Chitra Venkataraman, J.@mdashThe first defendant is the appellant in this appeal before this Court. The plaintiff is the first respondent herein. The
present appeal arises out of the judgment and decree dated 27.02.2012 in O.S. No. 64 of 2010 on the file of the Principal District Judge,
Krishnagiri. The first respondent/plaintiff filed a suit for partition of the suit properties including the mining lease rights granted by the Tamil Nadu
Government, to be divided into two equal shares in metes and bounds and allotting one such divided share to the plaintiff; directing the delivery of
separate possession of the share so allotted to the plaintiff; restraining defendants-2 to 4 by a permanent injunction from in any way carrying on any
quarrying operations in the suit lands; directing the ascertainment of income from quarrying of granite from the suit lands from 12.05.2009 till the
delivery of possession of the plaintiffs share and directing the payment of half of the income so ascertained to the plaintiff; and to direct the
defendants to pay to the plaintiff the costs of the suit.
2. The case of the first respondent is that the first respondent and the appellant were close friends. As early as 1991, they had mutually agreed to
do granite quarry business jointly. With this view, the first respondent looked for lands with granite deposits, the appellant, having knowledge in the
procedures to get the mining lease from the Government, suggested that the lands should be purchased in the name of one person only.
Accordingly, as per the mutual understanding, the suit lands were purchased in the name of the appellant. According to the plaintiff/first respondent,
the sale consideration was paid in equal share by the appellant and the first respondent. The appellant and the respondents entered into a
partnership agreement on 03.07.1997, wherein, according to the first respondent, it was admitted by the appellant that the suit lands were
purchased jointly and that they would do business in granite mining in the suit lands jointly. The appellant herein accordingly applied to the
Government of Tamil Nadu for licence to quarry granite in the suit lands. Licence was granted to the appellant to carry on mining operation for
grey granite in 1.32.0 hectares, which is sub-divided as S. No. 45/2E and 0.10.0 hectares in suit item 2, which is sub-divided as S. No. 754/1A as
per G.O. (3D) No. 88, Industries (MME-2) Department dated 12.12.2007. The agreement for quarrying between the Government of Tamil Nadu
and the appellant was entered into on 12.05.2009 for a period of twenty years from 12.05.2009 to 11.05.2029.
3. It is stated that taking advantage of the injury suffered in the road accident on 05.02.2005, in contravention of the partnership agreement dated
03.07.1997, without informing the first respondent, the appellant herein acted against the interests of the respondents. Immediately thereon, the first
respondent caused a suit notice on 20.06.2006, calling upon the appellant to carry on the quarrying business along with the first respondent. The
appellant, however, did not reply. But, when the first respondent met the appellant in the last week of June, 2006, the appellant assured the first
respondent that he would not contravene the partnership agreement. The appellant also informed the first respondent about the pending application
for the grant of licence to quarry before the State Government and that they would start quarrying operation as soon as the Government granted
the mining lease. Contrary to the assurance, after getting the mining lease in June, 2009, the appellant colluded with respondents-2 to 4 to carry on
the business. In the circumstances, the first respondent filed the above suit.
4. The appellant filed the written statement denying the allegation that the suit properties were purchased in the name of the appellant, only to
facilitate the getting of a licence in the name of the appellant. He contended that the suit properties are the self-acquired properties of the appellant.
It is further stated that as the first respondent has experience in quarry business, it was decided by both of them that the first respondent would be
taken as a working partner without a capital contribution. After the purchase of lands alone, steps were taken to take the first respondent as a
working partner. After much exertion, the appellant got the Government licence to quarry. In view of the delay in getting the licence as early as
05.11.2001, the first respondent executed a cancellation deed on partnership business, received a sum of Rs. 1,50,000/- and retired from the
partnership. Thus, the first respondent had no interest or title to the suit properties. consequently, the first respondent is not entitled to any relief
over the suit property.
