MIYABHAI JAMALBHAI Vs. KARIMBHAI MAHOMEDBHAI

JUDGEMENT

(1.) The suit from which this second appeal arises was instituted by the plaintiff respondents Nos. 1 and 2 for a declaration that they are entitled to continue in possession of stall No. 135 situated in the municipal market at Broach and belonging to broach Borough Municipality - defendant No. 1 and that the defendant No.2 had no right or interest therein and for a permanent injunction restraining the defendants from causing any obstruction either by themselves or through their servants in the possession or enjoyment thereof.

(2.) The Broach Borough Municipality owns certain stalls in the municipal market in the Katopore Bazar, Broach, and they have been given on licence to different merchants. The stall bearing No. 136 was at one time occupied by the plaintiffs and defendant No. 2. It also appears that they formed a partnership firm and were carrying on their business in that shop. On 23-1-1952, the plaintiffs gave an application Ex. 170 to the Municipality of Broach stating that they were in possession of stall No. 135 and that it was a partnership asset and that, therefore, they should be given a licence in respect of the same. They also alleged that the defendant no. 2 was acting contrary to their rights in the enjoyment of the said stall. After making some inquiries, defendant No. 1 found that Rs. 476 were being paid by way of licence fees from the partnership assets of the plaintiffs and the defendant no. 2, and consequently a notice was issued to defendant No. 2 to put in his way in respect of that application. The defendant No. 2, however, did not appear and after obtaining the opinion of the Law Committee, the Standing Committee of the Municipality of Broach passed a resolution No. 404 on 19th February, 1954 whereby the plaintiffs were granted licence in respect of stall No. 135 on payment of the necessary licence fees. While passing that resolution, the Municipality did consider the various points such as about defendant No. 2 having not appeared before it as also about their being a partnership firm carrying on business in that particular stall. That led the defendant No. 2 to file a Civil Suit No. 191 of 1954 in the Court of the Civil Judge, Senior Division, at Broach. In that suit, Miyabhai Jamalbhai, who is defendant No. 2 in the present suit under appeal, sought for a declaration that he was entitled to continue in possession of the suit stall No. 135 either as an occupant or tenant, or, in the alternative, as a licencee and for a permanent injunction restraining the defendant Municipality or its servants from interfering with his possession and enjoyment thereof. The alternative relief sought for by him, was for possession of the said stall, in case it was found that he was not in possession of the same. He had, besides, claimed compensation for a sum of Rs.500/- in the alternative. In the suit, the present plaintiffs were not joined as party defendants. The issues raised in that suit were as to whether the order of the defendant to allot the suit stall no. 135 in the name of Karimbhai Mohmedbhai was not valid as alleged, and secondly whether the plaintiff was entitled to declaration and injunction sought for. Both the issues were found in the affirmative in the sense that the resolution No. 404 dated 19th February 1954 passed by the Municipality of Broach, whereby the suit stall was given over to the plaintiffs was invalid and on that basis the declaration and the injunction sought for by him were given by the Court as per the judgment passed by Mr. K.M. Valand, Civil Judge, Senior Division, Broach on 3-2-1956. It may be mentioned here that the learned advocate appearing for the plaintiff in that suit had conceded before the Court that the declaration which the plaintiff has sought for against the defendant Municipality would have no binding effect on the plaintiffs of the present suit.

(3.) Going further it is an undisputed fact that Civil Suit No. 140 of 1954 for dissolution of their partnership was before the same Court and the partnership came to be dissolved with effect from 14-11-1955 as per the judgment, Ex. 113 in the suit. It appears that in that suit which came to be compromised between the parties, the dispute regarding the suit stall was kept open between the parties. We find such an observation made in the judgment Ex. 113 passed in Regular Civil Suit No. 191 of 1954. After the suit came to be decided on 3-9-1956 the plaintiffs filed the present suit for practically the same reliefs which defendant No. 2 had sought for in the earlier suit against the defendant-Municipality. The suit was resisted by the defendant No. 2 as also by the Borough Municipality of Broach defendant No. 1. On the issues raised by the learned Civil Judge who tried the suit, he found that the suit was not barred by limitation; that the suit was maintainable; that the plaintiffs, were granted licence and possession of stall No. 135; that the Municipality had no authority to grant such a licence and possession; that the plaintiffs were entitled to the declaration and injunction sought for since they had reasonable apprehension that the defendant No. 2 might disturb them in their possession. In the result, he passed the decree as set out in the final order passed in para 13 of the judgment.