Judgement

RAMASWAMI, J. :- The appellant in both the appeals was one of the partners in a firm consisting of about thirty partners which was running a mill named Vasavamba Oil and Rice Mill at Vijayawada. The partnership firm owned not only a factory but also a site of the extent of about 3845 sq. yards. The total number of shares in the partnership was 160 out of which the appellant owned 23 shares. By a document dated April 15, 1940, the firm executed a lease in favour of the 1st respondent and another person of the area of the site for a period of 10 years. The lessee was permitted to construct a building for the use of a Cinema Theatre. The annual rent was Rs. 750. In the year 1948, the appellant filed O. S. No. 196 of 1948 in the Subordinate Judge s Court Vijayawada for dissolution of the partnership and for accounts. On December 20, 1951 a preliminary decree was granted in that suit. The first respondent was added as 17th defendant in that suit. He contended in that suit that the managing partner of the firm had covenanted to sell to him the site leased out and that in any event he was not liable to eviction in view of the provisions of the Madras Buildings (Lease and Rent Control) Act. In 1950 before the passing of the preliminary decree a suit was filed in the District Munsiff s Court. Vijayawada -O. S. No. 440 of 1950 by the firm and its managing partner against the 1st respondent and others seeking to evict the 1st respondent. On December 20, 1951 a preliminary decree was passed in O. S. No. 196 of 1948 but it was made subject to the rights of the 1st respondent and without prejudice to his contentions. There was a direction in the preliminary decree to sell the properties of the partnership firm and a receiver was appointed for that purpose. On February 17, 1952 the appellant was transposed as the 3rd plaintiff in O. S. No. 440 of 1950 in the District Munsiff s Court, Vijayawada. As the appellant had by then purchased 39 shares from some of the partners in addition to the 23 shares already owned by him, he claimed partition and separate possession of 62 shares belonging to him in the said suit. To obtain this relief he applied for an amendment of the plaint which was allowed. By reason of the said amendment the District Munsiff ceased to have jurisdiction over the suit and therefore he directed the return of plaint for presentation to the Subordinate Judge s court. The plaint was therefore filed in the Subordinate Judge s Court, Vijayawada and numbered as O. S. 203 of 1954. While this litigation was going on the 1st respondent who had built a Cinema Theatre on the site was actively trying to purchase the site from the co-sharers. He filed O. S. No. 124 of 1953 in the Subordinate Judge s Court alleging that all the partners of the firm except the appellant had entered into an oral agreement with him on July 6, 1952 to sell 137 shares in the site and that in pursuance of the agreement partners who owned 98 shares had executed sale deeds in his favour and the other partners owning 39 shares did not do so. The 1st respondent therefore claimed specific performance of the agreement to sell 39 shares owned by the said partners and contended that sale of those shares in favour of the appellant was not binding upon him. The suit was transferred to the District Court of Masulipatam and was numbered as O. S. No. l of 1956. The suit referred to earlier in which the appellant claimed partition and recovery of possession of his 62 shares was also finally transferred to the District Court of Masulipatam and numbered as O. S. No. 2 of 1956 As the main dispute in both the suits was common, namely whether the appellant was entitled to the 39 shares purchased by him from the partners owning them or whether by reason of the prior oral agreement the 1st respondent was entitled to a conveyance in respect of the shares it was agreed between the parties that evidence should be taken in both the suits together and what was evidence in the-