5. The trial Court framed the following issues for consideration:
(i) Whether the suit property is the self-acquired property of the appellant herein?
(ii) Whether the property was purchased in the name of the appellant herein for the purpose of getting quarry licence from the Government?
(iii) Whether there was partnership agreement between the first respondent and the appellant herein entered into on 03.07.1997?
(iv) Whether the plaintiff/first respondent herein is entitled to seek partition and consequently permanent injunction?
6. In support of his contention, the first respondent let in evidence as P.W. 1 and marked Exs. A1 and A2, the sale deeds relating to the suit
property and Ex. A3, the unregistered partnership deed between the first respondent and the appellant, Ex. A6, the licence granted to quarry the
granite stone to the appellant and Ex. A7, the agreement between respondents 2 to 4. On the side of the appellant, apart from his evidence as
D.W. 1, evidence was let in through D.W. 2 Vinayagamurthy, who was the attesting witness to Ex. A1.
7. In the cross-examination, P.W. 1 stated that he had paid Rs. 3,50,000/- out of the sale consideration of Rs. 7,00,000/- for the suit property. He
however, admitted that there was no evidence as regards his contribution of the purchase price for purchase of the suit property. He further
admitted that Ex. A3, the partnership deed, did not contain any recital as to the amount paid by the first respondent.
8. As far as D.W. 1 is concerned, in the cross examination, he admitted about the decision for forming a partnership to carry on quarrying
business. He took the assistance of P.W. 1 for purchasing lands. He further stated that sale consideration for the suit property was paid by the
appellant alone. In the examination in chief, he denied about the purchase of lands in his name, only in furtherance of the decision between the
respondent herein and this appellant to enter into an agreement to carry on quarrying business jointly. Ain effect, he denied the existence of any
such partnership. Thus, although in the written statement he admitted on the partnership formed with the first respondent herein, yet, in his
examination in chief, he stated that the signature in Ex. A3 was not that of his signature and also denied about the cancellation of the partnership
agreement. In the cross-examination, he pointed out that since the first respondent/plaintiff had not engaged himself in any job after the accident, he
entered into a sub contract with respondents-2 to 4 on 30.07.2007, after getting permission from the District Collector under Ex. B6 to carry on
quarrying operation. Respondents-2 to 4 were quarrying stones from the suit lands. After the death of the fourth respondent, respondents 2 and 3
were only working as labourers.
9. D.W. 2, one Vinayagamoorthy, was the attesting witness in respect of Ex. A1, under which, the appellant herein purchased the suit Schedule-I
property on 20.07.1992. He pointed out that the sale consideration was paid by the appellant herein. He further deposed in the cross-examination
that he was in the Sub Registrar''s office at the time of registration and the respondent/plaintiff was also there.
10. As far as the first issue as regards the purchase of property in the name of the appellant herein for the purpose of carrying on business on
partnership is concerned, the Court below held that Ex. A3 evidenced the forming of partnership. Based on the decision to carry on partnership
business, the property was purchased in the name of the appellant herein and even though the first respondent/plaintiff''s name was not entered into
in the sale document, yet, the first respondent/plaintiff had contributed towards the purchase of the property. Consequently, the suit properties
were not the exclusive properties of the appellant herein. In the light of the findings thus rendered, the Court below granted the relief of partition.
Aggrieved by this, the present appeal has been filed.
11. As far as the existence of partnership firm is concerned, learned counsel appearing for the plaintiff/first respondent pointed out to the admission
of the appellant in the written statement that there was an agreement between the parties to carry on business in quarrying. Given the fact that the
said averment in the written statement was also reiterated by the appellant herein in his evidence, we hold that there was a partnership agreement
between the parties. It is also a matter of relevance that Ex. A3, the partnership deed entered into by the appellant and the first respondent, clearly
point out the intention to form the partnership concern to carry on quarrying business jointly and to that end, properties were purchased in the
name of the appellant. It also reads the apprehension of the first respondent about the appellant claiming exclusive right in the business of quarrying
and which was disputed by the appellant. Hence, to evidence the agreement, the partnership agreement was entered into between the parties. The
document reads as follows:
Thus also, we agree with the submission made by the learned counsel appearing for the first respondent/plaintiff herein that even though the
appellant herein pleaded that there was a dissolution of partnership, there is no evidence at all as regards the said dissolution of the partnership.
