JUDGMENT - Thakker, J.

(1) This revisional application arises out of a suit filed by Respondents 1 and 2, Original plaintiffs (hereinafter referred to as Respondents 1 and 2) in the Court of Small Causes, Bombay, for ejectment against the 3rd Respondent-original 1st defendant and the Petitioner-original 2nd Defendant . The facts giving rise to this application shortly stated are:

(2) Respondents 1 and 2, at all times material were and are the trustees of a private trust known as " the Chhotatal Hariram Trust" and as such trustees they are the owners of an immovable property situate at 307-A Bhandarkar Road, Matunga, Bombay.

(3) By an agreement of lease dated May 22, 1923 the trustees for the Improvement of the City of Bombay (the successors where of are the trustees of the Port of Bombay) agreed to demise unto one Kaikhushrau Rustom Irani a vacant piece of land and measuring 643 square yards situate at Bhandarkar Road, Matunga (on which the present property at 307-A has been erected0 on the terms and conditions therein contained. One of the conditions imposed an obligation on the said Irani to erect buildings and to execute works in accordance with the stipulations, contained in the said agreement. It appears that pursuant to the said stipulations, the said Irani executed the construction work and erected the building on the said plot of land. On compliance with the above covenants, the Trustees for the Improvement of the City of Bombay, by an indenture of lease dated April 19,1925, demised unto the said Kaikhusharu Irani the said land and buildings constructed thereon for a term of 999 years on the terms and conditions contained therein. The construction so put up came to be known as Firdoshi Buildings and later on as Kutchi House.

(4) It appears that there were several assignments of the leasehold interest in the said property and ultimately on June 27, 1950, the said property and the leasehold interest therein was assigned to Respondents 1 and 2. On October 22, 1951, the said property was duly transferred by the Trustees of the Port of Bombay to the name of Respondents 1 and 2 as the trustees of the said trust and thereby recognised Respondents 1 and 2 as the lessees of the said property under the lease dated April 19, 1925.

(5) It appears that in or prior to September 1950 Hari Ramchandra Hagdekar, the 3rd Respondent herein was the tenant of shop No. 1 on the ground floor of the said building paying a monthly rent of Rs. 90 therefor. The 3rd Respondent was carrying on business in the firm name and style of K. L Hindu Hotel as the sole proprietor thereof. By an indenture of assignment dated July 22, 1954, the 3rd Respondent sold his business as a going concern together with the stock and the good will thereof, and incidentally assigned the tenancy rights in the suit shop in favour of one D. J. Salia. It appears that before the execution of the said assignment, the 3rd Respondent had changed the name of his business from K.L Hindu Hotel to Sukh Niwas Restaurant.

(6) It appears that the said D.J Salia changed the name of his business to Jai Café. On February 15, 1956 the said D.J. Salia sold his business as a going concern together with the good will thereof and assigned the tenant rights in respect thereof to N. M Nayak, to present petitioner before us.

(7) On may 26, 1956 Respondents 1 and 2 terminated the tenancy of the 3rd Respondent by serving a notice to quit. On September 1956 Respondents 1 and 2 ,filed the suit to ejectment from the suit shop against the 3rd Respondent and the Petitioner in the Court of Small Causes, Bombay. The Petitioner was joined in the said suit as he was in the occupation of the suit shop.

(8) The ejectment from the suit shop was sought by Respondents 1 and 2 on numerous grounds.

(9) On April 30, 1959, the Judge of the Court of Small Causes who tried the suit dismissed the same. An appeal therefrom was preferred by Respondents 1 and 2 to the Appellate Bench of the Court of Small Causes Bombay, and th

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