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NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 10426-10427  OF 2013 (Arising out of SLP (C) Nos. 22473-22474 of 2013)

Leela Shashikant Purandare                    ....Appellant

versus

Arvind Vishnu Govande (dead) through L.Rs. ....Respondents  

J U D G M E N T  

G.S. SINGHVI, J.

1. Leave granted.

2. These appeals are directed against judgment dated 30.4.2013 of the  

learned Single Judge of the Bombay High Court whereby he dismissed the second  

appeal and the civil application filed by the appellant and upheld judgment and  

decree  dated  31.12.2012  passed  by District  Judge,  Pune (for  short,  ‘the  lower  

appellate Court’)  in Civil Appeal No.325/2012 confirming judgment and decree  

dated 18.2.2012 passed by Civil Judge (Junior Division), Pimpri (for short, ‘the trial  

Court’) in Regular Civil Suit No.614/2000 filed by respondent - Arvind Vishnu  

Govande, who is now represented by his legal representatives, for declaration and  

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possession of the suit property.

3.  After  obtaining  the  degree  of  M.Tech.  from  Indian  Institute  of  

Technology, Kharagpur, the respondent started working as Engineering Consultant.  

In 1979,  he purchased Plot  No.W-97,  Bhosari Industrial Area,  Pimpri (the suit  

property)  on  lease  basis  from Maharashtra  Industrial  Development  Corporation  

(MIDC) by registered deed dated 24.10.1979.  After taking possession of the suit  

property, the respondent obtained water supply and electric connection in his name.  

In 1988, the appellant and her relative (brother, viz., Subhash Anant Kogekar) are  

said to have approached the respondent for permission to use the suit property for  

lunch and  dining purposes  of  their  employees.  The  respondent  agreed  to  their  

request. After few months, the appellant started using the shed constructed over the  

plot  for manufacturing activities and also  made structural changes/modifications  

without his knowledge and consent.  On coming to know of this, the respondent  

sent letter dated 6.6.1990 to the appellant by Registered A.D. and called upon her  

to  immediately  stop  the  manufacturing  activities  and  desist  from making  any  

structural changes.  He also asked the appellant to vacate the shed and the premises.  

The appellant refused to accept the letter. She also did not respond to letters dated  

6.11.1990,  7.11.1990  and  30.11.1990.  The  respondent  then  approached  the  

Executive  Engineer,  MIDC  and  the  concerned  officer  of  Maharashtra  State  

Electricity Board (MSEB) for disconnection of water and electricity supplies. The  

electricity was disconnected on 15.1.1991 and the meter was removed. Thereupon,  

the appellant filed Suit (RCS No.101/1991) against MSEB without impleading the  

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respondent as party and sought injunction against disconnection of the supply of  

electricity. On an application made by the respondent, the trial Court ordered his  

impleadment as defendant in RCS No.101/1991.  That suit was finally dismissed by  

the trial Court vide order dated 8.2.1993.  

4. Since the appellant did not vacate the suit property, the respondent  

filed  Special  Civil  Suit  No.1634/1993  (re-numbered  as  Regular  Civil  Suit  

No.614/2000) for possession and award of compensation at the rate of Rs.500 per  

day with interest.  He pleaded  that  the appellant  was  neither  his  partner  in the  

business nor a licensee of the suit premises and she was unauthorisedly occupying  

the same; that he had given the suit property to the appellant and her relative for  

lunch and dining purposes of their employees but she started using the same for  

manufacturing activities and also made structural changes without his knowledge  

and consent and without permission and that she did not vacate the suit premises  

despite repeated requests.        

5. In the written statement filed by her, the appellant averred that the suit  

property is not owned and possessed by the plaintiff-respondent alone and that she  

was in possession thereof as partner of Active Engineers and this fact has been  

concealed  by  the  respondent.   The  appellant  denied  that  she  or  her  relative  

approached the respondent for permission to use the suit property for lunch and  

dining purposes of their employees or that she started using the same without the  

former’s knowledge and consent for manufacturing activities and that she had made  

structural changes.   The appellant claimed that  the respondent was  carrying on  

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business of sale and manufacturing of engineering and chemical items in the name  

and style of M/s.  Active Engineers in partnership with her husband Shashikant  

Mahadeo Purandare and after his death on 1.11.1988, the respondent offered to  

admit her as partner and to form a new partnership.  She accepted the offer and a  

partnership  deed  was  executed  by  them on  23.11.1988;  that  in  terms  of  the  

partnership deed, the main office of the partnership was located in the suit property,  

which was treated as the respondent’s investment in the partnership; that she had  

agreed  to  invest  Rs.1,25,000  towards  capital  and  the  profit  ratio  between  the  

partners was to be 51% and 49%;  that she spent Rs.1,25,000 for construction of  

factory  shed  and  commenced  business;  that  the  respondent  sent  letter  dated  

