Mahendra Bhushan, J. - (1.) This is a defendant's Special Appeal under Section 18 of the Rajasthan High Court Ordinance against the judgment of the learned single Judge dated December 9, 1969, and arises out of a suit for injunction.
(2.) The Jaipur Ice and Oil Mills Co., (hereinafter referred to as the Company) was ordinarily composed of six partners, viz., Kishanlal, Mahadeo Prasad, Satya Narayan, Kalicharan, Bishambhar Dass and Jeewan Prasad, and a partnership deed was executed on Feb. 28, 1947. It started manufacturing Ice, Oil and Soap in Bani Park, Jaipur. Two of its partners, Bishambar Dass and Jiwan Prasad left the firm on April 27, 1949, and the rest of the four partners, above named, continued the partnership business up to March 31, 1958, on which date the firm was dissolved under a dissolution deed (Ex. 2). The firm had acquired a plot of land No. 1-VII measuring 260' x 325' at Bani Park. Jaipur, on a part of which the factory had been constructed, and a residential house on a piece of this land measuring 325' x 88' with its own money. At the time of dissolution of the firm under the dispolution deed (Ex. 2) dated March 31. 1958. defendant No. 1 Kalicharan retired from the partnership and was paid Rupees 26,454.00 as a share of the capital invested by him, and over and above that he was also paid Rs. 11,001/- as his share of the price of the goodwill of the firm. At the time of dissolution of the firm, it was agreed between Kalicharan defendant (1), the retired partner, on the one hand, and Kishanlal, Mahadeo Prasad and Satya Narain, on the other, vide Clause 12 of the dissolution deed (Ex. 2), that the aforesaid land measuring 325' x 83' and the house standing thereon would be the exclusive property of Kalicharan defendant (1) with full rights of sale and mortgage and that Kalicharan would get a boundary wall constructed or have a wire fencing on this piece of land, open a separate door towards the road side, but would not have any entrance or exit towards the factory compound. It was also agreed (vide Clause 13 of Ex. 2) that Kalicharan would not carry on the same kind of business, i.e., Ice Factory, on the land in his possession. Kalicharan sold a piece of land measuring 88' x 162' out of 325' x 88', which was exclusively left to him under Ex. 2, to his father Ram Niranjan Lal for a consideration of Rs. 3168/- by a registered sale deed (Ex. A-18) dated January 12, 1959. Thereafter, by deed dated February 11, 1959 (Ex. P-23), Ramniranjan Lal entered into partnership with Smt. Genia Bai wife of Kalicharan and Hukum Chand son of Kalicharan for carrying on business of ice and also admitted Rajgopal Kanodia minor son of Kalicharan to the benefits of partnership. They also applied for a licence to put up an Ice Factory on the aforesaid land measuring 88' x 162' in their possession and started making further preparations in the direction of establishing an ice factory.
(3.) The Company filed the suit through its partner Mahadeo Prasad on November 29, 1961 in the Court of Munsiff (East) Jaipur City against Kalicharan, Hukmichand, Ramniranjan Lal, Genia Bai and Rajgopal, minor son of Kalicharan for issuing a permanent injunction restraining the defendants from putting up an ice factory on the disputed land measuring 88' x 162' and shown in green colour in the plan (Ex. 3) and prohibiting them to do any business of manufacturing of ice.;