' SHEZADA MAZHAR, J.---The captioned appeal is filed against the judgment and decree dated 29- 09-1990 rendered by the learned Civil Judge 1st Class, Lahore whereby the suit filed by appellants/plaintiffs for possession of 50 godowns situated at Dacca Road, Saddar Bazar, Lahore Cantt., Lahore has been dismissed.
2. Necessary facts giving rise to this appeal are that the appellants are the legal heirs of late Mian Rafi-ud-Din ("MRD") son of Mian Chiragh Din, who filed a suit for possession of the 50 godowns on 21-2-1983 situated at Dacca Road, Saddar Bazar, Lahore Cantt., Lahore. As per the contents of the plaint the property was owned by MRD, the predecessor-in-interest of the appellants, which he obtained on lease through a registered lease deed executed in favour of MRD by the Military Estates Officer, Lahore Cantt., Lahore on 8-1-1949 a period of thirty (30) years. It was mentioned in the plaint that the said lease deed was further extended for another period of thirty (30) years on 15-5-1977 in favour of MRD who is stated to have died on 22-5-1982.
3. The suit was instituted against two families, one consisting of Mian Abdul Aziz son of Mian Chiragh Din and his sons (defendants Nos. 1 to 5) and the other family comprising defendants Nos.
6 to 11 who are the legal heirs of Muhammad Sharif son of Mian Chiragh Din.
4. It is mentioned in the suit that four (4) godowns were in use of the defendants as their residence, whereas thirty nine (39) godowns were rented out to the Food Department by MRD. MRD later on got vacated thirty-seven (37) godowns through filing of ejectment petition in the court of Rent Controller, Lahore. Cantt., Lahore in the year 1969. Two (02) godowns were still in possession of the Rationing Controller, who is making payment of the rent to the appellants/plaintiffs.
5. The thirty-seven (37) godowns which were got vacated from the Food Department were again rented out by MRD on 1-11-1973 to Punjab Agriculture Supplies Corporation, Lahore which vacated the same after one (01) month and handed over the possession to MRD. In the year 1974 the appellants/plaintiffs were dispossessed of all the thirty seven (37) godowns by the respondents/defendants allegedly through use of force. MRD filed complaint against the respondents/ defendants under section 147 of the Criminal Procedure Code, 1898 which was accepted by the concerned Magistrate vide order dated 6-12-1973. However, in criminal revision the said order dated 6-12-1973 was set aside and case was remanded to the learned Magistrate vide order dated 17-3-1982. It is also mentioned in the plaint that the respondents/defendants challenged the said order of remand before the Hon'ble Supreme Court and the same is pending there. It is claimed in the plaint that at the time of institution of the suit all the fifty (50) godowns were in possession of the defendants.
6. Both the defendant families contested the suit by filing separate written statements and took the plea that the 50 godowns situated at Dacca Road, Saddar Bazar, Lahore Cantt., Lahore is the property of the partnership concern, i.e. Messrs Imperial Roller Flour Mills ("IRFM"). The IRFM was a partnership constituted by six (06) brothers including the predecessor-in-interest of the appellants on 15-12-1949 through unregistered partnership deed. In fact it was also mentioned in the written statement filed by defendants Nos. 1 to 5 that the partnership was operative since 1941 on the basis of oral partnership.
7. The plaintiffs claimed that the property forming subject-matter of their suit is the exclusive property of their predecessor-in-interest i.e. MRD, whereas the defendants claim that the property is vested in the partnership firm, i.e. IRFM and is not in the exclusive ownership of MRD.
8. Out of the divergent pleadings of the parties the learned trial Court on 9-1-1985 framed the following issues:--
(1) Whether the suit is not within time? OPD
(2) Whether the plaintiffs have no locus-standi to institute the present suit? OPD
(3) Whether the present suit is liable to be stamped in view of preliminary objection No. 3 of the written statement filed by defendant No. 1 to 5? OPD
(4) Whether the present suit is not maintainable in view of preliminary objection No. 3 of the written statement filed by defendant No. 1 to 5? OPD.
(5) Whether the suit property is the ownership and assets of the partnership firm namely M/s Imperial Roller Flour Mills Ltd, if so its effect? OPD.
