1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 151 OF 1993 1. Shivraj Maharudrappa Wadje, Age 47 yrs., Occu. Business, 2. Umakant Shivraj Wadje, Age 28 yrs., Occu. Business, Both residents of Udgir, Dist. Latur ....Appellants. Versus 1. Ramchandra Venkatrao Kapse (Deleted vide Court's order dated 4.12.1996) 2. Mulshankar Ramchandra Kapse, Age 50 yrs., Occu. Agriculture & Service, R/o. Nalgir, Tal. Udgir, Dist. Latur. ....Respondents. Shri. Chaitanya Dharurkar Advocate holding for Shri. S.V. Chillarge, Advocate for the appellants. Shri. V.C. Solshe, Advocate for the respondent No. 2. CORAM : R.M. BORDE, J. DATE : 3rd March, 2010 ORAL JUDGMENT : 1. This is an appeal presented by the original plaintiff raising exception to the concurrent judgments recorded by the Courts below. 2. The appellant (hereinafter referred to as 'plaintiff') instituted Regular Civil Suit No. 278/1982, claiming decree of perpetual injunction against the defendants, who are related to each other as father and son, 2 respectively. Plaintiff No. 2 is son of plaintiff No. 1. So also, defendant No. 2 is son of defendant No. 1. The plaintiffs contend that they are carrying on business of manufacturing furniture and are in actual possession of the suit shop and godown bearing Municipal Nos. 2-3-111 and 2-3-139 situated near Bharat Market, Gandhi Road at Udgir on the basis of lease agreement. It is the contention of the plaintiffs that the suit shop and godown were given to the defendants under the oral lease agreement since Diwali 1978. The agreed rent was settled at Rs. 3500/- per Diwali year. They further contend that initially an amount of Rs. 3500/- was tendered towards advance rent for the suit shop and godown on 9.6.1978 for the Diwali year 1978-79 and rent deed was got executed on tender of payment on 9.6.1978. The plaintiffs further contend that they were carrying on the business in the name and style as "Prakash Furniture Centre" since 1978 till Diwali 1981 and since Diwali 1981 they are running the business in the name and style as "S. Raj Concerns" and they claim to have paid rent to the tune of Rs. 6000/- for two years on 5.1.1982 and amount of Rs. 1,000/- towards repair expenses was adjusted in the amount of rent paid to the landlord. It is contended that the defendants caused obstruction to the possession of the plaintiffs over the suit premises in the year 1982. As such, they were constrained to file the suit. 3. The defendant No. 1 resisted the suit by filing written statement. The defendant No. 1 denied that defendant No. 2 is the member of joint family. He contends that the defendant No. 2 did not constitute joint 3 Hindu family and there is separation of share amongst them. It is denied by the defendant that the suit shop is let out by the defendants together in favour of plaintiffs in view of oral lease agreement arrived at during Diwali 1978. The another contention raised by the plaintiffs in the plaint has also been specifically denied by the defendant. It is contended by the defendant No. 1 that the suit shop having Municipal No. 2-3-111 was let out to one Malappa Sarsambe and Subhash Narwane of Udgir for carrying on business of furniture on 1.1.1978 and the rent is fixed at the rate of Rs. 8,151/- per annum. The rent deed was got executed from the persons named above by the defendant No. 1. It is their contention that during passage of time Malappa became ill and was unable to take part in business and as such, Subhash Narawane has taken his brother-in-law i.e. plaintiff No. 1 as a partner in business and continued the said business up to Diwali 1981. According to defendant No. 1, the original tenants of the shop were Malappa and Subhash and the plaintiff has no concern with the business. It is his further contention that the alleged possession of the plaintiffs over the suit shop is illegal and without any basis . The defendant No. 1, as such, prayed for dismissal of the suit. Defendant No. 2 has filed his written statement at Exh. 30 and has taken a similar stand as that of defendant No. 1. 4. On consideration of pleadings, the trial Court framed issues and after receiving evidence led by the parties, the trial Court recorded findings that the plaintiff has failed to establish his lawful possession over the suit shop and as such, held that he is disentitled to claim the 4 decree of perpetual injunction against the defendants. The trial Court, as a result of the findings recorded above, dismissed the suit presented by the plaintiffs vide judgment and decree dated 2.5.1987. The unsuccessful plaintiffs carried an appeal being Regular Civil Appeal No. 80/1987 which came to be heard and disposed of by the Additional District Judge, Latur , who was pleased to dismiss the appeal after considering the rival contentions by his judgment and decree dated 12th January 1993. The original plaintiff, thus, is raising exception to the concurrent judgments recorded by the Courts below. 5. The substantial questions of law that arises for consideration in the appeal were formulated at the time of admission on 5.4.1993 stated in ground No. 3 and 4 of the memorandum copy. Those are noted below :- (3) That the substantial question of law in the present case is as to whether both the Courts below were justified in refusing the relief of permanent injunction when it was observed that the issue regarding the status of the Appellants - Plaintiffs as tenant thereof is subjudice before the Rent Controller i.e. the Statutory forum under the Hyderabad Houses (Rent, Eviction and Lease) Control Act, 1954. (4) That the lower Appellate Court has committed an error apparent on the face of record thereby raising substantial question of law by deciding that the Appellants are not the tenants of the suit 5 property and thereby negativing the issue Nos. 1 and 2 and at the same time observing that the dispute of tenancy in respect of the suit premises is the bone of contention between the parties before the Rent Controller, this proceeding is still pending and as such Civil Court can not confer any right of tenancy on the Appellants since this question falls for determination within the limited jurisdiction of the Rent Controller. 