-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY VPH CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER No. 276 OF 2003 IN REGULAR CIVIL SUIT No. 211 OF 2002 Ganpatrao Gundale & Ors. Appellants Vs. Ananda B. Katiwale & Anr. Respondents Mr. G. B. Bagwe, Advocate for appellcants. None for respondents. CORAM CORAM CORAM : Smt. R. S. DALVI, J. : Smt. R. S. DALVI, J. : Smt. R. S. DALVI, J. DATE DATE DATE : June 13, 2007. : June 13, 2007. : June 13, 2007. P.C. P.C. P.C. - - - . The appellant has challenged the order of the learned District Judge Kolhapur under which the order of dismissal of suit under Section 69 of the Indian Partnership Act is set aside and the suit is remanded for leading evidence and for being heard on merits. It is contended on behalf of the appellants that the parties to the suit had entered into partnership deeds from time to time. They dealt with agricultural land. The respondents used to cultivate the land under tenancy. The appellants have relied upon 7-12 extracts, showing that the respondents are not shown in the other rights column. Those aspects, which are to be dealt with on merits at the time of -2- trial. 2. The learned District Judge has held that the question of the rights of the plaintiffs in the suit for injunction or as partners is a mixed question of law and fact, hence, shall have to be determined on merits, at the trial of the suit. The issue relating to the bar under Sec. 69 of the Partnership Act would have to be decided together. There is no material irregularity in the appeal. The rights of the appellant are not prejudiced. 3. The reliance of the appellants upon the judgments under S. 69 of the Partnership Act or under S. 92 of the Indian Evidence Act must apply as per the facts of each case. As held in the case of -Edullji Meharbanji Vs. Edullji Meharbanji Vs. Edullji Meharbanji Vs. Lala Lala Lala Shyam Shyam Shyam Sunder Lal and another, [A.I.R.(30) Sunder Lal and another, [A.I.R.(30) Sunder Lal and another, [A.I.R.(30) 1943 1943 1943 Allahabad 192], Allahabad 192], Allahabad 192], the trial Judge shall have to decide whether the partnership was sham or whether it was indeed meant to be as stated in the complaint. Evidence is therefore required to determine all the issues together. The impugned order is therefore, correct. Appeal is accordingly dismissed. -3- 4. The learned advocate for the appellant applies for expedition of the suit. No case is made out for expedition. Application for expetition of appeal is rejected. Sd/- [ Mrs. R. S. DALVI, J.] Mrs. R. S. DALVI, J.] Mrs. R. S. DALVI, J.]