(6) Whether late Mian Rafi Din, predecessor in interest of the plaintiffs had taken the lease of land underneath the suit property in his exclusive name or as partner of the partnership firm namely M/s Imperial Roller Flour Mills Ltd? OPD
(7) Whether the suit is not maintainable in its present form? OPD
(8) Whether the suit is bad for non joinder of the necessary parties? OPD
(9) Whether the plaintiffs are entitled to a decree as prayed for? OPP
(10) Relief. "
9. In order to prove the respective claims by the parties, appellants/plaintiffs produced five (05) witnesses and also submitted documentary evidence in the shape of Exh. P-1 to P-15, whereas the defendants produced seven (07) witnesses and submitted documents Exh. D-1 to D-21. Two court witnesses were also recorded on behalf of the defendants and Tahir Rafi appellant No. 4 also submitted evidence in rebuttal.
10. While dealing with issues Nos. 5 and 6, which involve the main controversy, the trial Court after reviewing the evidence held that the property was an asset of the partnership firm/IRFM and that the lease of the land underneath was taken by MRD as a partner of the said firm and dismissed the suit of the appellants/plaintiffs vide judgment and decree dated 29-9-1990. The present appeal (RFA No. 171/1990) is filed against the said judgment and decree.
11. The learned counsel for the appellants submits that oral as well as documentary evidence placed on record proves that the property is in the exclusive ownership of the MRD. In this regard he has relied upon the Letter dated 24-10-1953 (Exh. P-1) written by Executive Officer Lahore Cantt., to Income Tax Officer, Lahore wherein he specifically mentioned that the property is owned by .MRD and not by IRFM. Learned counsel also relied upon Registered Lease deed dated 8-1-1946 (Exh. P-3) executed in favour of MRD and its Renewal dated 15-3-1977 (Exh. P-4) and submits that no objection whatsoever was raised by the respondents/defendants even at the time of renewal although they were admittedly in possession of the property in dispute since 1974. The learned counsel further relied upon the Notice of revision of assessment dated 4-8-1949 (Exh. P.9) wherein Executive Officer Lahore Cantt., has addressed MRD as owner of the building. He also relied upon the property tax assessm ent register for the year 1948 (Exh. P-11 & 12) wherein for the suit property the name of MRD is mentioned in the Colum of ownership (Colum No.5). The learned counsel for the appellants/plaintiffs further submits that the respondents/ defendants have failed to produce any documentary evidence to rebut the ownership claim of the appellants/plaintiffs. The learned counsel also submits that oral evidence could not be given preference over documentary evidence and in this regard relied, upon 2001 CLC 1332, 1989 CLC 2070, 1989 MLD 4633 and PLD 1986 SC 519.
12. Learned counsel for the appellants/plaintiffs further submits that property belonging to the partners, or to one of them, does not become the property of the firm, even if it is used by the firm. It must however be remembered that if the property of a partner is treated as partnership property there must be evidence that such property was brought in the stocks of the firm. In the present case property in dispute cannot be treated to be in the ownership of IRFM just because the same may have come into partnership. In this regard reliance is placed upon judgment. Reported PLD 1968 Kar. 657 and 2002 YLR 2723.
13. Learned counsel for the appellant/plaintiff next submitted that it is settled principle of law that if a document governing rights and obligations of parties thereto stands registered then the same can only be cancelled by declaration of a court of law. In this regard he has referred PLD 1998 Kar.
348.
