HON’BLE SRI JUSTICE G. BHAVANI PRASAD C.C.C.A. No. 106 of 2004, Tr. C.C.C.A. No.173 of 2005, Tr. C.C.C.A. No.58 of 2005 and C.M.P. No.9780 of 2004 in C.C.C.A. No.106 of 2004 Date: 23-10-2009 Between: Syed Shafiuddin .. Appellant And Abdul Gafoor Khan and another .. Respondents HON’BLE SRI JUSTICE G. BHAVANI PRASAD C.C.C.A. No. 106 of 2004, Tr. C.C.C.A. No.173 of 2005, Tr. C.C.C.A. No.58 of 2005 and C.M.P. No.9780 of 2004 in C.C.C.A. No.106 of 2004 COMMON JUDGMENT: C.C.C.A. No.106 of 2004 and Tr. C.C.C.A. No.173 of 2005 arose out of the common judgment of the V Senior Civil Judge, City Civil Court, Hyderabad, dated 03-03-2004 and the consequential dismissal of O.S. No.1464 of 1995 and decree of O.S. No.306 of 1996, while Tr. C.C.C.A. No.58 of 2005 is against the consequential dismissal of E.A. No.149 of 2001 in E.P. No.35 of 2001. C.M.P. No.9780 of 2004 in C.C.C.A. No.106 of 2004 is for appointment of an advocate commissioner to ascertain the exact extent of the subject property with the assistance of a Government surveyor. The appellant filed O.S. No.1464 of 1995 against the respondents for dissolution of partnership between them, accounting by the respondents and distribution of assets of the partnership on winding up of the firm through a Receiver. The appellant claimed that he and respondents 1 and 2 are partners in M/s. G.S. Builders, engaged in developing and letting out the commercial building in premises No.10-5-2/1/8/2/B, admeasuring 600 square yards at Dhobighat, Masab tank, Hyderabad. The respondents purchased 472 square yards in the said premises jointly under registered sale deeds, dated 17-06-1988 and 18-06- 1988, while the appellant was already in possession of about 130 square yards abutting the said premises. The respondents requested the appellant who was in real estate business since a decade, to develop the entire 600 square yards into a commercial building by sharing the cost of construction and profits equally. P.Ws.2 to 5 and 7 and Asadulla Shareef, son of Abdulla Shareef were present at the time of making the premises a partnership asset under oral partnership under the name and style of G.S. (Gafoor/Shafiuddin) Builders. The respondents asked the appellant to ignore their earlier application for permission for construction of a residential accommodation in their 472 square yards and the respondents employed in Kuwait, sent a total of Rs.4,50,000/- from time to time towards their contribution for construction. The appellant met the remaining cost of construction and the construction was made without obtaining any permission with a view to get it regularized later. The ground and first floors were constructed in June, 1994, of a value of Rs.18,00,000/- and agreement of partnership was executed between the parties for sharing the property equally. It was decided not to proceed with further construction of more floors. The appellant, with information to and consent of the respondents, was running the partnership office and the office of his political party in one mulgi in the ground floor, while he inducted some tenants in the remaining ground floor. When the Municipal Corporation of Hyderabad issued demolition notices to the respondents, in whose name the property ostensibly stood, an injunction was obtained in I.A. No.3955 of 1990 in O.S. No.3612 of 1990. On their return from Kuwait, the respondents got a notice issued falsely claiming absolute title to the entire building, for which the appellant gave a reply in October, 1995 and the appellant was forced to complain to Humayunagar police in Crime Nos.218 and 222 of 1995. The appellant also issued a public notice and a correction in Siasat Urdu Daily, for which the respondents responded with a public notice with false allegations in Siasat, dated 02-11-1995. The respondents filed O.S. Nos.4269, 4352, 4372 and 4373 of 1995 against the tenants inducted by the appellant and the appellant was also impleaded therein. The respondents illegally evicted Mohd. Yousuf and inducted their relation Mohd. Basheer who is running Al-Zeeshan Café since October, 1995 and a brother-in-law of the 1st respondent is running Al-Zeeshan pan shop in the premises. A sister’s son of the respondents is running Deccan Car Servicing Centre since June, 1991 and the rents realized from the hotel, pan shop and servicing center are unknown to the appellant. The respondents filed O.S. No.4596 of 1995 and I.A. No.5989 of 1995 to dispossess the appellant and the respondents fixed door ways preventing access to the stair-cases and the first floor. The appellant issued telegraphic notices to the respondents seeking dissolution of the partnership and rendition of accounts and filed the suit. The respondents resisted the suit claiming that they applied to the