The necessity of concrete proof for the existence of a partnership firm and the requirement for a registered deed of conveyance for the transfer of immovable property.

JUDGMENT

Alka Sarin, J. - The present regular second appeal has been preferred by the defendant-appellants against the judgments and decrees passed by both the Courts below whereby the suit for declaration filed by the plaintiff- respondents has been decreed. The lower Appellate Court has also directed the defendant-appellants to execute and register the sale deed qua their shares in the suit property in favour of the plaintiff-respondents.

2. Brief facts relevant to the present lis are that the plaintiff- respondents filed a suit for declaration to the effect that they are owners in possession in equal shares of the suit property and that the defendant- appellants have no concern with it and that the plaintiff-respondents are entitled to get their names recorded in the municipal and other relevant records. The suit property is a double-storeyed Shop No.86 in Rajguru Market, Hisar. As per the plaintiff-respondents the suit property had been purchased by the parties to the suit and they were all, thus, owners in equal shares. It is further averred that after dissolution of the partnership firm the issues were settled and the suit property came to the plaintiff-respondents and the defendant-appellants were compensated through cash and kind and since then the plaintiff-respondents were in possession of the suit property. However, since the defendant-appellants failed to get the suit property recorded in the names of the plaintiff-respondents in the municipal records, the present suit was filed.

3. On notice, written statement was filed by the defendant- appellants who stated that the suit property was jointly owned by all the parties to the suit, the partnership had not been dissolved and the deed of dissolution did not bear the signatures of all the partners, it was denied that any money had been paid to the defendant-appellants and that the plaintiff- respondents had become owners of the suit property.

4. The plaintiff-respondents filed a replication controverting the stand taken in the written statement and reiterating the contents of the plaint. On the pleadings of the parties, the following issues were framed :

(i) Whether the plaintiffs are owners in possession of the disputed property ? OPP

(ii) Whether the plaintiffs are estopped by their own act and conduct from filing the suit ? OPD

(iii) Whether proper court fee has not been affixed on the plaint ? OPD

(iv) Whether the suit of the plaintiffs is not maintainable in the present form ? OPD

(v) Whether the plaintiffs have no cause of action ? OPD

(vi) Relief.

5. The Trial Court, vide judgment and decree dated 06.11.1996, held that the plaintiff-respondents were owners in possession of the suit property and decreed the suit of the plaintiff-respondents. Aggrieved by the said judgment and decree passed by the Trial Court, an appeal was preferred by the defendant-appellants which was partly accepted vide judgement and decree dated 23.01.1998. The lower Appellate Court declared the plaintiff- respondents in possession of the suit property as tacit owners and also passed a decree for mandatory injunction directing the defendant-appellants to execute and register sale deeds within two months qua their shares in the suit property in favour of the plaintiff-respondents on payment of stamp duty and registration charges. Hence, the present regular second appeal.

6. Learned senior counsel for the defendant-appellants has contended that the Courts below have erred in decreeing the suit of the plaintiff-respondents. According to him there was nothing on the record to prove that the defendant-appellants had put their shares in the suit property in the partnership business and, therefore, they remained owners thereof even after the alleged dissolution. It is further contended that neither is the partnership of all the four parties to the suit in any business proved nor it's dissolution. He also contended that the lower Appellate Court exceeded it's jurisdiction by passing a decree for mandatory i