JUDGMENT - P.S. PATANKAR, J.:---The question that arises for my consideration in this appeal is whether the appellant is protected under section 15-A of the Bombay Rents, Hotel Lodging House Rates Control Act, 1947 (hereinafter called Bombay Rent Act)? If protected then admittedly the Civil Court will be having no jurisdiction to decide the suit.

2. A few facts are as follows.

3. There is one Hair Cutting Saloon by name 'Bombay Hair Dressers' situated at 110/2, Shivaji Nagar, in the City of Pune. The structure belonged to one Smt. N.K. Jangi. One shop premises out of it was originally leased out to the father of the plaintiff who was carrying on hair cutting business in the name of 'Bombay Hair Dressers'. Sometime in 1962, the same was given to the defendant No. 1 and the defendant No. 1 went on carrying on the said business till his death and then it is carried on by defendant No. 4. Defendant Nos. 2 to 4 are sons of defendant No. 1.

4. The plaintiff filed special civil suit in the Court of Civil Judge, Junior Division, Pune, for getting possession of the suit premises on the ground that the shop was given to defendant No. 1, as licensee for conducting at the rate of Rs. 200/- per month. Defendant No. 5 has been brought into the shop premises by Defendant No. 2 to Defendant No. 4 and is behaving arrogantly. Defendant No. 1 started claiming right in the shop and, therefore, the plaintiff did not want him to be in possession. The plaintiff also claimed that there are various articles belonging to him in the said shop and he was entitled to get those articles or alternatively an amount of Rs. 2,800/- towards their price.

5. Written statement came to be filed and inter alia it was contended that defendant No. 1. is the real uncle of the plaintiff. The plaintiff's father and the defendant No. 1 stayed together. They formed a joint family which was also having another hair cutting shop by name 'Bengal Hair Dressers'. Thereafter they took the suit premises on rent and started the 'Bombay Hair Dressers'. The tenancy was taken in the name of the plaintiff's father. It was, therefore, contended that the tenancy was a joint tenancy of plaintiff's father and defendant No. 1. It was alternatively contended that defendant No. 1 was independently doing business in the suit premises since last about 15-16 years. The rent of the suit premises was Rs. 21.50. Defendant No. 1 was paying Rs. 121.50 to the plaintiff's father. The plaintiff has no concern whatsoever with the business and he was only original tenant of the premises. In view of the provisions of law, defendant No. 1 got the tenancy rights. Therefore, prayed for dismissal of the suit.

6. The trial Court raised various issues and decreed the suit. The appeal filed was also dismissed and hence this appeal by defendant No. 4.

7. The learned advocate appearing on behalf of the appellant (defendant No. 4) contends that the learned Judge has erred in holding that the original defendant No. 1 does not get protection of section 15-A of the Bombay Rent Act. In his submission, the defendant No. 1 was the licensee in possession of one room exclusively on 1-2-1973. One license was not terminated and, therefore, he was entitled to be protected and it was an error to hold that he was merely conductor of the business and, therefore, excluded under the definition of licensee as contained in section 5(4-A) of the Bombay Rent Act.

8. The learned advocate appearing on behalf of the respondent No. 1 (plaintiff) supports the decree passed by the Court below and further contends that there is no substantial question of law involved in the second appeal and, in any case, as the defendant No. 1 contended that there was a joint tenancy of plaintiff and defendant No. 1, defendant No. 1 was estopped from contending that he was a licensee of the suit premises protected by the Bombay Rent Act. According to him, such a plea cannot be raised in view of section 116 of the Evidence Act.

9. It is admitted that there was n

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