RAJENDRAPRASAD RAM NARESH SINGH Vs. KISHINCHAND MANGHANMAL

JUDGEMENT

(1.) By this petition filed under Article 227 of the Constitution of India, the Petitioner challenges the Order dated 6th August, 1982 passed by the Division Bench of the Court of Small Causes at Bombay in Appeal No.498 of 1980. That Appeal was filed by the present Petitioner challenging the Order dated 14th August 1980 passed by the Judge, Small Causes Court at Bombay in R.A. Decl. Suit No.1786 of 1966. That suit was filed by the Petitioner stating therein that the temporary structure bearing House No.152, Degrami Road, Kurla, Bombay, belonged to Defendant No.3 - Akbar. It was in possession of the Defendant No.2 - Jadunathsingh as a tenant and he was carrying on the business of milk and its products in the suit premises. According to the Petitioner, on 11th November 1954 Defendant No.2 assigned the running business to the Petitioner and since then the Petitioner has been carrying on the said business there. It is alleged that one Khemchand obtained a money decree in the BCCC Suit No.3666 of 1993 on 9th January, 1964 against Defendant No.2 and in execution of the said decree put the running business of Defendant No.2 to an auction sale. The said auction sale was confirmed in the name of Defendant No.1 - Kishinchand on 8th April, 1965. Thereafter, Kishinchand i.e. Defendant No.1 took out warrant of possession. The Plaintiff who is the assignee of the tenancy rights, obstructed the execution by Defendant No.1. Defendant No.1, therefore, took out a Chamber Summons to remove the obstruction. In those proceedings, the Executing Court directed the Plaintiff to file a regular civil suit for vindication of his rights. The Plaintiff, therefore, filed this suit for a declaration that the assignment of the tenancy rights in his favour by Defendant No.2 is valid. The suit came to be dismissed by the trial Court by its order dated 21st December, 1974. Appeal No.44 of 1975 filed by the Plaintiff against the Order of the trial Court in Suit No. 1786 of 1966 was also dismissed by the Appellate Court by its order dated 16th February, 1979. By the Judgment dated 18th February 1980 in Writ Petition No.723 of 1979 passed by this Court, the issue whether the deed of assignment dated 11th November 1954 was invalid on account of the operation of Section 53 of the Transfer of Property Act was remitted back by this Court to the trial Court for its decision. The trial Court, by its Judgment dated 14th August 1982 held that the assignment deed dated 11th November 1954 was hit by the provisions of Section 53 of the Transfer of Property Act and dismissed the suit again. An appeal filed by the Plaintiff against the Order of the trial Court dated 14th August, 1980 was again dismissed by the Appellate Court by its Judgment dated 6th August, 1982 in Appeal No.498 of 1980. Thus, in the present writ petition what is challenged is the order of the Court's below holding that the assignment in favour of the Plaintiff was hit by the provisions of Section 53 of the Transfer of Property Act.

(2.) Both the Courts below have held that there is a direct connection between the execution of the decree passed by the Bombay City Civil Court in Suit No.3666 of 1993 in favour of the said Khemchand and the deed of assignment. The learned counsel appearing for the Petitioner was not in a position to point out any manifest error of law in the concurrent finding recorded by the Courts below. In the absence of any manifest error of law in the concurrent finding recorded by both the subordinate Courts, I would not be justified in interferring with the said concurrent finding in my jurisdiction under Article 227 of the Constitution of India.

(3.) In the result, therefore, the petition fails and is dismissed. Rule discharged with no order as to costs.