10.12.1988 to the Shop Inspector about the change of partnership and registration  

was also made under the Sales Tax Act in the name of M/s. Active Engineers,  and  

that at the time of allotment, there was a factory shed admeasuring about 600 sq. ft.  

and she made additional construction of about 800 sq.  ft.  She also constructed  

mezzanine floor  in the  factory and  installed  furniture  and  fixtures  by  spending  

Rs.3,00,000.  The appellant also raised an objection to the maintainability of the  

suit on the ground that the partnership is not registered.  She finally pleaded that the  

respondent cannot seek her eviction unless he settles all the disputes and gets the  

partnership dissolved.

6.      On the pleadings of the parties,  the trial Court framed the following  

issues:  

“ISSUES

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1. Does plaintiff prove that the suit plot was allotted to him alone by MIDC to  run his factory?

2. Does  the plaintiff further prove that  on the request  of defendant and her  relatives he allowed the defendant to make use of W-97 plot for lunch and dining  purposes of her employees?

        3. Does  plaintiff further  prove  that  the  defendant  was  asked  to  vacate  the  premises and asked to give the possession?  

4. Whether the plaintiff is entitled for declaration as prayed and possession of  the suit premises?

5. Does the defendant prove that she is partner along with plaintiff and suit plot  was allotted and purchased by the firm and she has share in the plot as partner?

6. Whether defendant is entitled for compensatory cost of   Rs.5000/-?

7.  Whether the plaintiff is entitled for compensation of Rs. 500/- per day from  the defendant from the date of filing of the suit till the disposal of the suit?

8. What relief and cost?”

7. The  respondent  examined  himself  as  PW-1,  Rajaram  Tukaram  

Bhujbal, an employee of MIDC, as PW-2, Senior Clerk Tax Assistant of Pimpri  

Chinchwad Municipal Corporation as PW-3 and produced documents, which were  

marked as Exhibits P-52, 54, 55, 56, 57, 63, 64, 65, 72 and 73.  

8. The appellant did not enter the witness box. Instead, her brother and  

power of attorney holder Subhash Anant Kogekar filed affidavit dated 8.9.2008  

(Exhibit 210).  He also produced documents which were marked as Exhibits 91 to  

107, 112 to 161 and 213 to 216. Sanjay Vishwanath Salunkhe, an employee of  

Cosmos Bank, Khadki Branch was examined as DW-1.  Shri Salunkhe produced  

certified copy of Account Opening Form, which was marked as Exhibit 244. Shri  

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Ravmdra  Vasantrao  Kakade,  handwriting expert  was  examined as  DW-3.   He  

produced his opinion as Exhibit 254.  

9. After analyzing the oral and documentary evidence produced by the  

parties, the trial Court decided all the issues in favour of the respondent and decreed  

the suit.  The trial Court held that the respondent has succeeded in proving the  

allotment  of  suit  property  to  him  by  MIDC  and  decided  issue  No.1  in  the  

affirmative. While dealing with issue Nos. 2 and 3, the trial Court referred to the  

admission made by Subhash Anant Kogekar that the plaintiff-respondent had issued  

letter dated 6.6.1990 for delivery of possession and held that the respondent had  

allowed the relatives of the appellant to use the suit property for lunch and dining  

purposes  but  she  used  the  same  for  manufacturing  activities  and  also  made  

structural changes without his consent.  The trial Court rejected the appellant’s plea  

that the respondent had executed partnership deed dated 23.11.1988 inducting her  

as partner and she had made investment.  The findings recorded by the trial Court  

on these two issues are extracted below:    

“Though the defendant has specifically pleaded in WS that  deed of  partnership dated 23/11/88 was executed. The defendant failed to prove  the existence of partnership firm by producing registered partnership  deed  on  record.  The  partnership  deed  produced  on  record  by  the  defendant are  not registered documents as  per  Section 17 of Indian  Partnership  Act.  The  documents  of  partnership  is  compulsorily  registerable.  Section  6  of  Indian  Partnership  provides  mode  of  determining existence of partnership. It is specifically provided in this  section that mere sharing of profit or payment of contingent does not  make  a  person  partner  of  the  firm.  As  per  section  69  of  Indian  Partnership Act no suit to inference any right arising from contract shall  be instituted by or on behalf of any person suing as partner in the firm  against the firm or any person alleged to be or to have been partner in  