14. Learned counsel further submits that the respondents/defendants have tried in vain to make out a case resting upon the correspondence made by MRD with the authorities by using the address of IRFM. Learned counsel submits that since MRD was the real brother of one defendant and of the predecessor of other defendants, he was using the office of IRFM for correspondence. It was plausible that his letters were written on the letter head and the address of IRFM, and sometimes on his directions and on his behalf employees of IRFM corresponded with some departments in relation to the suit property. In any case, title of a property cannot vest in a person whose address is used for postal correspondence regarding such property. Learned counsel further submits that the defendants did try in the year 1948-1949 to obtain the assessment of the property in dispute in the name of IRFM in Income Tax Department. However, on information provided by predecessor of appellants/ plaintiffs any cloud on the title was dispelled by the Income Tax Department. This was done after Income Tax department obtained confirmation from the MEO's office (Exh. P/1) that the property is on lease in the name of MRD. Regarding the assessm ent orders produced by the respondents/defendants in support of their contention that the property in dispute is the property of the partnership concern, learned counsel for the appellants/plaintiffs submits that the said assessment orders are not verified by the Income Tax Department. It further submits that pursuant to order of the learned trial Court dated 9-7-1987, certified copies of the assessm ent orders were applied by the appellants/plaintiffs which were never supplied to the appellants. It also submits that all the purported Income Tax Assessment orders and record was obtained by respondents/defendants before the order dated 9-7-1987 of the learned Civil Court, therefore these are not reliable. Learned counsel has prayed that the judgment and decree of the learned Civil Court dated 29-9-1990 be set aside and the suit of the appellants/plaintiffs be decreed with costs.
15. On the other hand learned counsel for the respondents/defendants has submitted that the partnership concern was in operation orally since 1941 although a written partnership deed was executed on 15-12-1949 and MRD obtained the suit property on behalf of the partnership concern. It was submitted by the learned counsel for the respondents/defendants that all the six (06) brothers were partners in the firm IRFM. In support of his contention the learned counsel for the respondents/ defendants has relied upon the assessment order for the year 1948-49 (Exh. D3/1 to 5), wherein all the six (06) brothers are shown as partners of IRFM. Learned counsel for the respondents/defendants then referred to the assessment order for the year 1949-50 (Exh. D3/1 wherein it is mentioned that the firm has spent an amount of Rs.150,000 on the construction of the building/godowns) and submits that this proves that godowns and servant quarters were constructed from the funds of the partnership concern and was therefore property of the partnership concern.
16. The learned counsel for the respondents/defendants further relies upon the partnership deed dated 15-12-1949 (Exh. D 1/1 to 5) wherein it is mentioned that the partnership firm is working since 1941, and submits that this document further confirms the existence of the partnership business since 1941. It is further submitted on behalf of the learned counsel for the respondents/defendants that although the partnership was reduced into writing on 15-12-1949 but the whole correspondence addressed to the government agencies/authorities was made by MRD on behalf of IRFM. Even the government agencies addressed the correspondence either to IRFM or MRD of IRFM since 1945. In this regard learned counsel for the respondents/defendants has referred to Exh.
DW 5/1 which is an application dated 16-2-1945 for the grant of lease of land for godowns and servant quarters, signed by MRD on behalf of IRFM. Learned counsel also referred to Exh.DW 1/2 which is a letter dated 10-9-1945 of IRFM to MEO whereby IRFM informed the MEO about the decision of Punjab Government to provide assistance for the construction of godowns. Learned counsel also referred to Exh.DW 5/3 which is a letter dated 21-9-1945 whereby MRD again applied for the lease of land on behalf of IRFM and stated that putting of site for public auction may not serve the object and purpose of the Storage Department. Learned counsel also referred to Exh. DW 5/4 which is a letter from MEO, whereby he forwarded the application of MRD on behalf of IRFM, to Collector, Lahore informing him that the application has been approved by the Officer Commanding Station, Lahore Cantonment for his concurrence. Learned counsel further referred Exh. DW5/7 dated 12-10- 1946 which is a letter of IRFM whereby extension in construction period was sought from MEO, Lahore. Learned counsel then referred to Exh. DW5/11 Addressed to MEO, Lahore whereby Regional Food Commissioner recommended grant' of extension to IRFM. Learned counsel for the respondents/defendants then referred Exh. DW5/9 dated 21-10-1946 whereby IRFM sought adjacent land on rent for storage of building materials etc. And Exh.DW5/10 whereby MEO sought sketch for temporary occupation of land. Also in the referred letter dated 25-4-1952 (Exh. D 12/ 1 to 5)
Executive Officer, Lahore Cantonment addressed to MRD of IRFM whereby MRD was asked to furnish the revised completion plan. Learned counsel for the respondents/defendants then referred to Exh.
D 13/1 to 5 dated 27-10-1950, Exh. D 14/ 1 to 5 dated 4-10-1950, Exh. D 15/1 to 5 dated 10-12-1950, Exh.
