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TMI Blog2012 (12) TMI 1243X X X X Extracts X X X X X X X X Extracts X X X X ..... from the suit lands from 12.05.2009 till the delivery of possession of the plaintiffs share and directing the payment of half of the income so ascertained to the plaintiff; and to direct the defendants to pay to the plaintiff the costs of the suit. 2. The case of the first respondent is that the first respondent and the appellant were close friends. As early as 1991, they had mutually agreed to do granite quarry business jointly. With this view, the first respondent looked for lands with granite deposits, the appellant, having knowledge in the procedures to get the mining lease from the Government, suggested that the lands should be purchased in the name of one person only. Accordingly, as per the mutual understanding, the suit lands were purchased in the name of the appellant. According to the plaintiff/first respondent, the sale consideration was paid in equal share by the appellant and the first respondent. The appellant and the respondents entered into a partnership agreement on 03.07.1997, wherein, according to the first respondent, it was admitted by the appellant that the suit lands were purchased jointly and that they would do business in granite mining in the suit lands j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the delay in getting the licence as early as 05.11.2001, the first respondent executed a cancellation deed on partnership business, received a sum of Rs. 1,50,000/- and retired from the partnership. Thus, the first respondent had no interest or title to the suit properties. consequently, the first respondent is not entitled to any relief over the suit property. 5. The trial Court framed the following issues for consideration: (i) Whether the suit property is the self-acquired property of the appellant herein? (ii) Whether the property was purchased in the name of the appellant herein for the purpose of getting quarry licence from the Government? (iii) Whether there was partnership agreement between the first respondent and the appellant herein entered into on 03.07.1997? (iv) Whether the plaintiff/first respondent herein is entitled to seek partition and consequently permanent injunction? 6. In support of his contention, the first respondent let in evidence as P.W. 1 and marked Exs. A1 and A2, the sale deeds relating to the suit property and Ex. A3, the unregistered partnership deed between the first respondent and the appellant, Ex. A6, the licence granted to quarry the granite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar as the first issue as regards the purchase of property in the name of the appellant herein for the purpose of carrying on business on partnership is concerned, the Court below held that Ex. A3 evidenced the forming of partnership. Based on the decision to carry on partnership business, the property was purchased in the name of the appellant herein and even though the first respondent/plaintiff's name was not entered into in the sale document, yet, the first respondent/plaintiff had contributed towards the purchase of the property. Consequently, the suit properties were not the exclusive properties of the appellant herein. In the light of the findings thus rendered, the Court below granted the relief of partition. Aggrieved by this, the present appeal has been filed. 11. As far as the existence of partnership firm is concerned, learned counsel appearing for the plaintiff/first respondent pointed out to the admission of the appellant in the written statement that there was an agreement between the parties to carry on business in quarrying. Given the fact that the said averment in the written statement was also reiterated by the appellant herein in his evidence, we hold that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing it among the plaintiff/first respondent herein and the first defendant/appellant herein as partnership properties. 13. Learned counsel appearing for the appellant further pointed out that the prayer in the suit claiming partition itself is misconceived; considering the fact that if there be a partnership, it could only go for a dissolution as per Section 69 of the Partnership Act. In the absence of any registered deed evidencing the existence of a partnership firm, for the purpose of dissolution under Section 69 of the Partnership Act, the decree granted in favour of the plaintiff could not be sustained. 14. Learned counsel appearing for the plaintiff/first respondent, however, pointed out to Section 69(3) of the Partnership Act and submitted that even in the absence of a registered deed, the suit could be maintained. Taking cue from this, the first defendant/appellant herein filed a petition before this Court seeking leave of this Court to withdraw the suit filed by him in O.S. No. 64 of 2010 on the file of the Principal District Judge, Krishnagiri, with liberty to file a fresh suit for the same cause of action. 15. The first defendant/appellant herein states that even though ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (K.S. Bhoopathy and others Vs. Kokila and others), the Apex Court administered a note of caution and pointed out that it is the duty of the Court to satisfy itself that proper grounds existed for granting such permission for the withdrawal of the suit with leave to file a fresh suit and in such case, the statutory mandate is not applied by merely stating that the grant of permission would not prejudice the defendants. Thus, the law declared by this Court as well as by the Apex Court is that, for the mere asking for a prayer for withdrawal of the suit under Order 23, Rule 1, C.P.C., the Appellate Court should not grant the relief. 18. As already pointed out, the prayer in the petition is that the withdrawal of the suit would give the respondent herein opportunity to put forward his claim on a better legal footing which would avoid multiplicity of proceedings. 19. We do not think, this would be a sufficient ground for this Court to grant the relief of dissolution of the partnership firm under Section 69(3) of the Partnership Act. The entire case of the first respondent/ plaintiff herein is that the property in question was purchased for the purpose of carrying on the business of qua ..... X X X X Extracts X X X X X X X X Extracts X X X X
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