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the firm unless the firm is registered. In the present suit, the partnership  deed, produced on record is unregistered partnership deed. The plaintiff  has  categorically  denied  the  existence  of  relation  of  partnership  between  him and  the  defendant  in  her  cross-examination.  In  such  situation, in view of the provisions of section 69 of the Partnership Act  the defendant is not entitled to raise plea that she is in possession of the  suit  property as  a  partner of M/s,  Active Engineers i.e  unregistered  firm. It  is  pertinent  to  note  here  that  during cross  examination the  defendant's  power  of  attorney  holder  Mr.  Subhash  Kogekar  has  deposed  that  neither  himself  nor  the  defendant  have  executed  any  registered document in respect of the suit property. It is pertinent to  note here that the defendant herself has not stepped into the witness  box and has not lead oral evidence. In such a situation, the evidence  given by D.W. I Subhash Kogekar as power of attorney holder of the  defendant  is  restricted  to  the  facts  which  are  within  his  personal  knowledge. In such situation, in absence of registered partnership deed  the  defendant  has  failed  to  prove  that  she  is  in  possession of  suit  property in capacity of partner of M/s. Active Engineers i.e. the alleged  partnership firm between the plaintiff and defendant. The defendant has  produced  on  record  electricity  bills  at  Exh.112  to  161,  receipt  of  Municipal Taxes at Exh 215, 99, 103, 104, 105,  106, 107, 216 and  notice issued by PCMC in payment of Municipal Taxes Exh.100, 101.  In all these documents i.e in Municipal Tax receipts and notice issued  by PCMC the name of M/s.  Diamond Engineers and Fabrications is  shown  as  possessor  of  the  suit  property.   As  per  the  defendant's  contention  the  plaintiff  and  defendant  were  carrying  on  alleged  partnership business in the name of M/s.  Active Engineers.  In such  situation, onus shifts to  the defendant to  explain how the firm M/s.  Diamond  Engineers  and  Fabrication  is  shown  as  possessor  of  suit  property. So far as the electricity bills are concerned they stand in the  name of  the  plaintiff.  It  is  also  pertinent  to  note  here  that,  merely  because the defendant or M/s. Diamond Engineers and Fabricators are  paying the Municipal Taxes and Electricity charges that in itself does  not create any right, title, interest in their favour in respect of the suit  property.  The defendant examined Sanjay Salunkhe an employee of  Cosmoss Bank, branch Khadki as P.W.I at Exh.242, he has produced  account  opening form dated  04/01/1986  of  account  of  M/s.  Active  Engineers at Exh. 244, D.W.2 Sanjay has deposed that the Form Exh.  244  bears  signature  of  the  plaintiff  Arvind  Govande  and  Shri.  Shashikant Purandare. But in the cross examination he has deposed that  while opening an account the photograph of account holder is obtained  on account opening form but no such photograph of plaintiff is affixed  on Exh.244. This witness has further deposed in the cross examination  that the bank never demanded residential proof, photograph, and pan  

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number  from the  plaintiff.  The  bank  never-issued  any letter  to  the  plaintiff for producing registered partnership deed and lease deed of  suit  property.  In such situation,  merely because  an account opening  form for the account of M/s. Active Engineers is produced on record it  cannot be said that the plaintiff had entered into partnership and had  applied for opening of account of partnership firm. As it  is  already  discussed above, the evidence required for proving existence of relation  of  partnership  is  production  of  registered  partnership  deed  in  its  absence the evidence given by the bank employee regarding opening  account in the name of partnership firm is not-proper and sufficient.”

Issue No.4 was decided by the trial Court in the affirmative and issue No.5 was  

decided in the negative by making the following observations:

“As I have already discussed above, that the plaintiff has proved that  the defendant and her relative had requested him to allow the defendant  to use the suit property for lunch and dining of defendants employees  and the plaintiff had called the defendant to vacate the suit property  vide letter dated 07/11/1990 at Exh. 54 and 30/11/90 at Exh. 55. The  defendant has failed to prove that she is in possession of suit property  in the capacity of partner of M/s. Active Engineers. In such situation,  as the defendant is holding the possession of suit property in spite of  request  of  the plaintiff to  vacate  the  suit  property the  defendant  is  trespasser in the suit property. Therefore, the plaintiff is entitled to get  relief of declaration that the defendant is trespasser of the suit property  and is illegally occupying the suit property. The plaintiff is also entitled  to receive the possession of suit property. The defendant has failed to  prove that she is plaintiff’s partner and the suit property was allotted  and purchased by the firm and thereby she is having any right, title,  interest  in  the  suit  property.  Hence,  I  answer  issue  no.  4  in  the  affirmative and issue no. 5 in the negative.”

