Judgment

SHINGHAL, J.:- This appeal of the defendant, by certificate, is directed against the appellate judgment of the High Court of Bombay dated June 27/28, 1968. As the appeal must succeed on a short point of law, it will be enough to state those facts which bear on it. It is a matter of regret that a voluminous paper-book should have been prepared in this case and its hearing delayed for so long.

2. Shivanna Devadiga, husband of plaintiff No. 1 and father of the remaining plaintiffs, had a hotel known as Krishnananda Upahar Graha in Bombay. Defendant Siddu Venkappa Devadiga was his sisters son. According to the plaintiffs, Shivanna started another hotel known as Purshottam Restaurant at a distance of about a furlong from Krishnananda Upahar Graha. As the parties were governed by Aliya Santhana Law, Shivanna looked after the defendant, his mother and her other children. The plaintiffs pleaded that the defendant was brought to Bombay by Shivanna and was employed by him in Purshottam Restaurant upto about 1955. He then went to his place in South Kanara, and did not return to Bombay until after Shivannas death on September 8, 1958. The plaintiffs further pleaded that as the defendant gave an assurance that he would look after the interests of Shivannas widow (plaintiff No. 1) and her children, they made over the key of Purshottam Restaurant to him. It was also the case of the plaintiffs that the defendant began to claim that the Purshottam Restaurant belonged to him, and refused to deliver possession thereof them when they returned to Bombay after performing the obsequies ceremonies of Shivanna. The plaintiffs accordingly instituted the suit which has given rise to this appeal on February 14, 1961, claiming possession of Purshottam Restaurant, a sum of Rupees 7,000/- as damages and/or compensation from September 9, 1958 upto the date of the suit, with interest, and any further amount as damages which the Court deemed just and proper.

3. The defendant controverted the claim of the plaintiffs and claimed that he had always been the sole and exclusive owner of Purshottam Restaurant ever since 1940 when it was started, that he had taken the premises of the restaurant on lease from the landlord in his own name, had obtained the municipal licences, the police licences and authorisations in his own name from the very inception, and that he had always been in custody and possession of that business.

4. The trial Court found that there were several circumstances which negatived the claim of the plaintiffs, and dismissed the suit by its judgment dated September 30, 1963. The plaintiffs went in appeal to the High Court and as it has been allowed and the suit has been decreed, the defendant has come up in appeal to this Court.

5. It has been argued by counsel for the appellant that the High Court committed a serious error of law in setting up a new case for the plaintiffs, in its impugned judgment, by holding that the Purshottam Restaurant was a benami transaction of Shivanna, who was its real owner, when it found that there could be no other ground for interfering with the finding of the trial Court about the defendants ownership and possession of the business. It has accordingly been urged that the judgment and decree of the trial Court were wrongly set aside, and should be restored. As we shall show, there is justification for this argument.

6. We find that the High Court took several "circumstances" into consideration while examining the competing claims of the parties to the restaurant. It found that some of the circumstances were in favour of the plaintiffs, but it was faced with a "difficulty" which has been stated by it as follows -

"The difficulty in the present case has been created because the Municipal licences, Police licences and authorizations are in the name of defendant. To this aspect we will have to revert a little later. At this stage it is sufficient to say that the mere fact that the business is run in the name of particul