H.H. SIR JIWANJIRAO SCINDIA Vs. MUZAMMIL KHURSHID

JUDGEMENT

(1.) THE plaintiffs in the plaint as originally filed sued for a declaration that the defendants were in occupation by leave and licence of a flat of which plaintiff No. 1 was a tenant and the licence had been validly terminated and the defendants were, therefore, in wrongful use of the flat and were trespassers. The consequential relief sought was that the defendants may be restrained from occupying or using the flat. There was also a prayer for a mandatory injunction directing them to remove themselves from the flat. In addition, compensation at the rate of Rs. 300 per month was sought for use of the flat from January 1, 1951. There was furniture belonging to plaintiff No. 1 in the flat and the plaintiffs also made a claim for that furniture and compensation for its use. The furniture has now been handed back to the plaintiffs.

(2.) IN view of the shape the case has assumed before me at a rather late stage, it is not necessary to refer in any detail to the pleadings with which the parties came to a hearing before me. Succinctly stated the case of the plaintiffs was that plaintiff No. 1 became a tenant of a ground floor flat in a building known as 'Sindoola', on Gamadia Road, off Peddar Road. The tenancy of the flat stood in the name of his camp controller. Furniture belonging to plaintiff No. 1 was lying in that flat. Sometime in the beginning of 1950 plaintiff No. 1 had allowed his friend, plaintiff No. 2 to use the flat as his guest. Plaintiff No. 2 thereafter allowed defendants Nos. 1 and 2 to live with him in the flat by leave and licence. Plaintiff No. 2 addressed a letter to defendant No. 1 determining that licence and possession of the flat was demanded. It was also stated in the plaint that the defendants did not pay any amount to the plaintiffs as and by way of compensation for the use of the flat or the furniture. It is common ground that the defendants have since 1951 continued in occupation of the flat.

(3.) IN para. 12 of the written statement, the defendants stated: Without prejudice to the submission herein, the defendants submit that the first plaintiff having treated the defendants as his tenants for the purpose of rent and the said plaintiff having reaped the fruits of the transaction by collection of the said rents the said plaintiff is not entitled for purposes of regaining possession now to treat the defendants as mere licencees. In other words the cause of action of the said plaintiff being founded on an illegality the suit is accordingly not maintainable.