said deed was also illegal, null and void. The appellants came to know about illegal acts of respondents/defendants No. 2 to 5 through letter dated 24.03.2005 of respondents/defendant Nos.5 and 6 and made protest through legal notices dated 31.03.2005, 09.05.2005, 15.12.2005 and representation dated 30.11.2005. The appellants also challenged misdeeds of respondents/defendants No.1 to 5 through CWP No.743 of 2006 and appellants were relegated to avail remedy before civil court vide order dated 19.01.2006. The appellant being co-sharer in the suit plot as such requested the respondents to get the same partitioned, which request was refused by the respondents. Hence they came up with the filing of the suit before the Civil Judge, Junior Division, Gurgaon.

(3.) Upon notice, respondents appeared and respondent No.1 and 3 and 4 through an application filed under Order 7 Rule 11 CPC sought for rejection of plaint on the ground that the suit is not maintainable as the partnership firm i.e. appellant No.2 on whose behalf appellant No.1 has filed the suit as its partner was not registered as such the suit was hit by Section 69 of the Partnership Act. It is was also pleaded by respondent No.2 that the firm was dissolved vide dissolution deed dated 31.3.1992. The respondent-defendant No.4 filed separate written statement by taking preliminary objections of estoppel. He pleaded that he had purchased the suit property for a consideration of '4 crore after inquiries and inspection of record with HSIDC. It was also pleaded that M/s Rama Industries was dissolved with dissolution deed dated 31.03.1992 by its partners. The plot was given to Ganga Sahai and Smt. Gindori Devi in lieu of their shares in M/s Rama Industries. Both Subhash Chand Sharma (appellant-plaintiff) and Madan Lal (Defendant- Respondent no 2) were the continuing partner of M/s Rama Industries whereas, Rama Nand (Defendant respondent no 1) got firm M/s Rama Udyog registered on 02.07.1993 along with his mother Smt. Gindori Devi as a partner. Rama Nand applied to HSIDC for issuing sale deed in favour of Rama Udyog which was executed on 13.08.1993 qua Plot No 20 in favour of M/s Rama Udyog through Rama Nand and Gindori Devi as partners. Appellant-plaintiff No.1 also gave affidavit dated 17.11.1993 admitting dissolution of M/s Rama Industries as well as creation of M/s Rama Udyog. Counsels maintained that appellant had no locus standi to file the suit.