Advocates:
['S V CHILLARGE', 'C R DESHPANDE', '', 'V C SOLSHE', 'R/ DELETED']

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

APPELLATE SIDE, BENCH AT AURANGABAD

SECOND APPEAL NO. 151 OF 1993

1.

Shivraj Maharudrappa Wadje,

Age 47 yrs., Occu. Business,

2.

Umakant Shivraj Wadje,

Age 28 yrs., Occu. Business,

Both residents of Udgir,

Dist. Latur

....Appellants.

Versus

1.

Ramchandra Venkatrao Kapse

(Deleted vide Court's order

dated 4.12.1996)

2.

Mulshankar Ramchandra Kapse,

Age 50 yrs., Occu. Agriculture &

Service, R/o. Nalgir, Tal. Udgir,

Dist. Latur.

....Respondents.

Shri. Chaitanya Dharurkar Advocate holding for Shri. S.V. Chillarge,

Advocate for the appellants.

Shri. V.C. Solshe, Advocate for the respondent No. 2.

CORAM :

R.M. BORDE, J.

DATE :

3rd March, 2010

ORAL JUDGMENT :

1.

This is an appeal presented by the original plaintiff raising

exception to the concurrent judgments recorded by the Courts below.

2.

The appellant (hereinafter referred to as 'plaintiff') instituted

Regular Civil Suit No. 278/1982, claiming decree of perpetual injunction

against the defendants, who are related to each other as father and son,

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respectively. Plaintiff No. 2 is son of plaintiff No. 1. So also, defendant No.

2 is son of defendant No. 1. The plaintiffs contend that they are carrying

on business of manufacturing furniture and are in actual possession of

the suit shop and godown bearing Municipal Nos. 2-3-111 and 2-3-139

situated near Bharat Market, Gandhi Road at Udgir on the basis of lease

agreement. It is the contention of the plaintiffs that the suit shop and

godown were given to the defendants under the oral lease agreement

since Diwali 1978. The agreed rent was settled at Rs. 3500/- per Diwali

year. They further contend that initially an amount of Rs. 3500/- was

tendered towards advance rent for the suit shop and godown on 9.6.1978

for the Diwali year 1978-79 and rent deed was got executed on tender of

payment on 9.6.1978. The plaintiffs further contend that they were

carrying on the business in the name and style as "Prakash Furniture

Centre" since 1978 till Diwali 1981 and since Diwali 1981 they are

running the business in the name and style as "S. Raj Concerns" and

they claim to have paid rent to the tune of Rs. 6000/- for two years on

5.1.1982 and amount of Rs. 1,000/- towards repair expenses was adjusted

in the amount of rent paid to the landlord. It is contended that the

defendants caused obstruction to the possession of the plaintiffs over

the suit premises in the year 1982. As such, they were constrained to file

the suit.

3.

The defendant No. 1 resisted the suit by filing written statement.

The defendant No. 1 denied that defendant No. 2 is the member of joint

family. He contends that the defendant No. 2 did not constitute joint

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Hindu family and there is separation of share amongst them. It is denied

by the defendant that the suit shop is let out by the defendants together

in favour of plaintiffs in view of oral lease agreement arrived at during

Diwali 1978. The another contention raised by the plaintiffs in the plaint

has also been specifically denied by the defendant. It is contended by the

defendant No. 1 that the suit shop having Municipal No. 2-3-111 was let

out to one Malappa Sarsambe and Subhash Narwane of Udgir for

carrying on business of furniture on 1.1.1978 and the rent is fixed at the

rate of Rs. 8,151/- per annum. The rent deed was got executed from the

persons named above by the defendant No. 1. It is their contention that

during passage of time Malappa became ill and was unable to take part

in business and as such, Subhash Narawane has taken his brother-in-law

i.e. plaintiff No. 1 as a partner in business and continued the said

business up to Diwali 1981. According to defendant No. 1, the original

tenants of the shop were Malappa and Subhash and the plaintiff has no

concern with the business. It is his further contention that the alleged

possession of the plaintiffs