IMPORTANT POINT
Bar under Section 69(1) of Partnership Act would not be applicable when suit is filed by person/partner for dissolution of a firm or for accounts of a dissolved firm, or any right or power to realise property of a dissolved firm.

JUDGMENT (ORAL)

The appellant-original plaintiff has preferred this Second Appeal under Section 100 of the Code of Civil Procedure against the judgment and decree passed by the District Court, Surendranagar, dated 19.06.1996 in Civil Appeal No.21 of 1992, whereby, it was held that the plaintiff-appellant is tenant having exclusive tenancy rights pertaining to suit shop and rest of the prayer for permanent injunction came to be rejected by the Appellate Court, the plaintiff-appellant has preferred the present Second Appeal.

2. The appellant is the plaintiff and the respondents are the defendants before the Trial Court. For the brevity and convenience, the parties are referred to in this judgment as per the character assigned to them i.e. of the plaintiff and the defendants.

3. The appellant - original plaintiff had instituted a Regular Civil Suit No.287 of 1985 against the respondents-original defendants herein, inter alia, praying for declaration and for permanent injunction in respect of the shop situated near Gate Station, Surendranagar. It was the case of the plaintiff that he was a tenant of the suit shop and subsequently he entered into partnership firm with defendant Nos.1 and 2 and one Shantilal Maganlal, whereby, the defendants were permitted to use the suit shop as a ‘licensee/permissive user’ to carry on the business of selling clothes in the suit shop and in respect thereof, a Deed of Partnership was entered into between them on 20.08.1977. The said partnership between the parties was the “Partnership at Will”, and, the firm was an unregistered one. Thereafter, one of the partners of the firm, namely Shantilal Maganlal expired and as a result thereof administrator of the family of the late Shantilal Maganlal i.e. the defendant No.3 was inducted in the business of the partnership as a partner and consequently the firm continued with its business by constituting a new partnership firm by a fresh deed of partnership which was an unregistered one and the partnership was the “Partnership at Will”.

3.1 According to the plaintiff, on 16.04.1985, the plaintiff had sent a notice to the defendants herein in terms of Section 43 of the Partnership Act, 1932, dissolving the partnership between the parties and pursuant to the said notice, the partnership between the parties stood dissolved. It is the case of the plaintiff that by virtue of dissolution of the partnership, the permission/ licence, granted by the plaintiff to the defendants to use the suit shop stood revoked and therefore, the defendants were bound to hand over the possession of the suit shop to the plaintiff who is the original tenant of the suit shop, in terms of the provisions of Transfer of Property Act, 1882 and the Indian Easements Act, 1882, which entitle the landlord to recover the possession of the immovable property upon termination/revocation of the permission to use such immovable property. Upon these facts, the plaintiff had instituted the suit seeking permanent injunction against the defendants, restraining them from entering into the suit shop along with declaration that the plaintiff is a tenant of the suit shop.

4. The defendants have resisted the suit by filing written statements before the Trial Court vide Exh.18 and accepted that the plaintiff was the original tenant of the suit shop. They have contended that the plaintiff is residing in Bombay since many years and after formation of the Partnership, the possession of the shop has been handed over to the defendant No.1 in the year 1977 as a tenant and the possession of the defendant No.1 is as a tenant. The defendants have, inter alia, denied the allegations of the plaintiff and his right to have declaration and injunction as prayed for. They have also contended that the plaintiff is not in need of the suit property and he can have his business from the shop which is in possession of his brother and is adjoining to the suit shop. It is also contended that, as the plaintiff is not entitled for the