This, however, does not help the first defendant/appellant to seek division of the suit properties as partnership properties, as the plaintiff/first
respondent has not succeeded in proving that he had contributed for the purchase of the property to be treated as the joint property available for
division. At best, Ex. A3 could be taken as an evidence as regards the forming of partnership between the appellant and the defendant to carry on
business in quarrying stones from the lands belonging to the appellant and in the event of any dispute, the aggrieved party could approach the Court
for necessary relief on the basis of the said document Ex. A3.
12. We agree with the contention of the learned counsel appearing for the appellant that there is absolutely no evidence as regards the contribution
of sale consideration by the appellant herein. Except for pleading that he had contributed money towards purchase of the property, no evidence
was let in to substantiate such a claim. Except for deposing that he contributed Rs. 3,50,000/- towards the purchase of the schedule properties, he
admitted that there are no materials to support the said contention. He admitted that Ex. A3 - partnership deed did not mention anything about his
contribution towards the purchase of the suit properties. Going by the above evidence, we do not find any good ground to uphold the judgment of
the Court below that the property in question was available for dividing it among the plaintiff/first respondent herein and the first
defendant/appellant herein as partnership properties.
13. Learned counsel appearing for the appellant further pointed out that the prayer in the suit claiming partition itself is misconceived; considering
the fact that if there be a partnership, it could only go for a dissolution as per Section 69 of the Partnership Act. In the absence of any registered
deed evidencing the existence of a partnership firm, for the purpose of dissolution u/s 69 of the Partnership Act, the decree granted in favour of the
plaintiff could not be sustained.
14. Learned counsel appearing for the plaintiff/first respondent, however, pointed out to Section 69(3) of the Partnership Act and submitted that
even in the absence of a registered deed, the suit could be maintained. Taking cue from this, the first defendant/appellant herein filed a petition
before this Court seeking leave of this Court to withdraw the suit filed by him in O.S. No. 64 of 2010 on the file of the Principal District Judge,
Krishnagiri, with liberty to file a fresh suit for the same cause of action.
15. The first defendant/appellant herein states that even though the suit had been decreed in his favour, yet, to put forward the claim on a better
legal footing and to avoid multiplicity of proceedings, the present application had been filed for favourable consideration by this Court. It is stated in
the affidavit that a question has arisen in the course of the proceedings before the Court as to whether the suit ought to have been primarily for
dissolution of partnership as contended by the appellant herein and in the event of the dissolution being ordered and the plaintiff/first respondent
herein succeeding in the suit, whether the first respondent ought to have made a claim for partition of the suit properties. Since the issue has posted
a debatable technical barrier and accordingly the prayer has to be modified, the situation has necessitated filing of the petition, seeking withdrawal
of the suit with a leave to file a fresh suit on the same cause of action. In support of his claim, learned counsel appearing for the first
defendant/appellant placed reliance on the decision of the Apex Court reported in K.S. Bhoopathy and Others Vs. Kokila and Others, particularly
to paragraph 17, and submitted that in order to do substantial justice and in the face of the fact that there existed a partnership, the prayer for
withdrawal of the suit to file a fresh suit be granted.
16. We do not think that the claim of the first defendant/appellant herein could be entertained by this Court. Learned counsel appearing for the
appellant herein referred to the decision of this Court reported in A.P.S. Bahurudeen and Another Vs. Antony and Others, wherein, the scope of
Order 23, Rule 1, C.P.C., was considered in extenso. This Court held that when a question arose before the appellate Court after adjudication of
the matter on merits as regards the claim made under Order 23 Rule 1 C.P.C., the test will be as to whether the Court is justified in depriving the
defendant of the benefit of a finding rendered in his favour after a full trial. This Court pointed out that the Court has to consider in each case, when
an application is filed in the appellate stage for withdrawing the suit with liberty to file a fresh suit, whether the defendant should be driven back to
the original position in which he was prior to the filing of the suit, even though he had come out successful after a full trial.
