1. A short question that arises for our consideration in this appeal is –

“Whether the dismissal of the suit in O.S. No. 1071 / 2003 on the file of I Addl. Senior Civil Judge, Bangalore Rural District, Bangalore, as not maintainable under Section 69(2) of the Partnership Act, 1932 (in short, “the Act”) calls for interference of this Court?”

2. Our answer to the above point is in the affirmative for the following reasons:

“Appellants who are plaintiffs/partners of an unregistered firm of M/s. Windsor Wings Developers, filed a suit against the defendants in O.S. No. 1071/2003 on the file of Senior Civil Judge, Bangalore Rural District, Bangalore, for the relief of declaration that the registered Sale deed dated 26.04.2003 executed by defendant No.1 is invalid, illegal and not binding on the plaintiffs, cancellation of the sale deed and for permanent injunction restraining the defendants 2 to 5 from selling, leasing, mortgaging or otherwise alienating and interfering with their peaceful possession of the suit schedule property. It is the case of the plaintiffs that the suit schedule property was purchased in the name of the Firm and RTC entries stands in the name of the Firm. In the year 2003, due to growth of I.T. corridor in the area, market value of the suit property was Rs. 30,00,000/-. The plaintiffs, in the month of March 2003, brought up the subject of selling the suit schedule property to the 1st defendant. But, the 1st defendant objected for sale. Again, when the plaintiffs raised the subject in the month of November, 2003, the 1st defendant avoided the discussion and the plaintiffs suspected the conduct of the 1st defendant and they made enquiries about the suit schedule property in the Office of the Sub-Registrar and discovered that the 1st defendant, who had no authority to sell the immovable property belonging to the Firm, without their consent had executed a sale deed dated 26.4.2003 on behalf of the Firm, in favour of the 2nd defendant for a consideration of Rs. 16,66,620/- though the property was worth more than Rs. 30,00,000/-. It is contended that the sale deed is invalid, void, fraudulent and the same is executed clandestinely with an intention of cheating the plaintiffs. In para-14 of the plaint, it is pleaded that defendants 2 to 5 are trying to dispossess the plaintiffs and also trying to alienate the suit schedule property and therefore filed the Suit for the relief, as prayed for.”

3. For the purpose of convenience ‘the appellants’ and ‘the respondents’ are hereinafter referred to as ‘the plaintiffs’ and ‘the defendants’ as arrayed in the Suit.

4. The defendants entered appearance and filed their written statement.

5. The defendants have taken up the contention that the Suit is barred under Section 69(2) of the Partnership Act.

6. The trial Court framed as many as eight issues and the issue No.5 is on the point-

“Whether the plaintiffs prove that the suit of the plaintiffs is not maintainable in view of Section 69(2) of the Partnership Act?”

The above-said issue No.5 was treated as preliminary issue. The trial Court, after hearing on the preliminary issue, answered the same in the affirmative in favour of the defendants and dismissed the Suit as not maintainable under Section 69(2) of the Act. This is impugned in this Appeal.

7. Sri. Udaya Holla, learned senior counsel appearing for the plaintiffs along with the Counsel on record submitted that the Court below erred in dismissing the suit as not maintainable under sub-section (2) of Section 69 of the Act. He further submitted that the appellants are neither enforcing any contract nor the contract of partnership and therefore the Suit is maintainable and Section 69 of the Act does not bar the suit. He has cited the following decisions:

“i) 2003 (3) SEC 229 (N.KHADERVALI SAHEB (DEAD) BY L.Rs AND ANOTHER vs. N.GUDU SAHIB (DEAD) AND OTHERS) on the point that partnership is not an independent legal entity and the Firm name is only compendious name given to partner