Municipal Corporation of Hyderabad for permission for construction of a building in two floors on 472 square yards absolutely belonging to them and when the Municipal Corporation did not reply for more than 30 days, the respondents gave a notice for starting the construction. The Municipal Corporation issued a notice to the respondents on 18-08-1990 under Section 452 of Hyderabad Municipal Corporation Act to stop the construction and threatening to demolish the building. Then O.S. No.3612 of 1990 was filed by the respondents for a permanent injunction and a temporary injunction was obtained in I.A. No.3955 of 1990. In that suit also, the respondents asserted the land and the construction to be exclusively belonging to them. The appellant and the respondents were close friends and the appellant was looking after the suit, as the respondents were working as a mechanic and a helper in Kuwait. The appellant obtained the signatures of the respondents on some blank papers for use in the suit against the Municipal Corporation and the respondents were sending monies to the appellant for making the construction. The documents dated 09-06-1994 were used by the appellant to make a claim to the suit property and the respondents filed different suits against the illegal occupants for ejection. The appellant never rendered any account for the monies sent to him for construction and this suit for dissolution of a non-existing partnership without settlement of account, is not maintainable. The respondents reserved their right to prosecute the appellant for cheating etc. The suit without any prior notice and in non-compliance of Section 44 of the Partnership Act and Order XXX Rule 1 of the Code of Civil Procedure, is untenable. Any joint common interest in the property or its returns will not create any partnership. The appellant is not the owner of 130 square yards adjoining 472 square yards and the appellant himself stated in his reply notice, dated 28-10-1995 that the said land belongs to neighbours who are claiming compensation at Rs.4,000/- per square yard. The appellant was only acting as an agent of the respondents in assisting in the construction. All the allegations of the appellant were specifically denied and the respondents desired the suit to be dismissed with exemplary costs. The respondents filed O.S. No.306 of 1996 for a perpetual injunction against the appellant from interfering with the subject property, further claiming to be paying taxes since the purchase of the property and to have let out a portion in the ground floor, while retaining the remaining portion in the ground floor and the entire first floor. They claimed to have entered into an agreement with Mohd. Jahangir Khan for running a function hall in the premises with equal profit sharing and the appellant to have created documents to make a false claim. They alleged the appellant to be attempting to break open the locks of the suit property and grab the same. The appellant in his written statement in that suit denied the claims of the respondents, reiterated his claims and contended that the property was in the possession of himself or his tenants. On such pleadings, the following issues were framed for trial in the suits. O.S. No.1464 of 1995: 1. Whether the plaintiff is entitled for dissolution of the partnership firm, rendition of accounts in respect of the suit property as prayed for ? 2. Whether there is any partnership firm between the plaintiff and the defendants under the name and style of M/s. G.S. Builders in respect of suit schedule property ? 3. To what relief ? O.S. No.306 of 1996 (Issues recast in the judgment): 1. Whether the plaintiffs are entitled for perpetual injunction as prayed for ? 2. To what relief ? P.Ws.1 to 7 and D.W.1 were examined and Exs.A.1 to A.53, B.1 to B.40, C.1 and X.1 were marked during the joint trial of the suits. The trial Court rendered the impugned common judgment firstly finding that there is no evidence to probablise the gift of 130 square yards in favour of the appellant by Habeeb Mohsin. It also found that the appellant failed to adduce any evidence to show the existence of the partnership firm—M/s. G.S. Builders. The trial Court observed that the respondents’ claims about the appellant supervising the construction on the respondents’ land of 472 square yards with the monies sent by the respondents to the appellant, were probablised by the evidence and consequently, the trial Court found the appellant to be not entitled to any relief of dissolution of partnership, rendition of accounts and distribution of assets and the respondents to be entitled to permanent injunction against the appellant from interfering with their possession of the subject property. The appellant failed and the respondents