DHANTI DEVI Vs. KARTAR SINGH

JUDGEMENT

(1.) This second appeal arises out of a suit filed by the plaintiff-respondent No. 1 under the provisions of Order 21, Rule 63 of the Civil P. C.

(2.) The relevant facts giving rise to this appeal are as follows: In the year 1936 Dewan Singh (since deceased) and Gurbux Singh, defen- dam No. 2, started a business in copartnership in the name and style of M/s. Vishwakarma Furniture Works. Both of them came from different families. The plaintiff Kartar Singh is the brother of Gurbux Singh and the appellant Dhanti Devi (defendant No. 1) is the widow of Dewan Singh. The plaintiff also impleaded his brother Gurbux Singh as defendant No. 2 and Bir Singh, a brother of Dewan Singh as defendant No. 3. The two daughters of Dewan Singh were also made defendants Nos. 4 and 5. By a sale deed dated 11-1-1946 (Ext. 3) some landed properties appertaining to holding Nos. 390, 434 and 609 bearing Plot No. 1427 in Mauza Jugsalai, fully described in Schedule A to the plaint were purchased jointly in the names of Kartar Singh, Gurbux Singh, Bir Singh and Dewan Singh. Later on, by another sale deed dated 29-2-1956 (Ext. 3-a), another property appertaining to Plot No. 1427 bearing holding No. 608 in Mauza Jugsalai was purchased in the names of Kartar Singh and Bir Singh. On the death of Dewan Singh the partnership was reconstituted on 15-7-1961 between Gurbux Singh and Dhanti Devi, but soon thereafter, i.e., on 18-4-1962. Dhanti Devi instituted a title suit in the Court of the Subordinate Judge at Jamshedpur for dissolution of the firm and accounts of M/s. Vishwakarma Furniture Works. The dispute was referred to an Arbitrator who gave an award in the matter. It appears that the Arbitrator not only dissolved the firm and struck the accounts between the erstwhile partners, but also purported to distribute the assets of the firm between the two partners, namely, defendants Nos. 1 and 2, The Arbitrator allotted the Vishwakarma Furniture Works, a building and cash of Rs. 1,28,433.51 to Gurbux Singh and the structure Schedules A and B lands and a cash of Rs. 88,304.87 to Dhanti Devi, the appellant. The above award was made a rule of the Court and decree was passed in terms thereof. It may be mentioned that the properties covered by Schedules A and B lands were allotted to the share of Dhanti Devi treating them as the assets of the firm. Dhanti Devi thereafter filed Execution Case No. 60 of 1965 seeking delivery of possession in terms of the decree aforesaid in respect of the lands.

(3.) The case of the plaintiff is that he was not aware of the above proceedings inasmuch as he was not at all interested in the business of the firm, but when the execution proceeding was started and he became aware of the efforts of Dhanti Devi to take delivery of possession over the entire Schedules A and B lands in which he had share to the extent of l/4th in Schedule A lands and 1/2 in Schedule 2 lands, in terms of sale deeds mentioned above, he filed an application under Order 21, Rule 58 of the Code. The Executing Court, however, by its order dated 28-5-1966 rejected the claim of the plaintiff who accordingly instituted the present suit. The plaintiff pleaded that the properties in suit were not the partnership properties and that he was in exclusive possession of his share therein in his own rights and, therefore, the same could not be allotted to defendant No. ], treating them as the assets of the firm. He accordingly prayed for a declaration that defendant No. 1 was not entitled to take delivery of possession over the properties to the extent of his share in execution of the decree, i.e., 1/4 in Schedule A lands and 1/2 share in Schedule B lands. He also sought for a permanent injunction restraining the said defendant from taking delivery of possession over the aforesaid property.