JUDGMENT - R.A. JAHAGIRDAR, J.:---The appellant has filed a suit in the City Civil Court at Bombay, being S.C. Suit No. 304 of 1987. The suit was filed for an injunction restraining the defendants from entering into the suit premises which are business premises where the plaintiff was conducting a business described as hotel business. In practise it means a business where drinks and eatables are served to the customers. In that suit he took out a Notice of Motion bearing No. 2630 of 1987 and another Notice of Motion bearing No. 285 of 1987. These notices of motion are dated 27th of April, 1987 and 6th of January, 1987 respectively. Notice of Motion No. 2630 of 1987 was for appointment of a receiver in respect of the suit property.

2. Before we proceed to mention the circumstances leading the parties to this Court, it would be necessary to briefly mention the facts which led the appellant, hereinafter referred to as "the plaintiff" to file the suit in the City Civil Court. The plaintiff had come in possession of the suit premises under an Agreement of April 1969 entered into between the plaintiff and one Krishna Patil. On 1st of May, 1969 this agreement was reduced to writing. The plaintiff contained to be in possession of the suit premises till the middle of 1976. In the meantime, on 4th of February, 1976 Krishna Patil, the original person with whom the plaintiff had entered into the agreement, expired. Thereafter on 1st of May, 1976 the plaintiff entered into another agreement, described as the conducting agreement, with Subhash Krishna Patil, who is the son of Krishna Patil. He is defendant No. 4 in the suit.

3. It is alleged in the plaint and it seems to be admitted between the parties that the building in which the suit premises are situated were in a dilapidated condition and the tenants formed themselves into an association for repairing the entire building. Of the contribution towards the repairs the plaintiff has paid a sum of Rs. 18,000 - Rs. 12,000 2nd of December, 1985 and Rs. 6,000 on 12th of December, 1985. Defendant Nos. 2 and 3 in the suit were authorised on behalf of the tenants of the building to carry out the repairs and they have passed receipts acknowledging receipt of the amounts paid by the plaintiff, though the receipts are undoubtedly in the name of defendant No. 4.

4. A note may also be taken of some parallel proceedings. The sister of defendant No. 4 had filed a suit in the City Civil Court for maintenance after the death of Krishna Patil. That suit was filed against defendant No. 4. The plaintiff has also been made a party in that suit. It has been mentioned that in that suit the plaintiff has deposited a sum of Rs. 10,000 which amount was probably to be paid to the plaintiff in that suit.

5. The 4th defendant has also filed a suit in the Small Causes Court against the present plaintiff for possession of the suit premises. That suit is said to have been filed for possession on the ground of non-payment of compensation or at least a prayer was made for the recovery of the amount of compensation which was allegedly not paid by the plaintiff. That suit was withdrawn on 5th of December, 1986. The present suit has been filed on 14th of January, 1987 and the notices of motion mentioned above were taken out by the plaintiff.

6. The question before the learned trial Judge was who was in possession of the suit premises on the date of the suit. The learned trial Judge, after considering the entire material which was placed before him, has given a very lucid and elaborate judgement in which he held that the plaintiff has proved that he was in possession of the suit premises on 14th January, 1987. The learned Judge had appointed a Commissioner who visited the suit premises on 24th of April, 1987. The Commissioner had in his report stated that defendant No. 4 was found to be carrying on the business of selling tea along with Mrs. Maria D'Souza, who was joined in the suit as defendant No. 5. That there were some of th

Click Here to Read the rest of this document