10. The  lower  appellate  Court  independently  analysed  the  evidence  

produced by the parties including the admissions made by Subhash Anant Kogekar  

and held that the appellant has failed to prove the opening of joint account by her  

husband and the respondent in Cosmos Bank in the name of partnership and, in any  

case,  mere  opening  of  account  in  the  name  of  M/s.  Active  Engineers  is  not  

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sufficient  to  establish  that  respondent  had  entered  into  partnership  with  the  

appellant’s husband, which was followed by execution of partnership deed dated  

23.11.1988 with her.  The lower appellate Court also referred to the statement of  

PW-2 Rajaram Bhujbal that permission of MIDC is necessary for running business  

or for making construction over the suit property and held that in the absence of  

required  permission  neither  any  business  could  have  been  started  in  the  suit  

property nor construction could have been made on it.  As regards the payment of  

municipal taxes, the lower appellate Court noted that the receipts were issued in the  

name of M/s. Diamond Engineers and Fabricators and observed that if the business  

was being carried on in the name of Active Engineers how M/s. Diamond Engineers  

and Fabricators could have been shown as owner of the suit property.  All this is  

evinced from paragraph 15 of the judgment of the lower appellate Court, which is  

extracted below:  

“It has come in the evidence of Rajaram Bhujbal (PW-2) that the plot is  allotted to the Respondent-Plaintiff by Lease Agreement dated 24-10- 1979, He further stated that partnership is required to be registered and  they are not accepting' unregistered partnership. He further stated that in  their record there is no any document to show that Respondent-Plaintiff  entered into any partnership with any other person. Moreover, Rajaram  Bhujbal  (PW-2)  in  the  course  of  cross-examination  stated  as  per  permission granted by MIDC, it is necessary to run business, and for  partnership business,  previous permission of the MIDC is necessary.  However, there is nothing on record to show that Appellant-defendant  or  Shashikant  Purandare  applied  for  permission  to  run  partnership  business on suit plot. Moreover, it is also mandatory to obtain previous  permission of MIDC to make any construction for running partnership  business  on the plot  of MIDC.  Subhash Kogekar  (DW-1)  power  of  attorney  holder  of  appellant-defendant  in  the  evidence  stated  that  appellant-defendant or her husband are not admitted as partnership for  running business on suit plot, therefore, no any permission of MIDC  

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was  obtained  for  making  construction  on  the  suit  plot.  Moreover,  Subhash Kogekar (DW-1) in the course of cross-examination admitted  that  he  does  not  possess  any  documentary  evidence  to  show  that  respondent-plaintiff had given possession of the suit plot.  He further  admitted that in agreement, suit plot stands in the name of respondent- plaintiff.  He  further  admitted  that  on  partnership  agreements  dated  22-10-1982 and 23-12-1988, there is no signatures of witnesses.  All  these documents given by Subhash Kogekar (DW-1) implicitly show  that no any partnership deed came to be executed between respondent- plaintiff   and appellant-defendant or her husband. Thus, contention of  appellant-defendant that after death of her husband, respondent-plaintiff  had given offer to her to admit as a partner and to form a partnership  firm, is not acceptable at all. appellant-defendant failed to establish that  she along with respondent-plaintiff, is running partnership business on  the suit plot. On the other hand, contention of the respondent-plaintiff  that he permitted appellant-defendant to utilize suit plot for lunch and  dinning purpose of her employees, appears to be trustworthy one. Thus,  respondent-plaintiff  established  that  possession  of  the  appellant- defendant over the suit plot was permissive. Hence I answer point No.l  in the affirmative and point No.2 in the negative.”

11. The argument of  the  appellant  that  even though the  partnership was  un-

registered, the same ought to have been considered by the trial Court was rejected  

by the lower appellate Court by making the following observations:

“Appellant-defendant  herself  has  not  stepped  into  witness  box.  Appellant-defendant  has  examined Subhash Kogekar  (DW-1)  as  her  power of attorney holder.  Subhash Kogekar (DW-1) in his evidence  admitted that he himself or appellant-defendant have not executed any  registered document in respect of the suit plot. From the admission, it is  clear that no registered Partnership Deed came to be executed between  appellant-defendant and respondent-plaintiff. Learned Counsel for the  appellant-defendant submitted that Shashikant Purandare was a partner  of M/s. Active Engineers along with respondent-plaintiff, and they have  opened account in the name of M/s.  Active Engineers, which shows  that  respondent-plaintiff and  Shashikant  Purandare  were  partners  of  M/s.  Active Engineers.  Sanjay Salunkhe (DW-2) in his evidence on  oath stated that Account Opening Form of M/s. Active Engineers (Exh.  244)  bears  the  signature of  respondent-plaintiff and Shri Shashikant  Purandare.  However,  in  the  course  of  cross-examination  Sanjay  Salunkhe (DW-2)  stated  that  while  opening account,  photograph of  

