JUDGMENT :

S.B. Sinha, J.

Leave granted.

2. Parties herein are brothers. The dispute between them is tenancy right in respect of a premises known as 'Navalkar Building' situate at N.C. Kelkar Road, Dadar in the town of Mumbai. Appellant herein allegedly acquired the said tenancy right in terms of a deed of assignment entered into by and between him and one Saraswati Balkrishna Pawar and three others. One Krishna Tatoba Pawar alias Balkrishna Tatoba Pawar was the original tenant of the said premises. He was running a hair cutting saloon therein under the name and style of 'Anant Hair Dressing Saloon'. He died leaving behind him the assignors of the said deed of assignment dated 18.01.1966. The business as also the tenanted premises was assigned for valuable consideration. He was allegedly carrying on business therein. Leave and licence agreement was executed by him in relation to the self-same premises in favour of one Shri Walke on 01.02.1970. The said Walke was running a business in the said premises under the name and style of 'Deepak Provisional Store'. A dispute arose between the parties resulting in initiation of a proceeding under Section 145 of the Code of Criminal Procedure. The properties were attached. The said Walke also filed a suit. The said suit is said to have been compromised. Appellant herein is said to have obtained possession of the said premises on 23.03.1978, whereafter he started a business under the name and style of 'Shree Medico'.

3. The parties hereto i.e. the three brothers, entered into a partnership on 01.04.1971. The same was dissolved on 31.03.1977, inter alia, on the premise that the appellant had been claiming full ownership in relation to the said tenanted premises as also the business in Shree Medico. A suit was filed by Respondent No.1 in the City Civil Court, Mumbai, which was registered as S.C. Suit No.5903 of 1981 wherein, inter alia, the following prayers were made :

(a) It be declared that the Plaintiff and the Defendants Nos. 1 and 2 have ? shares in the suit business of Medical and General Store carried on Navalkar Building on the ground floor, N.C. Kelkar Road, Dadar, Bombay 400 028 as also the tenancy rights in the premises as also the premises on the ground floor of Navalkar Building, N.C. Kelkar Road, Dadar, Bombay-400 028.

(b) It may be declared that the partnership business of Medical and General Stores carried on in Navalkar Building on the ground floor, N.C. Kelkar Road, Dadar, Bombay-400 028, stood dissolved as from the date of the suit or from such other date as this Hon'ble Court may deem fit.

(c) The accounts of the partnership business of Medical and General Stores be made up and the Plaintiff be awarded the amount found due to his share at the foot of the account."

4. Although in the said suit allegedly no relief was claimed in respect of the business of the Deepak Provisional Store, at the hearing, the plaintiff made his claim in respect of the business running under the name and style of 'Shree Medico' and claimed interest in the said 'Deepak Provisional Store'. The appellant in his written statement did not raise any question as regards legality or otherwise of the said tenancy right in the partnership in terms of Section 15 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (for short, 'the Bombay Act').

5. In the said suit, inter alia, the following issues were framed :

"1. Whether the Plaintiff proves that the partnership firm of M/s Shreedhar Govind Kamerkar was/is registered under the Indian Partnership Act ?

2. Is the answer to the above issue is in the affirmative, whether the Plaintiff proves that the business known as Deepak Provision Centre and the shop premises on the Ground Floor, Navalkar Building, N.C. Kelkar Road, Dadar, Bombay-400 028 ?

3. If the answer of the above issues in the affirmative, whether the Plaintiff proves that on 31st March, 1977 the said business of Deepak Provision Centre was in existence ?

4. If the answer to the above issues i