Vipin Chandra Dixit, J.

1. Heard Sri Ravi Kant, learned Senior Advocate assisted by Sri Tarun Agrawal, learned counsel for the petitioners and Sri P.K. Jain, learned Senior Advocate assisted by Sri H.P. Mishra, learned counsel for the respondents and perused the record.

2. This petition under Article 227 of the Constitution of India has been filed by the plaintiffs-petitioners for setting aside the impugned order dated 23.12.2021, passed by Additional District and Sessions Judge / Fast Track Court, Gorakhpur, in Misc. Appeal No. 18 of 2021 (Dwarika Prasad Kedia and another vs. Smt. Chanda Kedia and others).

3. Brief facts of the case is that the plaintiffs-petitioners had filed Original Suit No. 458 of 2017 (Smt. Chanda Kedia and another vs. Shri Dwarika Prasad Kedia and another) for restraining the defendants-respondents for unilaterally letting out the suit property situated at Mauja Ram Nagar, Karjahan, Tappa-Patra, Pargana Haveli, Tehsil Chauri Chaura, District Gorakhpur on rent or entering into rent agreement exclusively with their names.

4. It is pleaded in the plaint that the land was purchased by Sri Mathura Prasad Kedia on 05.06.1987 and an agreement was executed between Mathura Prasad Kedia and other family members who were agreed to invest the money in construction of godown over the land on 01.07.1987. As per agreement all the signatories of the partnership deed will co-owners of the property known as M.K. Properties and will entitled to gain profit on letting out the godown on rent as per their share. The share of plaintiffs-petitioners are 14% each and in total 28%.

5. Sri Mathura Prasad Kedia and Sri Prem Lata Kedia were initially authorized to act as Manager. Mathura Prasad Kedia died on 09.12.1995 and after his death, his 16% share was distributed amongst his wife Nanhibi Kedia and son Dwarika Prasad Kedia in the ratio 2% and 14% by agreement dated 29.01.1996. Sri Dwarika Prasad Kedia (defendant no. 1) replaced Sri Mathura Prasad Kedia and was authorized to manage the affairs of firm with Smt. Prem Lata Kedia.

6. The plaintiffs having 28% share in the suit property and as such they are entitled to get rent as per their share but the defendants letting out the godown without the consent of plaintiffs and other partners of the firm and deprived the plaintiffs from benefit of suit property.

7. The plaintiffs-petitioners had also moved an application for interim injunction under Order 39 Rules 1 and 2 of C.P.C. for restraining the defendants not to let out the godown to anyone with their own names without the consent of plaintiffs.

8. The defendants-respondents had filed objection to the interim injunction application, which is paper no. 17-Ga denying the plaint allegations. It was pleaded by the defendants that as per family settlement dated 11.09.2001 between the parties in respect of suit property and other family members, the defendants became the owner of suit property in equal share and husband of plaintiff no. 1 get one shop at Urdu Bazar, Gorakhpur and plaintiffs had no right or ownership in respect of the suit property.

9. The plaintiffs-petitioners had filed rejoinder affidavit to the objection filed by defendants-respondents denying the existence of family settlement dated 11.09.2001 and it was specifically pleaded that the family settlement dated 11.09.2001 was not signed by plaintiffs and the partnership firm established on 01.07.1987 is still in existence and 28% shares are belonging to the plaintiffs-petitioners.

10. The learned trial court after considering the pleadings of the parties, evidence and materials which are available on record had recorded the finding that the partnership firm was constituted by late Mathura Prasad Kedia on 01.08.1987 in the name of M/s M.K. Properties with the 7 members of the family and Mathura Prasad Kedia and Prem Lata Kedia were appointed as Manager to manage the affairs of property and it was agreed by all the partners of the firm that managers are authorized to let out the godown on rent and the income from the rent will be distributed to all the partners according to their shares. After the death of Mathura Prasad Kedia in continuation of agreement dated 01.08.1987, another agreement was executed on 29.01.1996 and Dwarika Prasad Kedia (defendant no. 1) was authorized to act as Manager in place of Mathura Prasad Kedia.

11. The learned trial court has further recorded the finding that the family settlement dated 11.09.2001 is in respect of family property and there is no provision of other partners of the firm and it was not signed by plaintiffs and the partnership firm established on 01.07.1987 was not dissolved. The trial court had further recorded the finding that plaintiffs had fully proved the prima-facie case that the partnership firm constituted by Sri Mathura Prasad Kedia on 01.07.1987 is still exists and the share of plaintiffs are 28% and since the defendants are letting out the godown exclusively with their own name without the consent of plaintiffs and the plaintiffs are depriving to receive rent as per their share of 28% in the partnership firm. The trial court had allowed the interim injunction application filed by plaintiffspetitioners under Order 39 Rules 1 and 2 C.P.C., vide order dated 12.03.2020.

12. The defendants-respondents had filed appeal under Order 43 C.P.C. against the order dated 12.03.2020 which was registered as Misc. Appeal No. 18 of 2021. The learned appellate court had allowed the Misc. Appeal filed by defendants-respondents and set aside the order dated 23.12.2021.

