Smt. Sunita Devi & Ors. v. Satish Mittal & Ors.

CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Mohit Garg, Advocate for the petitioners. * * * L. N. MITTAL, J. (Oral) : Defendants no.3 to 5 have filed the instant revision petition under Article 227 of the Constitution of India having remained unsuccessful in both the courts below. Respondent no. 1 Satish Mittal filed suit alleging that he is owner in possession of 11 kanals 18 marlas land to the extent of 1/4th share and defendants no.3 to 5 are owners in possession of 3/4th share. However, learned counsel for the petitioners states that the petitioners do not challenge the orders of the courts below pertaining to said 11 kanals 18 marlas land in the instant revision petition. Respondent no.1 also alleged in the suit that he is partner of M/s Shree Radhey Stone Crusher to the extent of 25%, whereas Dharam Chand, Mange Ram and Moti Ram are the other partners in the firm to the extent of 25% each.

The said firm is owner in possession of land measuring C. R. No. 685 of 2010 2 8 kanals comprising of khewat no. 429, khasra no.231//21 in Village Khanak, vide registered sale deed dated 12.08.2005. Plaintiff is in exclusive possession of the said land and defendants have no right, title or interest therein, but defendants no.3 to 5 (petitioners herein), in collusion with defendants no.1 and 2, want to install a Stone Crusher over the said land (hereinafter referred to as disputed land). Defendants no.3 to 5 want to take illegal possession of said disputed land without any right to do so. Along with the plaint, the plaintiff moved application for temporary injunction under Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure (in short – CPC). Learned Additional Civil Judge (Senior Division), Bhiwani, vide impugned order dated 11.06.2009 (Annexure P-7), allowed the plaintiff's application for temporary injunction and restrained defendants no.3 to 5 from constructing Stone Crusher on the disputed land of khasra no.231//21 (and also on land measuring 11 kanals 18 marlas) and from changing the nature of the said land till disposal of the suit.

First appeal preferred by defendants no.3 to 5 against the said order has been dismissed by learned Additional District Judge, Bhiwani vide impugned judgment dated 05.11.2009 (Annexure P-8). Feeling aggrieved, defendants no.3 to 5 have filed the instant revision petition. I have heard learned counsel for the petitioners and perused the case file. Learned counsel for the petitioners contended that initially M/s Shree Radhey Stone Crusher was sole proprietorship firm of Jagdish Kumar, who had purchased the suit land. However, partnership firm of the same name was constituted by Jagdish Kumar, Dharam Chand, Satish Kumar plaintiff, Mange Ram and Moti Ram vide partnership deed dated

31.01.2008 (Annexure P-2), all the partners having 20% share each. Contention of learned counsel for the petitioners is that the said firm never came into existence and never carried on any business in the disputed land. It is further contention of learned counsel for the petitioners that a C. R. No. 685 of 2010 3 subsequent partnership firm with the same name was constituted on

20.03.2009 by Rajender Singh (husband of defendant no.3), Jagwanti (defendant no.4), Surender Singh (husband of defendant no.5) and Dharmender Singh. Jagdish Kumar also used to be partner of the said firm, but he retired from it vide retirement deed dated 20.03.2009. It was accordingly contended that the aforesaid partners are owners in possession of the disputed land. The same stand was taken by defendants no.3 to 5 in their written statement and reply to the injunction application. On careful consideration of the aforesaid contentions, I find no force therein. Partnership deed (Annexure P-2) reveals that firm M/s Shree Radhey Stone Crusher was formed w.e.f. 01.04.2007 vide partnership deed dated 31.01.2008 with Jagdish Kumar, Dharam Chand, Satish Kumar plaintiff, Mange Ram and Moti Ram being equal partners i.e. 20% share each. It appears that Jagdish Kumar had subsequently retired and therefore, remaining four partners including the plaintiff have 25% share each in the firm. Partnership deed Annexure P-2 reveals that ownership of land of the Crusher i.e. ownership of the disputed land measuring 8 kanals, which existed in the name of M/s Shree Radhey Stone Crusher through Jagdish Kumar, shall be deemed to be owned and possessed by the partnership firm of same name by all the partners according to their respective shares and even licenses, securities, goodwill etc. existing in the name of earlier proprietorship firm of the same name shall be deemed to be of the new partnership firm owned by the five partners. From this partnership deed, it thus becomes apparent that the firm, having plaintiff as one of its partners, is owner in possession of the disputed land including Stone Crusher being run therein and defendants no.3 to 5 prima facie have no right, title or interest therein. No dissolution deed dissolving the said partnership firm has been placed on record to depict that the said firm is not in existence. On the other hand, defendants no.3 to 5 have pleaded that partnership firm with the aforesaid name was formed vide deed dated C. R. No. 685 of 2010 4

20.03.2009 and vide retirement deed of the same date, Jagdish Kumar retired from the partnership firm. However, no such partnership deed or retirement deed has been placed on record of the instant revision petition. On the other hand, it is not explained as to who were the partners in the said firm prior to 20.03.2009 i.e. the date on which Jagdish Kumar allegedly retired from said firm and other partners i.e. Rajender Singh, Jagwanti, Surender Singh and Dharmender Singh were inducted as new partners. In any event, with constitution of new partnership firm of the same name, new partnership firm would not automatically become owner in possession of the disputed land, which is owned and possessed by the partnership firm constituted vide partnership deed Annexure P-2, in which plaintiff is one of the partners. In view of the aforesaid, I am of the considered opinion that plaintiff-respondent no.1 made out a strong case for grant of temporary injunction. Petitioners have no prima facie case at all. There is no infirmity much less illegality in the orders of the courts below. The revision petition is bereft of any merit and is accordingly dismissed. However, nothing observed herein above shall be construed to be an expression of opinion on merits of the suit. February 02, 2010 monika ( L. N. MITTAL ) JUDGE