succeeded in the two suits accordingly. The appellant filed E.A. No.149 of 2001 in E.P. No.35 of 2001 claiming Mulgi No.11 in the subject property, and the trial Court by its order dated 03-03-2004 dismissed the said claim petition in consequence of the judgment in O.S. No.1464 of 1995. The appellant filed these appeals contending that Ex.A.30 probablises the arrangement of partnership, while Exs.A.25 and A.26 prove the oral gift of 130 square yards in his favour. The construction stands on 600 square yards, while the respondents claimed only 472 square yards and in fact, the Government filed L.G.C. No.170 of 1997 against the parties claiming 437.76 square yards to be its land. Habeen Mohsin’s address was unknown to the appellant and the exact extent of the premises could have been found out by appointing a commissioner. The burden of proving the circumstances under which they signed Ex.A.30, was on the respondents, which they failed to discharge, and Ex.A.29 general power of attorney in favour of the nephew of the respondents improbablises the respondents signing any blank papers. The trial Court misappreciated the oral and documentary evidence. While observing that this issue has to be tried along with the execution petition, the trial Court could not have dismissed E.A. No.149 of 2001 and hence, the appellant sought for reversal of the common judgment and the order in question. The appellant filed C.M.P. No.9780 of 2004 for appointment of an advocate commissioner to ascertain the exact extent of the subject premises with the assistance of a Government Surveyor contending that he had, in fact, filed I.A. No.1660 of 1995 in O.S. No.1464 of 1995 for appointment of a commissioner to note the physical features of the suit property, which was rejected by the trial Court on 19-09-1997. He again filed I.A. No.1526 of 2000 for the same purpose, which was rejected by the trial Court on 19-01- 2001. He also filed Ex.A.31 plan prepared by P.W.6 during trial indicating the extent to be 600 square yards and again filed I.A. No.702 of 2003 either to have a local inspection by the Court or to have the commissioner to note physical features, which was also dismissed on 29-04-2003. When the respondents did not claim any property beyond 472 square yards and when Exs.A.35 and A.35(a) disclose the extent to be more than 472 square yards, an advocate commissioner alone can make the Court know the exact extent of the premises. The respondents managed to get huge compensation from the Municipal Corporation of Hyderabad for the land and portion of the building demolished during road widening. Arguments of Sri B. Udaya Bhaskar, learned counsel for the appellant and Sri P. Narasing Rao, learned counsel for the respondents are heard at length. The points that arise for consideration herein are: (1) Whether the appellant has 130 square yards abutting 472 square yards of the respondents ? (2) Whether the partnership between the appellant and the respondents and the consequential action by the parties as claimed by the appellant are true ? (3) Whether the appointment of an advocate commissioner is necessary for a comprehensive adjudication of the questions in controversy ? (4) To what relief ? Point No.1: The appellant claims that he was in possession of approximately 130 square yards of site abutting 472 square yards purchased by the respondents under two sale deeds. The plaint in O.S. No.1464 of 1995 did not elaborate as to how the said 130 square yards belonged to the appellant. It is in his evidence as P.W.1 that the appellant refers to the original owner Habeeb Mohsin executing a general power of attorney in his favour in July, 1988 and also making an oral gift of 130 square yards to him in the presence of Syed Waheeduddin and Abdul Shookur. He further claimed that Waheeduddin filed Ex.A.25 affidavit in O.S. No.307 of 1996 and later died on 02-02- 1999 as per the death certificate Ex.A.26. While there is no reason to doubt the death of Syed Waheeduddin as stated in Ex.A.26, Ex.A.25 affidavit did not state as to how Syed Waheeduddin was connected with either the appellant or the original owner/donor. The affidavit states the gift to be of 128 square yards on 07-07-1988 in the presence of the said Syed Waheeduddin and Mohd. Abdul Shukoor Khan. It was also not stated as to how Mohd. Abdul Shukoor Khan is connected with the appellant or the original owner and under what circumstances these two alleged witnesses to the oral gift happened to be present at the time of the said gift and delivery of actual vacant physical possession to the appellant by the original owner. The affidavit also referred to the appellant improving the same, which improvement was not claimed by the appellant himself. If the gift was for a specified