DEBAPRASAD KORURI Vs. HIRALAL SHAW

JUDGEMENT

(1.) Their is an appeal by the plaintiffs in respect of a wall-almirah with adjoining open space in premises No. 84/34, Bepin Behari Ganguli Street, P.S. Muchipara, Calcutta, which is popularly known as Bowbazar Market.

(2.) The respondent No. 1, Hiralal Shah, was in possession of the Wall- almirah since about 1947 on payment of daily fee, which was at first 0-50p., and which was subsequently enhanced to 0-75p., per diem. The wall-almirah is used for selling spices. Hiralal, the respondent No. 1 (the defendant No. 1 in the suit) filed a suit, being Title Suit No. 844 of 1969 in the Tenth Bench of, the City Civil Court, Calcutta, against the respondent No. 2, Gobinda Shaw (the defendant No. 2 in the suit) for recovery of possession of the spices-shop on declaration of his title thereto and for a preliminary decree against Gobinda for rendition of accounts since 1968. The allegation in the plaint of that suit, by Hiralal was that Gabinda was previously his Karmachari and that, due to his illness in 1960, Gobinda was looking after the spices-shop on the basis of an arrangement that Gobinda would pay Hiralal 10 an nas of the profits and would himself take his remuneration at the rate of 6 an nas of the profits. It was alleged in the plaint of that suit that though Gobinda rendered accounts to Hiralal upto the end of 1967, no accounts were rendered to Hiralal since 1968 and as such, that suit, being Title Suit No. 844 of 1969, was filed by Hiralal against Gobinda, praying for the aforesaid reliefs. That suit was decreed on contest on 29.1.71. Gobinda preferred an appeal, being First Appeal No. 122 of 1971, in this Court. The appeal was dismissed on 6.3.73. Thereafter, there was Letters Patent Appeal No. 73 of 1973, in this Court, which was also dismissed on 21.1.75. Before the dismissal of the Letters Patent appeal, Hiralal had filed Title Execution Case No. 42 of 1973 in the City Civil Court, Calcutta, for executing the decree passed in Title Suit No. 844 of 1969 against Gobinda. During the pendency of that execution case, the Letters Patent appeal was dismissed. Gobinda had filed a Misc. case, being Misc. case No. 370 of 1975, under section 47 of the Code of Civil Procedure in that Title Execution Case No. 42 of 1973 and obtained a stay order on 25.4.75, which was subsequently extended till the disposal of the misc. case, which was ultimately dismissed on 3.1.76. The respondent No. 1 filed misc. case under Order 21 Rule 97 C.P.C. for police help for executing the decree passed in Title Suit No. 844 of 1969 against Gobinda. One Ramdeo Poddar the respondent No. 3, that filed a suit against Hiralal on showing the present plaintiffs as defendants No. 3 and 4 in 1976. That suit was numbered as Title Suit No. 2043 of 1976 in the Court of the learned Judge, Eighth Bench, City; Civil Court, Calcutta. The allegation in that Title Suit No. 2043 of 1976 by Ramdeo was that Ramdeo was a licensee in respect of the spices-shop under the plaintiffs-appellants on payment of licence-fee therefor. On 16-12-77, a petition was filed in that suit on behalf of Ramdeo Poddar for not proceeding with the suit. It was alleged in that petition that Ramdeo was never in possession of the spices-shop and that the suit was filed at the request of the respondent No. 2, Gobinda. On the basis of that petition dated 16-12-77, that Title Suit No. 2043 of 1976 was dismissed for non-prosecution on 16-12-77.

(3.) In the background of the aforesaid facts, the plaintiffs filed Title Suit No. 123 of 1978 in the City Civil court, Calcutta, on 13-1-78 alleging that the respondent No. 1 Hiralal, was a licensee under them on payment of licence-fee at the rate of 0.75p., per diem in respect of the spices-shop (hereinafter referred to as the 'suit:-property' for the sake of convenience) and that by a notice dated 17-10-75,, the licence was revoked. By that notice the appellants demanded vacant possession by 30-10-75. On expiry of that date, the appellants took vacant possession of the suit-property and settled it with Ramdeo as a licensee on or about 1-11-75 at a licence-fee at the rate of 0.80p., per diem. Therafter, Ramdeo filed the Title Suit No. 2043 of 1976 praying for declaration that he was a licensee under the appellants and for permanent injunction for restraining Hiralal. from interfering with or disturbing his peaceful possession of the suit-property. The petition filed on 16-12-77, alleging that Ramdeo was never in possession of the suit-property, was actually filed by Ramdeo in collusion with Hiralal. After the dismissal of that Title Suit No. 2(43 of 1976 on -16-12-77, the plaintiffs took again vacant and peaceful possession of the suit-property on and from 17-12-77 and were in possesstion of the property from that date. On alleging that the appellants were not bound by the decree obtained by Hiralal against Gobinda Title Suit No. 844 of 1969 as they were not parties to that suit, the appellants filed the Title Suit No. 123 of 1978 for permanent injunction for restraining Hiralal from interfering with' their peaceful possession of the suit-property on declaration that they were in lawful possession of the property and on further declaration that Hiralal had no bright, title and interest in the suit-property after revocation of licence by them