17. In the decision reported in K.S. Bhoopathy and Others Vs. Kokila and Others, the Apex Court administered a note of caution and pointed out
that it is the duty of the Court to satisfy itself that proper grounds existed for granting such permission for the withdrawal of the suit with leave to file
a fresh suit and in such case, the statutory mandate is not applied by merely stating that the grant of permission would not prejudice the defendants.
Thus, the law declared by this Court as well as by the Apex Court is that, for the mere asking for a prayer for withdrawal of the suit under Order
23, Rule 1, C.P.C., the Appellate Court should not grant the relief.
18. As already pointed out, the prayer in the petition is that the withdrawal of the suit would give the respondent herein opportunity to put forward
his claim on a better legal footing which would avoid multiplicity of proceedings.
19. We do not think, this would be a sufficient ground for this Court to grant the relief of dissolution of the partnership firm u/s 69(3) of the
Partnership Act. The entire case of the first respondent/ plaintiff herein is that the property in question was purchased for the purpose of carrying
on the business of quarrying. The plaint in the suit points out that in accordance with the mutual agreement between the parties, the lands were
purchased in the name of the appellant herein and that the sale consideration were paid in equal moieties by the plaintiff and the first defendant;
hence., the suit item belonged to the plaintiff and the first defendant jointly. We do not find any averment in the plaint that by such contribution, the
parties intended that the property would be a joint property of the plaintiff and the first defendant. In the absence of any evidence to support the
contention by the first respondent, that too taken in the evidence only, it is difficult to draw an inference that the suit properties in question were
joint properties purchased for the purpose of exploiting them as partnership properties. In any event, as already pointed out, since the plaintiff has
not substantiated his case as regards his contribution, we do not find, any useful purpose would be served by granting the relief to the first
defendant to withdraw the suit with liberty to file a fresh suit for dissolution of the partnership. Hence, the subject matter of the plea in the present
case as well as in the proposed suit by the withdrawal, being on the self-same suit properties, there being no evidence to support the claim that the
suit properties were the joint properties of the appellant and the first respondent, the grant of prayer herein is not going to advance anybody''s
cause. A reading of the plaint, particularly in paragraphs 6 and 7, shows that on account of the appellant herein acting against the interests of the
first respondent/plaintiff herein, by permitting respondents-2 to 4 to quarry and remove the stones from the suit lands, the interests of the first
respondent/plaintiff is greatly prejudiced, necessitating the filing of the suit for partition of the lands including the mining rights and lease rights
granted by the Government. The Court below framed the issues as to whether there was any agreement on the partnership; whether the suit
properties were purchased in the name of the appellant for the purpose of getting the quarry lease and whether there could be a partition to have
separate possession of the properties. Thus, on the issues raised, even with the finding on the existence of the partnership firm, it is difficult to grant
the prayer on the suit properties. In the circumstances, we reject the plea of the first respondent seeking leave of the Court for withdrawal of the
suit. We, however, make it clear that with the finding on the existence of the partnership, the consequences flowing therefrom is a totally different
relief, on which no prayer was sought. In the light of the view that we have taken, the M.P. No. 4 of 2012, filed for withdrawal of the suit with
liberty to file a fresh suit on the same cause of action, stands dismissed. As far as the issue of dissolution is concerned, we hold that the plaintiff has
not proved his case as regards the purchase of the property as available for any division and the prayer in the suit for partition itself is
misconceived. Consequently, we allow the appeal in part and set aside the judgment to the extent stated above. No costs. Connected M.P. Nos.
1 to 3 of 2012 stand closed.
