Delhi High Court
Suraj Deo Parsad vs Prem Lata on 17 July, 2017
$~21
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 17th July, 2017
+ RFA 433/2017
SURAJ DEO PARSAD ..... Appellant
Through: Mr. Jagdish Singh Rajput, Adv.
versus
PREM LATA ..... Respondent
Through: None.
CORAM:
HON'BLE MR. JUSTICE J.R. MIDHA
JUDGMENT (ORAL)
1. The appellant has challenged the judgment dated 17 th December, 2016
whereby the appellant's suit for possession has been dismissed by the Trial
Court.
2. The respondent is holding Tehbazari rights with respect to the
site/shop measuring 6'x 4'at the foot path of Old Lajpat Rai Market,
Opposite Gauri Shankar Mandir, Delhi-110006. The terms of the Tehbazari
are recorded in the letter dated 27th March, 2003 issued by Municipal
Corporation of Delhi in favour of the respondent. The appellant claims to
have entered into a partnership with the respondent on 05 th May, 2003
according to which each party would be entitled to 50% share in the profits
and losses. The appellant claims to have jointly carried out the partnership
from 2003 to 06th February, 2009 when the respondent and her husband
broke open the lock on the appellant's counter and committed theft of the
electronic accessories including two C.D. players whereupon the appellant
reported the matter with the police on 07th February, 2009. According to the
appellant, the respondent threatened the appellant on 16th February, 2009
and attempted to throw the appellant's counter on 21 st April, 2009. The
appellant instituted a suit, for mandatory and permanent injunction. During
the pendency of the said suit, the respondent removed the appellant's
counter in the intervening night of 12th and 13th July, 2009 whereupon the
appellant reported the matter with the police on 22nd July, 2009. The
appellant amended the suit and substituted the prayer of mandatory and
permanent injunction with the prayer for possession of Tehbazari site/shop.
3. The Ld. Trial Court held the suit to be barred by Section 69 of the
Indian Partnership Act, 1932 as the alleged partnership firm was
unregistered. The Ld. Trial Court examined the appellant's case on merits
and held that the alleged partnership deed does not bear the signatures of the
respondent. The Ld. Trial Court further held that the Tehbazari rights cannot
be let out or sublet as per the terms of the letter dated 27 th March, 2003 and,
therefore, appellant cannot claim any right for Tehbazari. The Trial Court
further held that the appellant's entitlement to half of the site would have
arisen after dissolution of the firm in terms of clause 10 of the partnership
deed but the alleged partnership has not been dissolved and, therefore,
appellant has no claim even if the partnership deed was held to be genuine.
4. Learned counsel for the appellant urged at the time of hearing that the
appellant originally filed a suit for mandatory and permanent injunction
which was converted into a suit for possession. It is submitted that the suit
for mandatory and permanent injunction was not hit by Section 69 of the
Indian Partnership Act, 1932 and, therefore, the subsequent amendment of
the suit would not bar the prayer of possession. It is further submitted that
the defendant's defence was struck-off by the Trial Court by order dated 16th
October, 2012 and, therefore, Trial Court ought to have decreed the
appellant's suit. It is further submitted that the findings of the Trial Court
holding that Ex.PW1/1 did not bear the signature of the respondent is based
on the report of the handwriting of respondent which is disputed by the
appellant.
5. Vide order dated 28th April, 2017, this Court requisitioned the Trial
Court record which has been received and seen by the Court.
6. There is no merit in this appeal. The appellant's prayer for possession
is clearly barred by Section 69 of the Indian Partnership Act, 1932. There is
no infirmity in the finding of Trial Court that Ex.PW1/1 does not bear the
signature of the respondent. The finding of the Trial Court is based on the
comparison of the admitted and disputed signatures of the respondent as well
as statement of PW-3 who deposed that Ex.PW1/1 was not executed in her
presence. This Court agrees with the Trial Court that even if the partnership
deed is held to be genuine, the appellant cannot claim any right till the
dissolution of the firm. This Court also agrees with the Trial Court that the
respondent has no right to let out or sublet the Tehbazari rights.
7. The appeal is dismissed.
8. Copy of this judgment be sent to the respondent.
JULY 17, 2017 J.R. MIDHA, J.
ak