D-16/ 1 to 5 dated 16-12-1950, Exh. D17/ 1 to 5 dated 20-9-1950, Exh.D-18/ 1 to 5 dated 9-6-1950, Exh. D 19/1 to 5. Dated 8-5-1950 to show that all the letters were addressed to MRD of IRFM and submits that MRD was partner of the IRFM and that the said property was obtained for the firm and the godowns and servants quarters were constructed with funds of the firm. Learned counsel for the respondents/defendants also referred to Exh. D 20/1 to 5, which is a copy of the statement of MRD in the criminal complaint, wherein MRD has categorically admitted that before 1952 all brothers were doing business in partnership.
17. Learned counsel for the respondents/defendants submitted that all the applications and written requests in relation to the suit property were made by MRD for and on behalf of IRFM. The MEO's office or any other department also addressed the correspondence as well as sanction letters to MRD of IRFM. Learned counsel further submits that it was not on a solitary occasion when the name of the firm was used by MRD as partner thereof. Legally a partner is the agent of the firm for the purposes of the business of the firm. Section 18 of the Partnership Act 1932 is fully applicable to the case in hand. The learned counsel further submits that all the six (06) brothers referred the dispute regarding the partnership concern including its properties to arbitration through agreement dated 29-12-1968 Exh. DW 2/1 wherein the suit property is mentioned as the property of the partnership firm. Learned counsel for the respondents/ defendants submits that although the name of MRD is written on the lease deed but it is proved through documentary evidence that the said lease was taken by MRD on behalf of the firm as he was admittedly a partner in the firm.
18. In support of his contentions, learned counsel for the respondents/ defendants had relied upon PLD 1966 (WP) Karachi 52, AIR 1952 Punjab 284 and PLD 1973 Lah.
356.
19. The learned counsel for the respondents/defendants then submitted that the appellants/plaintiffs have taken contradictory stands. Submits that in the written statement filed by the present appellants in the suit for dissolution of partnership filed by the respondents, on one hand submit that the partnership is fake and in the same breath state that partnership was dissolved in the year 1952. This is sufficient to prove that the claim of the appellants/plaintiffs is false and frivolous. Another objection raised by the appellants/ plaintiffs is that due to the death of one partner, the partnership stood dissolved. In this regard learned counsel for the respondents/defendants submits that superior courts have time and again held that where the partners continued their partnership with the legal representatives of a deceased partner it amounted to an implied contract excluding dissolution of partnership by death of a partner. This implied contract may be inferred from the circumstances of the case and in this regard referred to PLD 1957 (WP) Karachi 557, AIR 1935 Lah 350 and AIR 1959 Rajasthan 140.
20. The learned counsel for the respondents/defendants then submitted that appellants/plaintiffs have relied upon the written statement filed by one of the defendants in a previously instituted suit for dissolution of partnership and rendition of accounts. However it is an admitted fact that the said defendants did not appear in the witness box to prove their contentions. It is settled law that pleading is not evidence and if defendant does not appear in the witness box to support his written statement, then it has no evidentiary value. Reliance is placed upon the judgment reported as PLD 1972 SC 25 and 2007 YLR 2689. The learned counsel for the respondents/defendants then referred to the objection/argument of the learned counsel for the appellants'/plaintiffs' counsel wherein he put much emphasis on the ejectment petition filed by MRD for ejectment of the Food Department to prove the ownership of MRD over the disputed property. In this regard learned counsel submitted that in partnership every partner is co-owner of the partnership property. Further under rent laws one co-owner can file petition for ejectment and in this regard referred the judgment reported as PLD 1973 SC 214. The learned counsel for the respondents/defendants submits that in view of the submissions above, the present appeal is liable to be dismissed.
21. We have considered the submissions made before us by learned counsel for the parties and perused the record.
22. Issues Nos.5 and 6. Which involve the main controversy and are interconnected, were taken up together by the trial Court and relying upon the correspondence, exchanged between the MRD and the Government of India in the name of the IRFM, held that the suit property was asset of the partnership firm.
