JAGDISH CHANDER KHURANA AND ANR. Vs. GHANSHYAM DASS

JUDGEMENT

(1.) THIS second appeal has impugned the judgment and decree dated 25.5.1981 endorsing the judgment and decree dated 28.1.1977 passed by the trial judge whereby the suit of the plaintiff was dismissed. Brief facts of the case are as follows:

(2.) ON 8.9.1981 the following substantial question of law was formulated by this court which inter alia reads as follows:

(3.) ARGUMENTS have been countered by learned counsel for the respondent. It is submitted that a plain reading of the document clearly shows that the dominant intention of the parties was to create a lease and i.e. how the exclusive possession of the premises had been handed over to the defendant. Attention has been drawn to the various clauses of the disputed document Ex. P -1; attention has also been drawn to the cross -examination of PW -1 and PW -2, the brother of the plaintiff wherein the word workshop finds mention. Submission of the counsel being that the workshop makes a reference to the premises which was the subject matter of the agreement between the parties which reflects upon their intention; the intention being to lease out the said premises. Attention has been drawn to that part of the cross -examination of PW -1 wherein he has stated that he has not paid any sales tax or income tax of the workshop since it had been handed over to the defendant; he has no connection with the business of M/s. Prison Mechanical Works which is the business of the defendant; he has not replaced the machinery since then; he has not maintained the accounts of the workshop; earlier there was one employee and now there are 3 -4 employees. PW -2 in his cross -examination has stated that neither he and nor his brother PW -1 has any connection with the business of the defendant; defendant used to open the premises in the morning; one more latte machine and drilling machine had been installed by the defendant. Attention has also been drawn to the testimony of the witnesses of the defendant; DW1 and DW3 are the neighbours or the defendant; DW2 is his brother; DW4 is his son and DW5 was an inspector of the MCD. It has come in their evidence that defendant used to open the workshop in the morning and lock the same at night; latte machines had been increased from one to four -five; press and grinder had been added. The defendant himself was examined as DW6. Learned counsel for the defendant has drawn the attention of this court to the definition of "workshop" in the Webster's English Dictionary as also the definition of "factory" and "business"; submission being that what had been given by the plaintiff to the defendant was the "workshop" and not the "business" as has been now been contended by the learned counsel for the appellant.