GAJANAN ANANDRAO DAKE Vs. VISHWANATH AHILAJI THEMBEKAR

JUDGEMENT

(1.) This is plaintiffs appeal from order of the learned Judge of the City Civil Court directing their plaint to be returned to the proper Court under Order 7, Rule 10 of C.P.C.

(2.) Few facts that indicate the nature of the dispute may be noted. Originally the suit was filed by one Laxmibai widow of Anandrao Dake and her son Gajanan Anandrao Dake as plaintiffs Nos. 1 and 2. Their case is that one Anandrao, the husband of original plaintiff No. 1 and father of original plaintiff No. 2, owned a Hair Cutting Saloon at Bombay Central and the tenancy in respect of the premises stood in the name of Anandrao. After the death of Anandrao the entire business including the tenancy right was inherited by Laxmibai and her son Gajanan. The two original plaintiffs had executed a document of conducting in favour of one K. Ramdas for a period of six years some time in the year 1952. While that contract was still running both of them executed in assignment deed or sale deed dated 1st Mach, 1957 for a total consideration of Rs. 7,000/-. All the stock-in-trade of the running business along with the tenancy right, good will etc. were sought to be transferred under this document and possession was delivered to the defendants. From the date of alienation in their favour, the defendants began to recover the royalty for conducting the shop from K. Ramdas.

(3.) Some time at the end of 1960 the original plaintiff began to claim that the document of assignment was in fact a mere loan transaction and that the loan was actually repaid in the form of recoveries and royalty from K. Ramdas. The defendants then came out with a reply that they were the owners of the shop and the plaintiffs had nothing to do with it. When this claim was heard by them, the plaintiff took a search of the record and obtained a copy of the sale-deed and realised that they were defrauded by making them execute a document of sale. Hence, on 30th June, 1961 the present suit was filed.