23. The learned counsel for the appellants/plaintiffs have not denied the correspondence exchanged between the MRD and the Government of India/MEO on the letter head of the IRFM but submitted that same does not create ownership of the IRFM over the disputed property. The learned counsel submits that in absence of any title document in the name of the partnership concern the property cannot be considered as the property of the partnership firm. Further, the appellants/plaintiffs case is that MRD came into the partnership in the year 1949 and before that he had nothing to do with the partnership firm. Further, the appellants/plaintiffs have not denied the signature of MRD as Exh. DW5/1, application on behalf of the partnership firm IRFM for grant of lease of land, but have explained that the said application relates to some other piece of land and not the suit-land. In support of his contention, learned counsel for the appellants/plaintiffs relied upon Exh. DW 5/1 wherein it is clearly mentioned that the application dated 16-2-1945 was rejected on 7- 5-1945. The perusal of the Exh. DW 5/1 reveals that the same is dated 16-2-1945 and is signed by MRD on behalf of the IRFM. Further, MRD also wrote letter on behalf of the firm on 21-9-1945 Exh. DW- 5/3 wherein he informed MEG that "if the site is put for public auction, the object and the purpose of the Storage Department may not be served". Exh. DW5/4 is letter dated 3-101945 which is written by MEG to the Collector of Lahore wherein MEO sought latter's concurrence on the lease deed. In this letter MEO clearly stated that "application in. Schedule V, C.L.A. Rules 1937 submitted by Mr. Raffi- ud-Din of the Imperial Roller Flour Mills, Sadar Bazar, Lahore Cantonment for the grant of a lease of 1.38 acres of land situated in Survey No. 41 Lahore Cantonment for the purpose of building godowns for storing food grains in accordance with the design approved by Government". When the Exh. DW 5/4 is read with lease deed Exh. P/3, one thing become clear that the letter dated 3-10-1945 and the lease deed relate to one and the same property that is, the disputed suit property. Another document i.e. Exh. DW 5/5 dated 3-10-1945 wherein MRD is referred to with reference to IRFM. These documents establish that MRD had a connection with the IRFM. There can be no other connection than of a partner as all the correspondence referred above addresses MRD either as proprietor of IRFM or as MRD of IRFM. In view of the law laid down in Sayed Hassanally Shah v. Messrs Engineering & Co. Hyderabad and others (PLD 1966 (WP) Karachi 521 the Division Bench of Sindh High Court whilst interpreting the words "of Engineering and Co" has held that the word "of" is used as indicating origin. In the circumstances of this case which can be taken into consideration, (p.239 Partnership Act by Om Parkash Aggarwala 1959 Ed.) we would hold that Raza Hussain entered into the agreement with the defendants on behalf of the firm. Further, when above mentioned correspondence is read with Exhs. D 3/1 to 5 and D4/1 to 5, the income tax assessment orders of the IRFM for the year 1948-49 and 1949-50, are consistent with the plea that MRD was partner in the firm namely IRFM if not from the year 1941 but certainly when the IRFM applied for the lease of the land i.e. In the year 1945.
24. The appellants/plaintiffs have failed to place on record any evidence with regard to the business of MRD before 1949 and any source of his income with which he (MRD) managed the payment of the lease money as well as the construction cost of the suit property. The appellants/plaintiffs did not place on record any personal or separate income tax assessment order or any other document to establish the independent business of MRD before 1949. On the other hand the respondents/ defendants have placed on record letter dated 11-9-1945 (Exh. DW- 5/2) whereby IRFM forwarded the letter of the Government of Punjab to MEO the decision of the Government of Punjab to "offer assistance for the construction". This assistance also finds mention in a letter of MRD of IRFM dated 21-9-1945 (Exh. DW 5/3). The learned counsel for the respondents/defendants also placed on record the assessment orders of the IRFM wherein the disputed property has been assessed to tax as property of the partnership firm. Apart from the foregoing material, MRD admitted in his cross-examination during the proceedings of his Criminal complaint against the respondents/defendants in the year 1971 (Exh. D 20/1 to 5) wherein he states that{{URDU TEXT}} ' The Exh. DW 5/2 as well as Exh. DW 5/3 read with the income tax assessment orders (Exh. D-3/1 to 5 and Exh.D-4/ 1 to 5) show that lease money as well as the construction cost was met by the firm.