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account holder is affixed on Account Opening Form. However, Account  Opening  Form  (Exh.  244)  shows  that  no  such  photograph  of  respondent-plaintiff is affixed on Account Opening Form. Moreover, it  has  come in the evidence of Sanjay Salunkhe (DW-2)  that  Cosmos  Branch-Khadki never demanded residential proof and PAN number of  respondent-plaintiff. In such circumstances, doubt creates about Form  (Exh. 244). Moreover, merely because Bank Account is opened in the  name of M/s. Active Engineers, itself is not sufficient to establish that  respondent-plaintiff  along  with  Shashikant  Purandare  entered  into  partnership and had applied for Opening of account of Partnership Firm.  Moreover,  Account  opening (Exh.  244)  does  not  bear  signature  of  appellant-defendant.  Moreover,  municipal  taxes,  receipts  and  notice  issued by PMC filed by appellant-defendant show that same are in the  name of M/s. Diamond Engineers and Fabrications. As per contention  of  appellant-defendant,  she  along  with  respondent-plaintiff  were  carrying partnership business in M/s. Active Engineers. Then how M/s.  Diamond Engineers and Fabrications are shown as possessor of the suit  plot. Moreover, it is settled principle of law that merely paying taxes  itself not confer any right of property.”

12.  The second appeal filed by the defendant-appellant was dismissed by  

the learned Single Judge of the Bombay High Court, who held that no question of  

law much less any substantial question of law arises for consideration.  The learned  

Single Judge relied upon the judgment of the Nagpur High Court in Jamal Usman  

Kachi v. Firm Umar Haji Karim Shop AIR 1943 Nagpur 175 and held that the  

appellant  cannot  rely upon the  unregistered  partnership deed  for  defending her  

cause in the suit.  He distinguished the judgment of the Calcutta High Court in Ajit  

Kumar  Maity  v.  Narendra  Nath  Jana  AIR  1955  Calcutta  224  by  making the  

following observations:

“As  noted  earlier,  in  the  case  before  the  Calcutta  High Court,  the  defendants therein were not attempting to enforce their own rights but  had set up a plea to defeat the plaintiffs claim. I am, therefore, of the  opinion that on the facts, the decision of the Calcutta High Court is not  applicable in the present case. Apart from that, perusal of Section 69  

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shows that bar is created under sub-sections (1) and (2) against the  plaintiff for enforcing a right arising from a contract either on behalf of  the firm against the third party or on behalf of any person suing as a  partner in a firm against the firm or any person alleged to have been a  partner in the firm unless the partnership is registered. The Nagpur High  Court in the case of Jamal Usman (supra) observed that a claim of set- off may be  a  partial  defence to  a  suit  but  a  claim arising out  of  a  contract  may also be set  up in defence to  negative the right of suit  altogether  and  it  is  that  defence  which  is  placed  under  the  same  disability as the right to bring a Suit at all insofar as unregistered firms  are concerned. In my opinion, sub-sections (1) and (2) of Section 69 are  required to be harmoniously construed with subsection (3) thereof. It  cannot be said that the disability is created under subsections (1) and  (2) of Section 69 only against the plaintiff from enforcing a right arising  from the contract and disability is not created against the defendant. I,  therefore, prefer to follow the view taken by Nagpur High Court in the  case of Jamal Usman (supra).”

13. Shri Pallav Shishodia, learned senior counsel for the appellant relied  

upon Clause 6 of partnership deed dated 23.11.1988 allegedly executed between  

the appellant and the respondent and argued that even though the same was not  

registered, the trial Court should have declared that the suit property was part of the  

assets of the partnership firm and the appellant was entitled to a declaration that she  

has the right to continue in possession of the suit property till the dissolution of the  

partnership firm. In support  of his argument, learned senior counsel referred to  

Section 69 of the Indian Partnership Act, 1932 and the judgment of this Court in  

Jagdish Chander Gupta v. Kajaria Traders (India) Ltd. 1964 (8) SCR 50 and of the  

Calcutta High Court in Ajit Kumar Maity’s case. Shri Shishodia submitted that the  

judgment of the Nagpur High Court in Jamal Usman Kachi v. Firm Umar Haji  

Karim Shop (supra) is distinguishable on facts and even otherwise the same does  

not lay down the correct law.  

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14. Shri Amol Chitale, learned counsel for the respondents supported the  

impugned judgment and those of the trial Court and the lower appellate Court and  

argued that the appellant is not entitled to any relief because she could not prove  

execution  of  partnership  deed  dated  23.11.1988  and  the  two  Courts  had  

concurrently found that she was unauthorisedly occupying the suit property. Shri  

Chitale further argued that the finding recorded by the trial Court and the lower  

appellate Court on various issues were pure finding of fact and the High Court  

rightly declined to interfere with the same.  