13. The present petition under Article 227 of the Constitution of India has been filed by the plaintiffs-petitioners against the order dated 23.12.2021.

14. It is submitted by learned Senior Advocate appearing for plaintiffs-petitioners that admittedly, the firm known as M.K. Properties was constituted by Mathura Prasad Kedia and other family members who agreed to invest the money in construction of godown on 01.07.1987 and all the signatories of partnership firm became the co-owner of the properties and were entitled to gain profit of letting out the godown on rent according to their share. Sri Mathura Prasad Kedia and Smt. Prem Lata Kedia were appointed as Manager and were authorized to let out the godown on behalf of partnership firm and all the partners of the firm were entitled to receive profit from rent according to their share. The plaintiffs are having 28% share in the partnership firm and are entitled to receive rent according to their share. After the death of Matura Prasad Kedia, his share was distributed amongst his wife and son Sri Dwarika Prasad Kedia. Sri Dwarika Prasad Kedia, son of Mathura Prasad Kedia was authorized to work as Manager in place of Mathura Prasad Kedia. Dwarika Prasad Kedia, defendant was authorized to let out the godown on rent on behalf of the other partners of the firm. It has further submitted that the lower appellate court had erred in relying the family settlement dated 11.09.2001 in respect of suit property as it was never signed by plaintiffs and even there is no provision of other partners of the firm. It is further submitted that the partnership firm constituted in the life time of Mathura Prasad Kedia was never dissolved and the trial court had rightly passed the injunction order in favour of plaintiffspetitioners and the lower appellate court has committed gross illegality in allowing the Misc. Appeal filed by defendantsrespondents. It is further submitted that the agreements dated 01.07.1987 and 29.01.1996 were admitted to all the parties and the family settlement dated 11.09.2001 was not signed by the plaintiffspetitioners. Lastly, it is submitted that the lower appellate court had failed to consider that the defendants were only authorized to act as Manager on behalf of other partners of the partnership firm and unless, the partnership firm is dissolved, the defendants have no right to become owner of the property. It is further submitted that the lower appellate court had erred in allowing the Misc. Appeal filed by defendants-respondents on the basis of possession ignoring the fact that the defendants were only authorized to act as a Manager and they never became owner of the suit property and there was no dispute between the parties in respect of possession of suit property and admittedly, the defendants-respondents were authorized to act as a manager on behalf of other partners of the partnership firm.

15. On the other hand, learned Senior Counsel appearing for defendants-respondents has submitted that the order impugned has been passed by the lower appellate court after considering the evidence and materials which are available on record and there is no illegality or irregularity in any manner. It has further been submitted that as per family settlement dated 11.09.2001, the defendants became owner of the suit property in equal share of 50-50% and they are receiving the rent. The plaintiffs-petitioners have no right over the suit property.

16. . Considering the rival submissions of learned counsel for the parties and from perusal of record it is apparent that the land was initially purchased by Sri Mathura Prasad Kedia on 05.06.1987. The partnership firm was created by Sri Mathura Prasad Kedia and other family members who agreed to invest the money and all the signatories of partnership firm are co-owner of property known as M/s M.K. Properties and they entitled to gain profit of letting out godown on rent as per their share. As per agreement dated 01.07.1987, the share of plaintiffs are 14% each and in total 28% and they are entitled to get profit from rent to the extent of 28% according to their share. After the death of Mathura Prasad Kedia, the defendant Dwarika Prasad Kedia became the Manager of the partnership firm only to manage the affairs of partnership firm known as M/s M.K. Properties. The defendant Dwarika Prasad Kedia was only authorized to let out godown and to work in the interest of partnership firm on behalf of other parties. The partnership firm which was created on 01.07.1987 was never dissolved. The alleged family settlement dated 11.09.2001 was never signed by plaintiffs and as such it was not binding effect upon the plaintiffs-petitioners.

17. The lower appellate court has failed to consider that the partnership firm created on 01.07.1987 was never dissolved and admittedly the alleged family settlement dated 11.09.2001 is only in respect of family property and there was no provision for other partners of the firm and the partnership firm was never dissolved as per law.

18. The lower appellate court has also failed to consider that the plaintiffs-petitioners are having 28% share in the suit property and they cannot be ousted by family settlement dated 11.09.2001 which was never singed by plaintiffs-petitioners and other members of the partnership firm.

19. In view of above, the petition filed by plaintiffs-petitioners is allowed and the order date 23.12.2021, passed by Additional District and Sessions Judge / Fast Track Court, Gorakhpur, in Misc. Appeal No. 18 of 2021 (Dwarika Prasad Kedia and another vs. Smt. Chanda Kedia and others) is set aside.

20. However, the trial court is directed to expedite the disposal of Original Suit No. 458 of 2017 (Smt. Chanda Kedia and another vs. Shri Dwarika Prasad Kedia and another), without being influenced with the observations made above, expeditiously without granting any undue adjournment to either of the parties, preferably within a period of one year from the date of production of certified copy of this order, unless there is any legal impediment.