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IN THE HIGH COURT OF GAUHATI, ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH
DEVASHIS BARUAH, J.
On the Death of Purnakanta Konwar his Legal Heirs, Uma Konwar – Petitioner
Versus
On the Death of Bishwanath Agarwalla his Legal Heirs Geeta Devi Agarwalla – Respondent
RSA No. 122 of 2007
Decided On : 22-06-2022
Code of Civil Procedure 1908 - Order XXX Rule 1 - Order XXII Rule 10 - Section 145, 100 - Partnership Act, 1932 - Section 69(2) - Assam Land and Revenue Regulation 1886 - Section 154(1) (c) - Appeal - Effect of non-registration - Whether said substantial question of law is involved in instant Appeal and thereby would affect the litigation between the parties - Whether suit was maintainable in view of the provisions contained under Section 69(2) of Partnership Act 1932 and the respondents/plaintiffs being the partners of an unregistered partnership firm - Whether suit filed by present respondents are maintainable in view of provision contained under Section 69(2) of the Partnership Act, 1932, respondents being partners of an unregistered partnership firm - Section 154 (1)(c) of Assam Land and Revenue Regulation cannot act as a bar as regards maintainability of suit for which said cannot also be a substantial question of law involved in instant Appeal. (Para 34).
Findings of the Court :
Section 69(2) of Act of 1932 is not attracted to any and every contract referred to in the plaint as the source of title to an asset owned by the firm. In the backdrop of the above, if this Court takes into account the facts of the instant case, it would be seen that the suit in question was filed seeking declaration of right title and interest over the Schedule land; for recovery of khas possession of the Schedule land by evicting the defendant; for cancellation of the registered sale-deed; for perpetual injunction as well as for declaration that the mutation of the name of the defendant No. 1 in the suit land as per the order passed by the Sub-Deputy Collector for Mutation Case is illegal and void - The reliefs therefore sought for having nothing to do with any contract arising between the plaintiffs or their firm namely, Barbari Land Development Corporation and the defendant No. 1. The said reliefs also have nothing to do as regards any business relationship between the plaintiffs and the defendant No. 1 in course of the business relationship of the partnership firm - Court is of opinion that bar under Section 69(2) has no application to the facts of the instant case - Consequently, therefore this Court is of the opinion that the substantial question of law so formulated is not a substantial question of law involved in instant case.
Result : Appeal dismissed.
JUDGMENT :
DEVASHIS BARUAH, J.
1. Heard Mr. N.C. Das, learned senior counsel assisted by Mr. M. Borah, learned counsel for the petitioner and Mr. S. Dutta, learned senior counsel assisted by Mr. S. Dutta, learned counsel for the respondent.
2. The instant Appeal under Section 100 of the Code of Civil Procedure 1908 is directed against the judgment and decree dated 18.08.2007 passed by the Court of the District Judge, Dibrugarh in Title Appeal No. 1/2007, whereby the Appeal was dismissed thereby upholding the judgment and decree dated 12.12.2006 passed by the Court of the learned Civil Judge, Dibrugarh in Title Suit No. 27/1997.
3. The instant Appeal was admitted on 17.12.2007 by formulating the following substantial question of law in terms with Section 100 (4) of the Code:
4. For the purpose of deciding the said question of law, it is relevant to take note of the brief facts of the case. For the sake of convenience, the parties here are referred to in the same status as they stood before the trial Court.
5. The respondents herein as plaintiffs filed a suit being Title Suit No. 27/1997 seeking declaration of right title and interest of the plaintiffs in the suit land described in the Schedule to the plaint and for recovery of khas possession of the land by evicting the defendants, agents, employees and representatives and demolishing the structure, if any raised by the defendant No. 1; for cancellation of the registered sale deed No. 2878/1987 dated 09.02.1987; for perpetual injunction restraining the defendant No. 1 for selling or dispossessing the land in any manner; for declaration that the mutation in the name of the defendant No. 1 in respect to the suit land as per the order dated 06.06.1988 passed by the Sub-Deputy Collector in Mutation Case No. 799/1987-88, as illegal and void and setting aside the same and to restore the name of the plaintiffs firm i.e. “M/s Borbari Land Development Corporation” and for issuance of a precept accordingly to the concerned authority.
6. The case of the plaintiff in brief is that both the plaintiffs were carrying on partnership business of acquiring land and building of any tenor or description by purchase, lease, exchange or otherwise and any estate or interest therein and selling the same after making improvement, construction, reconstruction and division etc under the name and style of “Borbari Land Development Corporation” with its Head Office at Jyotinagar, Dibrugarh.
7. The plaintiffs purchased in the name of the said partnership firm a land measuring 34 bighas, 2 kathas, 16 lessas situated at Gabharupather Ward, under Dibrugarh Town Mouza in the name of their partnership firm from one M/S Assam Auto Agency vide a registered sale deed dated 27.04.1983 and obtained possession of the said land. The land was mutated in the name of their firm M/S Barbari Land Development Corporation in the year 1987-1988. The Defendant No. 1 requested the plaintiff No. 1 to sell some part of the land. Accordingly the plaintiff agreed to sell 3 kathas of land to the defendant No. 1 for a valuable consideration. The Defendant No. 1 paid Rs. 24,000/- as an advance against the said proposal. The plaintiff No. 1 gave possession of the land measuring 1 katha, 19¼ lecahs to the Defendant No. 1 and the land was shown to the Defendant. It was agreed that the sale deed would be executed and registered on receipt of the entire consideration. The plaintiff No. 1 gave possession of the land measuring 1 katha, 19¼ lessas to the Defendant No. 1, but the Defendant No. 1 insisted the plaintiffs to show the land measuring 3 kathas approximately, which the plaintiff No. 1 was compelled to do under the circumstances. The plaintiffs thereafter repeatedly requested to the defendant to pay the remaining balance c
Point of Law : Section 154 (1)(c) of Assam Land and Revenue Regulation cannot act as a bar as regards the maintainability of suit for which said cannot also be a substantial question of law involved ....
(1) Suit for enforcing right of avoidance of a document on the ground of fraud and misrepresentation as also statutory rights of seeking declaration and injunction can be filed by an unregistered par....
An unregistered partnership firm cannot file a suit for enforcement of a contract against a third party, as per Section 69 of the Indian Partnership Act.
Section 69(2) of the Partnership Act is not a bar for the enforcement of a statutory right or a common law right by an unregistered firm.
The court affirmed that suits regarding partnership rights can proceed even if the firm is unregistered and emphasized the requirement of proper evidence to establish claims of profit-sharing.
A suit for recovery of money by partners of an unregistered firm is not maintainable under Section 69 of the Indian Partnership Act, 1932, which mandates registration for such suits.
An unregistered partnership firm cannot enforce rights arising from a contract under Section 69(2) of the Indian Partnership Act, which prohibits such suits against third parties.
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