Section 14 of the Partnership Act 1932, provides that:-- "14. The Property of the firm. Subject to contract between the partners, the property of the firm includes all property and rights and interest in property originally brought into the stock of the firm, or acquired, by purchase or otherwise, by or for the purpose and in the course of the business of the firm, and includes also the goodwill of the business.
' Unless the contrary intention appears, property and rights and interests in property, acquired with money belonging to the firm are deemed to have been acquired for the firm."
' A plain reading of the above said provision makes it clear that a property acquired with the money of the firm becomes the property of the firm. This principle applies even if the title documents of such property are in the name of one of the partners. In this regard reliance is placed on Debi Parshad v. Jai Ram Doss and others (AIR 1952 Pun. 284) wherein it was held that Land bought in the name of one partner, and paid for by the firm put of the profit a partnership business, is partnership property unless a contrary intention appears. It is further mentioned in the said judgment that If one partner obtains in his name, either during the partnership or before its assets have been sold, a renewal ofalectsej_9the partnership property, he will not be allowed to treat the renewed lease as his own and as one in which his co-partners have no interest,
25. Also in the case of Commissioner of Income Tax, Lahore Zone (West Pakistan), Lahore v. Messrs Jamal ICE Factory, Multan (PLD 1973 Lah 356) this Court has held that A property owned or acquired by the partners and contributed or transferred by them to the partnership may become the property of the firm. It is not necessary or a partner to brine his property into partnership or to transfer it, by a registered instrument. In fact, an answer to the question whether or not a property has become partnership property, depends upon the intention of the parties as manifested by an express or implied agreement such as deed of partnership, and by the act 'and conduct of the partners.
26. Appellants raised the objection that suit property is property of the partnership firm because the suit property is not mentioned in the partnership deed dated 15-12-1949 (Exh. D-1). However, appellants themselves have admitted in the written statement filed in the suit for dissolution of firm that number of properties are in partnership business and all the said properties are not mentioned in the partnership firm. In this view of the matter the objection is of no consequence.
27. Another aspect of the matter is that partnership firm itself is not a legal entity. It can act only through its partners. Reference is made to Motal Bai v. Abdul Aziz and others (PLD 1968 Karachi 635) wherein it is mentioned that though a firm may possess some attributes of a personality it is only a collective name of its members, and is not a legal person or entity, distinct and separate from the partners. Therefore in any case .The suit property had to be leased in the name of either one or all of the partners. Therefore, the lease of the suit property in the name of MRD is plausible in his status as agent of the firm.
28. Learned counsel for both the parties have not addressed any argument with regard to the possession part or whole of the suit property before 1974. In the plaint appellants/plaintiffs admit that "the property in dispute is partly in possession of the defendants and their tenants" and claimed mesne profits from 1-1-1974. The appellants/plaintiffs thereby claim that they were in possession of the whole of, the suit property before 1974. On the other hand, respondents/defendants Nos.1 to 5 claim in their written statement that the suit property is in their possession personally or through their tenants. Whereas respondents/ defendants 6 to 10 submit that they are in possession being partners of the firm. However, MRD in his cross examination in the criminal complaint filed under section 147, Cr.P.C. (Exh.D-20/1 to 5) himself admitted the following:- ' Appellants/plaintiffs have not placed any document which show rental income of MRD during the period 1962 to 1974, during which period appellants/plaintiffs themselves admit the possession of respondents-defendants but as tenant of MRD; whereas respondents-defendants claim that they were in possession of the property being partners of the firm. As per the contention of the appellants/plaintiffs it reveals that before 1974, when the respondents/defendants allegedly took over possession of the whole suit property by force, out of 50 godowns, 39/37 godowns were in possession of the appellants-plaintiffs whereas 13/11 were admittedly in the possession of the respondents-defendants. In absence of any document with regard to the claimed tenancy of the respondents or proof of rental income of MRD during the period prior to 1974 it is not possible to hold that the admitted possession of the respondents-defendants over the suit property was as tenant and not as joint owner of the property.
29. From the above discussion we have come to the irresistible conclusion that the suit filed by the appellants/plaintiffs merits dismissal as rightly held by the learned trial Court in the impugned judgment and decree dated 29-9-1990. As there is no substance in this appeal it is consequently dismissed with no order as to costs.