15. Before dealing with the rival contentions, we consider it necessary to  

observe that the appellant has not challenged the finding recorded by the trial Court  

and the lower appellate Court that the suit property was allotted to the respondent  

by MIDC on lease basis and the appellant had no privity of contract with MIDC.

16. We  shall  now  consider  the  question  whether  the  respondent  had  

executed  partnership deed dated  23.11.1988 with the appellant and she  was  in  

possession of the suit property as a partner.  

17. In his evidence, the respondent categorically stated that the appellant is  

neither his partner nor a tenant nor a licenser and that she was in illegal possession  

of  the  suit  property.   The  respondent  denied  the  suggestion  that  he  and  the  

appellant’s husband were partners of the firm M/s. Active Engineers and that she  

was  inducted  in  the  partnership  business  after  the  death  of  her  husband.  The  

respondent denied the execution of partnership deed dated 23.11.1988 and claimed  

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that the appellant had neither invested Rs.1,25,000 by way of capital nor spent  

Rs.3,00,000 for the construction of mezzanine floor and fixing of furniture.  The  

respondent also denied that from 1982-1985,  he was a partner of Shri Subhash  

Anant Kogekar in respect of the suit property and had done business with him and  

he  had  paid  installments  of  the  suit  property  to  MIDC.   He  also  denied  the  

suggestion that a joint bank account was opened in the name of Active Engineers or  

that he had given authority to Subhash Anant Kogekar to operate the account of the  

firm.

18. In his examination-in-chief,  which was  in the form of an affidavit,  

Subhash  Anant  Kogekar  stated  that  the  appellant  is  in  possession  of  the  suit  

property as partner of M/s. Active Engineers.  He denied having sought permission  

of the respondent for using the suit property for lunch and dinner of his employees  

and that he or his relatives started using the same for business purposes without the  

knowledge and consent  of  the  respondent.   Subhash Kogekar  claimed that  the  

respondent had business relation with him and did business in partnership from  

1982 in the name and style of M/s. Active Engineers and that at his asking, the  

respondent  entered  into partnership with his  brother-in-law Shri  Shashikant  M.  

Purandare w.e.f. 30.12.1985 for doing the business of sale and manufacturing of  

engineering and chemical items and further that after the death of Shri Shashikant  

M.  Purandare,  the  appellant  was  inducted  as  a  partner  in  the  firm and  fresh  

partnership deed was executed on 23.11.1988 for doing the same business. He then  

stated  that  the  respondent  had  not  paid  taxes  to  Pimpri Chinchwad  Municipal  

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Corporation and he had paid the dues as proprietor of   M/s. Diamond Engineers  

and Fabricators. According to Shri Subhash Anant Kogekar, the respondent got the  

electricity supply disconnected sometime in 1995-96 and since then the appellant is  

doing business in the suit property with his help and the help of his concern, viz.,  

M/s. Diamond Engineers and Fabricators. He also stated that the respondent had  

permitted  the  appellant  to  construct  industrial  shed  on  the  suit  plot  for  the  

partnership business.  In paragraphs 12,  14 to  16,  Shri Subhash Anant Kogekar  

made the following statements:

“12.   I say that,  upon formation of partnership firm, namely, Active  Engineers, the plaintiff allowed and permitted defendant to construct  the industrial shed on the suit plot to run partnership business.  This  defendant  who  invested  his  own  fund  by  way  of  capital  in  the  partnership firm. Out of these funds this defendant, with the help of her  brother, Mr. Kogekar, i.e. myself got industrial shed constructed arid  this industrial shed and the land thereunder belongs to the partnership  firm. However, in the record of M.I.D.C., the said suit plot was shown  and recorded in the name of plaintiff as a lessee. Therefore, in absence  of any lease deed or other document of transfer or assignment, executed  by plaintiff in favour of partnership firm, the said plot continued to be  shown in the name of plaintiff in MIDC and municipal corporation  record.

14. I  say  that,  after  construction of  factory shade,  this  defendant  continued  business  activity  on  payment  of  all  outgoings  of  factory  premises  out  of  income  arrived  from Active  Engineers.  As  owner  thereof the plaintiff did not object for discharge of this liability, to this  defendant in connection of suit property.