extent of 128 square yards, why the appellant was claiming 130 square yards, is also unexplained. The description of the properties sold to the respondents under Exs.B.1 and B.2 (Exs.A.22 and A.23) shows that there was road on the East and North, while there is house of Balram and Narayan on the South. While the Western boundary is described as neighbour’s house in Ex.B.2 (Ex.A.23), the property purchased under Ex.B.2 (Ex.A.23) is to the West of the property purchased under Ex.B.1 (Ex.A.22). Ex.A.23 in contrast with Ex.B.2 appears to mention Habeeb Mohsin as the Western neighbour, but the plans attached to Ex.A.23 and Ex.B.2 do not specify the Western boundary to be that of the vendor Habeeb Mohsin himself. Though Habeeb Mohsin was claimed to have executed Ex.A.27 general power of attorney on 07-07-1988 in favour of the appellant on the same day on which the alleged oral gift of 128 square yards was made as per Ex.A.25, Ex.A.27 made no reference to any such gift and Syed Waheeduddin, the deponent of Ex.A.25, was neither an attestor nor an identifying witness for Ex.A.27, whereas M.A. Shukoor Khan, who may be Mohd. Abdul Shukoor Khan, referred to in Ex.A.25, was such a witness. The appellant did not examine the said M. A. Shukoor Khan or the other attestor or the other identifying witness for Ex.A.27 and they were not claimed to be unavailable for such examination. P.W.2 to P.W.5 and P.W.7 also referred to the appellant having 130 square yards of land abutting the property purchased by the respondents and P.W.2 tried to claim that the transaction for 472 square yards of land in the name of respondents 1 and 2 and 130 square yards in the name of the appellant took place on the same day in his presence, while Exs.B.1 and B.2 (Exs.A.22 and A.23) were on 17th and 18th June 1988 and the oral gift was claimed by Ex.A.25 to be on 07-07-1988, which is also the date of Ex.A.27 general power of attorney. While the appellant himself never referred to the presence of P.W.2 at the time of the alleged oral gift, P.W.3 admitted that he was not present when Habeeb Mohsin gave 130 square yards to the appellant and he could not state the number of the premises of the said 130 square yards and did not observe whether Habeen Mohsin executed any document in favour of the appellant for 130 square yards. P.W.4 referred to the appellant and the respondents together purchasing 472 square yards paying the consideration together, while the sale deed was obtained only in the name of the respondents. But he admitted that he was not present at the time of delivery of 130 square yards to the appellant by Habeen Mohsin. P.W.5 was only told by the appellant about getting 130 square yards of land from Habeeb Mohsin abutting the land of the respondents and he does not know which part of the land was gifted to the appellant or whether the appellant got it by way of gift or purchase or whether a document was executed for the gift. P.W.7 also claimed about being similarly informed by the appellant about his having 130 square yards of site and the property was admittedly not measured in his presence and he does not know whether the construction was only in 472 square yards. The 1st respondent as D.W.1 denied the claims of the appellant and denied any knowledge about the oral gift of 130 square yards claimed by the appellant. He further denied the claims of the appellant about the said 130 square yards becoming a partnership asset and so on. Thus, apart from the self-serving and interested claims of the appellant himself, the only other evidence in support of the alleged oral gift is Ex.A.25, to corroborate which, none connected with Ex.A.27 executed on the same day as the alleged oral gift, was examined. The corroboration sought to be offered by P.Ws.2 to 5 and 7 is not only not of much probative value as analysed above, but also, personal knowledge of those witnesses about the alleged gift was not even claimed by the appellant. The appellant did not claim to have taken any further steps in pursuance of the alleged oral gift and delivery of possession, to have his name recorded in public records as the owner and possessor of such an extent and as will be referred to later, none of the other documents on record relating to the disputed construction clinchingly shows any such extent of 130 square yards being added or appended to 472 square yards of the respondents. The burden of proving the said gift and possession of 130/128 square yards is squarely on the appellant, which, he obviously failed to discharge and this point is answered accordingly. Point No.2: The appellant as P.W.1 claimed that the decision to build a commercial complex in a total extent of 600 square yards was taken in 1990 in the presence of P.Ws.2 to 5, Syed Lateef