JAI NARAIN Vs. SYED ALI MURTAZA

JUDGEMENT

(1.) THE defendant is the appellant in this appeal which relates to a suit for injunction and accounts. The plaintiff in the action took in lease a piece of land in Mohalla Sabzibagh of the Patna town from the City Municipality for the purpose of installing a petrol pump and erecting a shop for motor accessories. The lease was under a registered document dated 29th March 1941, for a term of five years with option for renewal for a further period of five years. After obtaining the lease, the plaintiff put up a temporary shed on the site and got a petrol pump installed, and he ran the business under the name and style of Ali & Sons. Finding some difficulties in carrying on the business, the plaintiff on 28th August 1945, entered into an agreement with the defendant. The terms of the agreement have assumed some importance in the case and may have to be referred to in some detail at a later stage in the judgment. For the present it may be sufficient to observe that the purport of the agreement was to transfer the entire management of the shop to the defendant, and the plaintiff in consideration thereof was entitled to the payment of a monthly premium of Rs. 20 only with effect from September 1945. The defendant in his turn undertook to run the business in its old name with the option to get the petrol pump transferred to his own name. By virtue of the agreement the defendant was duly let into occupation and possession of the land, and in course of the year it appears that the Standard Vacuum Oil Company transferred the lease of the petrol pump to the defendant. The lease granted by the Municipality to the plaintiff expired in March 1946, and thereafter the defendant applied to the Municipality for grant of the lease to him and changed the original name of the business. The plaintiff states that in view of this conduct of the defendant he served a notice on 9th September 1947. terminating the agreement and asking the defendant to quit the land and the business by 30th September 1947. The defendant, however, did not vacate the premises. The plaintiff then instituted a suit in the Court of Small Causes at Patna being S. C. C. Suit No. 109/99 of 1947 for recovery of arrears of premium from May 1946 to September 1947. In that suit, it is alleged, the defendant pleaded, inter alia, that the plaintiff had no title to the lease given by the Municipality after the expiry of the term of five years mentioned therein. The S. C. C. suit was decreed on 16 -9 -1948, and in revision the decision of the learned Judge was affirmed by this Court on 24 -3 -1949. The plaintiff in the meantime had filed the present suit on 27 -2 -1948, urging that the lease in favour of the plaintiff granted by the Municipality continued to operate and the defendant having repudiated the plaintiff's title had forfeited his right under the agreement dated 28 -8 -1945, to remain on the land. The plaintiff accordingly prayed for permanent injunction restraining the defendant from going near the site or working the petrol pump or having any concern with the premises. There was a further prayer for accounting and for a decree in favour of the plaintiff in respect of any sum found payable to him from the defendant.

(2.) THE defence to the action substantially was that the defendant had been inducted on the site by the plaintiff as a sub -lease subject to the payment of Rs. 20 only to the latter, and that the agreement in question was not merely to transfer the right of management with respect to the concern. It was further urged that the plaintiff's lease having expired and no fresh lease having been granted to him, the suit at the instance of the plaintiff was not maintainable he having no title to the property and that no case of forfeiture had at all been made out. The defendant further averred that the present suit was barred under O. 2, R. 2, Civil P. C.

(3.) THE lower appellate Court also held that the learned Munsif was justified in coming to the conclusion that the plaintiff's lease had not come to an end and the plaintiff was entitled to sue. On the question whether under the terms of the agreement dated 28 -8 -1945, only the right to manage the business had been transferred, the learned Subordinate Judge observed that the appellant had accepted the position that the document created a sub -lease, and that, therefore, it was unnecessary to enter into a further discussion of the matter. He, however, appears to have also found in concurrence with the learned Munsif that