SHANTABAI TUKARAM WALWALKAR Vs. TUKARAM VISHNU WARANG

JUDGEMENT

(1.) THIS appeal is filed by the original Defendant No. 2 against a decree passed by the learned Judge, City Civil Court, Bombay, in Suit No. 5503 of 1964, on 22-4-1981 granting mandatory injunction against the Defendant directing them to remove themselves from the suit premises consisting of shop being room No. 6 in dr. Kowli's House No. 172-B, 172-C, Lady Jamshedji Road, Mahim, Bombay-16 and for possession of the premises together with articles therein and to pay the compensation for wrongful occupation and for costs. The facts in brief are as below :-

(2.) ACCORDING to the plaintiff the suit shop stood in the name of his father late vishnu Vithoo Warang as tenant and continues to be even today. Sometime before 1956, the plaintiff had started business of dealing in provision and general stores in the name and style of "shri Ganesh General Stores". However, soon thereafter one person by name Raghunandan balram Dharadhar approached him sometime in the month of November 1956 and requested to permit him to conduct the business of the said shop on payment of Rs. 75/- per month by way of royalty for a period of six years commencing from 1-12-1956. The plaintiff agreed with the same and Dharadhar deposited Rs. 500/- with the plaintiff in terms of the said agreement and Dharadhar was placed in possession of the premises for conducting the business from 1-12-3956.

(3.) ACCORDING to the plaintiff, Defendant No. 1 was attending the business on behalf of Dharadhar. However, agreement was between the plaintiff and Dharadhar and Dharadhar was paying royalty to the plaintiff. As the agreement expired on 5-12-1962, plaintiff called upon Dharadhar to hand over possession of the business and the premises. Dharadhar neglected and failed to do so and therefore, the plaintiff filed suit for ejectment being Application No. 535/e of 1963 in the Court of Small causes. The suit was decreed on 6-9-1963. However, even after the decree dharaddhar did not hand over possession and the plaintiff started execution proceedings on 14-10-1963. The present Defendant obstructed to the execution of the decree. The plaintiff therefore started obstructionist proceedings and notices bearing nos. 733 and 766 of 1963 were issued against the Defendant. However, obstructionist proceedings came to be dismissed by the Small Causes Court on 31-1-1964. Defendant No. 2 Shantabai is wife of Defendant No. 1 Tukaram and Defendant nos. 3 and 4 are their daughters. Defendant No. 1 was employed by dharadhar and was for all practical purpose his servant or employee. Therefore, the Defendants have no independent right in the suit premises. They have no right to continue in possession and that they have no right title or interest in the suit premises independently of Dharadhar and are liable to hand over possession in terms of decree of ejectment passed against Dharadhar. According to the plaintiff in the obstructionist proceedings, the Defendants claimed that the plaintiff has sold all the furniture and other articles to Defendant No. 1 for Rs. 500/- in november 1956 and had subject the premises to Defendant No. I from December 1956 which the plaintiff had denied in the said proceedings and since the plaintiff's contention was not accepted, he has filed the present suit under Order 21 Rule 103 of the Civil Procedure Code.