Ali, Asadullah Shariff and Ghulam Mujeebuddin, who were friends of both parties. Syed Lateef Ali, Asadullah Shariff and Ghulam Mujeebuddin were not examined and no reasons were assigned for the same. But it is true that it is the quality and not the quantity of evidence that counts. P.W.2 is the person who carried out electrical wiring work for the complex in question and his brother is a tenant in one of the mulgies in the complex, for both of which, the appellant was responsible. P.W.2, who is a childhood friend of the appellant, has no relation with the respondents and P.W.2 admitted that the appellant inducted his younger brother in the subject complex as tenant and that the respondents filed a suit against his younger brother, who is living together with him in the same house. P.W.3 is a neighbour and friend of the appellant and his brother since 25 years and he knows the 1st respondent only as a friend of the appellant’s brother, while he does not know the 2nd respondent. P.W.4, who claims to be classmate of the 2nd respondent, also obviously knows the parties since his school days and he admittedly gave evidence earlier in favour of the appellant in a criminal case. He gave evidence admittedly at the request of the appellant. P.W.5 claimed to be classmate of the 1st respondent and the appellant’s elder brother and claimed to be a friend of both the parties. He also gave evidence at the instance of the appellant and P.W.7 similarly claimed to be classmate of the 1st respondent and senior of the appellant. Even if P.Ws.5 and 7 cannot straight away be attributed with interestedness, the evidence of P.Ws.2 to 4 cannot be considered free from interestedness and as such, their evidence needs to be scrutinized with extra care and caution before any attempt for acceptance. The purchase of 472 square yards by the respondents under Exs.B.1 and B.2 (Exs.A.22 and A.23) is admitted and the alleged presence of the appellant at the time of such purchases is evidenced by his being an attestor and identifying witness to the documents. It is also true that Syed Waheeduddin, the deponent of Ex.A.25, appears to have acted as an attestor and identifying witness in both the documents. But these factors are not of much consequence, as the purchase and ownership of the respondents, of 472 square yards in total, is not in dispute and it is only the addition of 130 square yards of site and investment by the appellant in pursuance of the partnership that are in question. The appellant claimed as P.W.1 that in pursuance of the understanding, the respondents were sending amounts from Kuwait and he also invested for construction of the commercial complex, the incomes from which are to be shared subsequently equally between him and the respondents. He filed various letters along with covers in which they were received, in support of his claims. Exs.A.1 and A.3 from D.W.1 for sending drafts, required the appellant to hand over link documents for the land. Ex.A.4 from D.W.1 to the appellant enquired about obtaining permission for construction and also about the lands of the appellant, over which an advocate started construction. Ex.A.5 is similar and Ex.A.7 is about sending a cheque for Rs.1,10,000/-, out of which Rs.10,000/- were to be given to D.W.1’s mother. Ex.A.8 is about D.W.1 seeing the cassette, which the appellant sent (may be about the progress in construction) and a promise by D.W.1 to send another Rs.1,00,000/-. Ex.A.9 is about sending a draft for Rs.1,00,000/-. Ex.A.10 is similarly for another draft. Ex.A.11 is for sending a cheque for Rs.1,00,000/-. In Ex.A.17, D.W.1 again referred to a cheque for Rs.1,10,000/-, out of which Rs.10,000/- should go to his mother. Ex.A.18 is again about seeing two cassettes sent by the appellant and the promise to send Rs.1,00,000/- more within one or two months. Exs.A.19 and A.20 are similar and Ex.A.21 enquired the appellant about the stage of work, balance of wok and completion of work. Ex.A.23 from the 2nd respondent is also about permission for construction, etc., and Ex.A.34 is from the 1st respondent about sending money from the account of the 2nd respondent. None of Exs.A.1 to A.21, A.33 and A.34 (replicated due to the presence of originals and English translations) even remotely indicate anything about the alleged understanding and partnership between the parties and the language and content of all the letters fits in more with the claim of the respondents about their sending money from time to time from Kuwait for construction in their own land, which the appellant was supervising. Except Ex.A.47 statement of account said to have been maintained by the appellant for the amounts spent, there is no other document to show the total expenditure involved and assuming that