15. I say that, the plaintiff had approached Shri Subhash Kogekar,  Proprietor of M/s Diamond Engineers and Fabricators, that is myself,  who is having the firm in front of the suit property and requested me to  get all right, title and interest of plaintiff in the suit property and as the  partner of active Engineers, assigned in the name of Subhash Kogekar.  Shri  Subhash  Kogekar  i.e.  myself  had  paid  substantial  amounts  to  M.I.D.C, Pimpri Chinchwad Municipal Corporation etc.,  with respect  to the suit property and for and on behalf of the plaintiff as well as for  

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and  on  behalf  of  M/s  Active  Engineers  and  upon  negotiation  and  finalization the consideration. I, Shri Subhash Kogekar orally admitted  to acquire all rights and interests of the plaintiff in the suit property  from the plaintiff. I say that I as Shri Subhash Kogekar had paid the  consideration for the same to the plaintiff as against all rights, title and  interest  of the plaintiff in the said property together with share as  a  partner of a partnership firm of active engineers.

16. I say that in consideration thereof, the plaintiff has executed power  of attorney in my favour. However, the plaintiff even on accepting the  consideration,  avoided  to  execute  the  necessary  documentation  of  transfer/assignment of suit property, in favour of Shri Subhash Kogekar.  I say that the plaintiff, by entering the partnership with the defendant,  got factory premises constructed out of the funds of the defendant. The  plaintiff  has  received  practically  all  his  investment  made  by  him  regarding the suit property, and then he avoided to execute necessary  deeds or documents to transfer or assign his right, title and interest in  the  suit  property  in  favour  of  the  said  Shri  Subhash  Kogekar,  i.e.  myself. Now by taking advantage of inaction on the part of plaintiff in  this regard, the plaintiff is making allegations of trespasser against the  defendant. Thus the plaintiff deliberately and intentionally suppressed  all these material fact from the Hon. Court and thereby the plaintiff has  not come with clean hands before the Hon. Court in claiming the relief  against  this  defendant.  Hence,  suit  filed  by plaintiff is  liable  to  be  dismissed.”

(reproduced from the appeal paperbook)

19. In the cross-examination, which was conducted in four installments  

Subhash Anant Kogekar made the following admissions:

i. That he had taken Shade No. W-113 on lease from MIDC in his personal  

capacity and was  doing business  in the  name of M/s.  Diamond Engineers  and  

Fabricators.

ii. That  he  and  his  sister,  i.e.,  the  appellant  did  not  execute  any registered  

document about the suit property.

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iii. That he and his sister are using the suit property.

iv. That  the  suit  filed  by  the  appellant  against  the  respondent  was  

dismissed.

v. That neither the appellant nor he obtained permission from MIDC for  

making construction on the  suit  property/structural  changes  though  

such permission is mandatory.

vi. That  vide  letters  dated  6.11.1990,  7.11.1990  and  30.11.1990,  the  

respondent had demanded possession of the suit  property from the  

appellant.

vii. That there is no documentary evidence to show that he had asked the  

respondent to enter into partnership with Shri Shashikant M. Purandare  

or  that  after  the  demise  of  Shri  Shashikant  M.  Purandare,  the  

respondent had made an offer to the appellant to induct as partner in  

the business of the firm M/s. Active Engineers.

viii. That the partnership deeds have neither been signed by the witnesses  

nor the same are registered either under the Partnership Act or the  

Registration Act.

In  the  third  installment  of  the  cross-examination  (8.9.2010),  Subhash  Anant  

Kogekar made the following statements:

