RUSTOM A PHIROZEMAND Vs. ROSHAN BOMAN BOZARGI

JUDGEMENT

(1.) THE original defendant No. 3 is the present appellant. He was subsequently impleaded in the suit filed by the original plaintiff, the respondent No. 1 herein against the original defendant Nos. 1 and 2, respondent Nos. 2 and 3 herein. The suit was for administration of the estate of the deceased Boman Bozargi, who was the father of plaintiff and defendant No. 1 and the husband of defendant No. 2. The dispute in respect of the administration of the estate was amicably resolved by all the aforesaid three parties. The learned trial Judge had disposed of the suit in respect of the administration of estate as per the settlement between the parties on 19th February, 1997. The right and dispute in respect of the defendant No. 3 was left behind and the same has been decided in the aforesaid suit against the defendant No. 3, who was directed to hand over vacant and peaceful possession of the suit property i. e. canteen and open air restaurant at Bombay Hocky Association ground and the business thereof to the plaintiff and the defendant Nos. 1 and 2 (hereinafter referred to as the respondents) including the requisite licences within three months from the date of the judgment and order of the trial Court dated 4th August, 1997. Aggrieved by the said judgment and order the appellant has preferred this first appeal. The appellant continues to be in possession of the suit premises pursuant to the interim order passed by this Court in the first appeal.

(2.) SHRI Abhyankar, the learned Counsel for the appellant has fairly made a statement that his client would pay and hand over directly to the defendant No. 2 an amount of Rs. 2,02,500/- towards the arrears of royalty payable by the appellant to the defendant No. 1 on behalf of the respondents for the period from August 1997 to 31st January 2002 pursuant to the orders of the trial Court. The said amount shall be handed over within one week from today.

(3.) THE appellant is aggrieved by the impugned judgment and order passed by the trial Court and has challenged the findings recorded against him on various grounds. I am not recording here the facts averred by the plaintiff in the suit in respect of the administration of the estate of the deceased as the dispute does not survive any more having been settled amongst the legal heirs of the deceased. The only dispute which survives is in respect of the open air restaurant which is in possession of the defendant No. 3. According to the plaintiff, the defendant No. 3 was and is only a contractor or a conductor of the said restaurant and was and is not either a sub-lessee of a sub-tenant of the said premises. There is no dispute about the fact that the deceased was a lessee of the suit premises which belonged to the Bombay Hocky Association. The said canteen business was run by the deceased who, on account of his old age, appear to have entered into an agreement with the appellant-defendant No. 3 whereunder the said business of the canteen was handed over to the appellant on certain terms and conditions which were reduced in writing in the said agreement dated 1st February, 1978. The original agreement which was signed by the parties was in Pershian language and, therefore, the same was translated for being relied upon the same for determination of their respective rights arising from the said agreement. It is thus clear that there is no dispute about the existence of such an agreement between the deceased and the appellant.