“I, Subhash Kogekar do only one business it is in the name Diamond  

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Fabrication India Private Limited. It is true to say that neither myself  nor Leela Purandare possess any registered document to show that Plot  no. W-97 was transferred in the name of Active Engineers. It is true to  say that I have sent document Exh.85 dated 24/07/1985 to handwriting  expert to verify whether or not it bears signature of the plaintiff. It is  true to say that I have not produced any documentary evidence to show  that I had submitted the document as per the reminder issued by PCMC  dated  13/07/1995.  It  is  true  to  say  that  I  have  not  submitted  any  document  to  PCMC  to  show  that  Diamond  Engineers  are  legal  occupiers of plot no. W-97. I have produced a letter showing that the  officers of PCMC had visited plot no. W-97. It is not true to say that  only-some  portion  of  plot  no.  W-97  is  in  possession  of  Diamond  Engineers. It is true to say that I have not issued any letter to PCMC  stating that the name of Diamond Engineers is wrongly recorded as  occupier of W-97. It is true to say that I have not issued any letter or  notice to PCMC through my Advocate. It is not true to say that the  contents  of  letter  issued  by me Subhash Kogekar  Exh.85/26  dated  16/08/1994 and Exh.85/30 dated 16/02/1998 are contradictory to each  other and these documents are false, fabricated and imaginary. It is not  true to say that Exh. 235 bears false seal of Diamond Engineers. It is  true  to  say  that  in  my written  statement  it  is  not  mentioned  that  Diamond Engineers is legal occupier of Plot no. W-97. I am not aware  about Exh. 55 hence there was no question of replying the same. (At  this stage learned counsel for the plaintiff open the Envelop of Exh. 55)  Now I am shown the letter issued by the plaintiff to Leela Purandare  dated 30/11/1990. I have not received the said letter. It is true to say  that  neither  myself  nor  plaintiff  and  defendant  sent  the  necessary  documents to MIDC for obtaining permission for Active Engineers. It  is true to say that the test report of MSEB i.e. Exh. 96 is received on  31/08/1985. It is not true to say that there was no electric supply from  MSEB to plot W-97 prior to 1986. It is not true to say that there was  no 'business of manufacturing goods on plot W-97 prior to 1986. It is  true to say that the electric supply to Plot no. W-97 is in the name of  plaintiff A.V. Govande. Now I am shown certified copy of Exh. 1 of  R.CS no. 101/1991 filed at Exh.57. It is true to say that the plaintiff  was not party in the said suit. It is true to say that when the plaintiff  made an application, he was made defendant in the said suit. It is true  to say that I am using plot no. W-97. It is true to say that myself and  defendant Leela Purandare are using plot no. W-97 without obtaining  any written permission of MIDC. It is not true to say that I am using  plot no. W-97 illegally and unauthorizedly. It is not true to say that I  am using plaintiffs property without any authorization illegally since  1988. It is not true to say that I am deposing false. Re-examination.”

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(reproduced from the appeal paperbook)

20. A careful analysis of the statements of the respondent, the power of  

attorney holder of the appellant and other witnesses examined by them shows that  

even though the appellant and the respondent had not entered into any agreement  

what to say of registered partnership agreement, the appellant and Subhash Anant  

Kogekar had taken possession of the suit property without obtaining permission  

from the  respondent  and raised  construction without obtaining permission from  

MIDC and without getting the plan sanctioned. This conclusion is fully supported  

by the statement of PW-2  Rajaram Tukaram Bhujbal,  who was  employed with  

MIDC. PW-2 categorically stated that MIDC does not have any partnership deed of  

the respondent and any other person on their record and that no letter had been  

received from the plaintiff or any other person seeking permission for construction.  

In cross-examination, PW-2 also stated that permission of MIDC is required for  

doing partnership business. PW-3 Vishvanath Sadhu Wakhare stated that as per the  

tax assessment record, M/s. Diamond Engineers and Fabricators are registered as  

possessors of the suit property, though there is no document showing allotment of  

the suit property in favour of M/s. Diamond Engineers and Fabricators and that he  

had not seen any partnership document between the appellant and the respondent.  

In cross-examination, PW-3 disclosed that tax for the suit property was paid by  

M/s. Diamond Engineers and Fabricators.

21. Since the appellant had pleaded that the respondent had inducted her  

as  partner  in  place  of  her  husband  and  executed  partnership  agreement  dated  

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23.11.1988 and she was in possession of the suit property as partner of the firm  

M/s. Active Engineers, the onus was upon her to prove all these facts.  Both, the  

trial Court and the lower appellate Court concurrently held that the respondent had  

not entered into any partnership with the appellant and that she had unauthorisedly  

occupied the suit property and made construction for doing business.   Both the  

Courts further held that the appellant could not prove the opening of joint account  

by respondent and her husband and that she was in possession of the suit property  

as partner of M/s. Active Engineers.  These findings are pure findings of fact and  

are  amply supported  by this  Court’s  analysis  of  the evidence  produced  by the  

parties.  Therefore, we do not find any valid ground to interfere with the impugned  

judgment.  In view of the above conclusion, we do not consider it necessary to  

decide  the  question  whether  the  appellant  could  defend  the  suit  filed  by  the  

respondent on the strength of the unregistered partnership deed dated 23.11.1988  

allegedly executed between her and the respondent.  

22. In  the  result,  the  appeals  are  dismissed  with  cost  quantified  at  

Rs.50,000.  The appellant  shall  pay the  cost  to  the  legal  representatives  of  the  

respondent within two months and hand over vacant possession of the suit property  

to the legal representatives on or before 31.3.2014.  This would be subject to her  

filing an undertaking before this Court within a period of four weeks from today.  

During the intervening period, the appellant shall not induct any person in the suit  

property in any capacity whatsoever or alienate the same to any other person.

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     ......………………………..….J.        [G.S. SINGHVI]

New Delhi,                 ...….……..…..………………..J. November 19, 2013.       [V. GOPALA GOWDA]   

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