6. I have heard the arguments advanced by the respective counsel for the parties. The plaintiffs have approached the Court with contentions that there was an oral agreement of tenancy between the plaintiffs and defendants. However, the plaintiffs have failed to establish their tenancy agreement with defendant No. 1. On appreciation of the evidence, it can very well be said that the plaintiffs have not established their tenancy agreement with defendant No. 1. On going through the reasons recorded by the Courts below, inference can very well be drawn that the plaintiffs are in possession of the suit premises. So far as the defence taken by the defendants in the written statement is concerned, the defendants have admitted the induction of the plaintiff in possession over the suit premises through one Subhash. It is further case of the plaintiffs that there was an agreement of lease with Subhash and Malappa. The plaintiff is brother-in-law of said Subhash and as per the contentions raised in the written statement, the plaintiff is inducted in possession over the suit premises by Subhash as his partner with whom he continued to run his business till Diwaly 1982. The relevant 6 contentions appearing in the written statement presented by the defendant No. 1 are reproduced as below :- "They then started furniture shop in the name and style "M/S. PRAKASH FURNITURE CENTRE," UDGIR but after two months, the said Mallappa fell ill and was unable to take acting part in the said business so he left the said business of furniture. Then the said Subhash (lessee) took his brother-in- law i.e. his real sisters husband, the plaintiff No. 1 as his partner and continued his above business. This business was running up to Diwali 1982. Later on the plaintiff came in possession of the suit shop No. 2-3-111 through the above Subhash and they started their new business in the name of S. RAJ & CONCERNS, the original tenant of this defendant have no concern whatsoever in respect of the new business of the plaintiffs. Thus, the plaintiffs are not the tenants of the defendant No. 1, the terms of agreement of lease have been expired on Diwali 1982. Thus, there possession over the suit shop is illegal and without any base." The defendants, thus, admit the induction of the plaintiff through the lessee Subhash "as his partner". Thus, it cannot be said that the induction of the plaintiff over the suit premises is forceful or as a trespasser. The induction of the plaintiff over the suit premises is as a "business partner of Subhash", the original lessee inducted by defendant No. 1. The Courts below have adopted the view that as the plaintiff has failed to establish his oral lease agreement with defendant No. 1, his 7 possession is not liable to be protected. The fact, however, remains that the plaintiff is in possession over the suit premises and the factum of his possession in whatever capacity has been admitted by defendants. 7. The counsel for the appellants places reliance on the judgment in the matter of Amarnath Nath Agarwalla Vs. Dillon Transport Agency, reported in 2007 (4) SCC 306. In the reported matter, the eviction of the respondent No. 8 was sought on the ground that his induction is through the other defendant as a sub-tenant. In the written statement presented by the tenant, the allegations of sub-tenancy were denied and it was submitted that they are not occupying the premises as the partner of the firm M/s. Dhillon Transport Agency. Considering the controversy raised in the matter, the Apex Court while answering the question, as to whether carrying on business by one of the partners of the firm which was originally tenant, amounting to subletting of premises by the original tenant, ruled that there was no subletting of premises and the possession of such partner being the possession of the tenant needs to be protected. In the instant matter, the contention of the defendants is that the induction of the plaintiff over the suit premises is in their capacity as a partner of the original lessee i.e. one Subhash. In this situation, the conclusion, therefore, cannot be drawn that the induction of the plaintiff over the suit premises is by any illegal mode or as in his capacity as a trespasser or that he is forceably occupying the premises. 8. The controversy involved in the matter need to be scrutinized in 8 view of certain further developments, a note of which is required to be taken. The appellant herein has presented a civil application bearing No. 2659/10, requesting the Court to take on record certified copies of certain Court proceedings which are in fact the plaints presented before the lower Court or Rent Controller. An application is presented by the respondents/original defendants herein to the Deputy Collector and Rent Controller, Udgir which has been registered, file No. 1984/RC/1. The application is for seeking eviction of the tenants. The appellants herein are impleaded as party to the petition. It is contended in the application before the Rent Controller that the appellants herein who are respondent Nos. 1 and 2 before the Rent Controller have been inducted as sub-tenants by the original lessee i.e. one Malappa and Subhash. Cognizance also needs to be taken of various civil suits presented by the respondent/original defendant before the Civil Court claiming recovery of rent. Copies of plaint in Regular Civil Suit Nos. 267/83, 77/92, 176/89, 15/2008 and 86/2005 are placed on record, wherein a similar stand has been taken by the defendants. The suits are presented seeking recovery of rent from the appellants herein. The original lessee i.e. Subhash is also impleaded as party to the recovery proceedings. The recovery of rent is sought against the appellants herein, defendants in the suit referred above, on the ground that their induction over the suit premises is in their capacity as sub-tenants by the original lessee. A reference is also required to be made to Regular Civil Suit No. 176/1989 presented by the respondents herein/original defendants claiming recovery of possession of suit shop. In the suit presented before the Civil Court defendant Nos. 1 9 and 2/appellants herein are described as sub-tenants of the original lessee i.e. Malappa and Subhash. In view of all these material placed on record, it can be very well said that the defendants landlords admit induction of the plaintiff over the suit premises as sub-tenant inducted by the original lessee Malappa and Subhash. In this view of the matter, it cannot be inferred that the induction of the plaintiff over the suit premises is either as a trespasser or that their induction is by any illegal mode. The defendants landlords has already taken steps for securing eviction of the appellants herein. Until the decision of the proceedings initiated by the landlords seeking eviction of the sub-tenants/appellants herein, their possession over the suit premises needs to be protected. 9. The counsel appearing for the respondent No. 2 has vehemently contended that there is no accrual of cause of action as there is no threat of eviction to the plaintiffs. The defendants in their written statements have denied the relationship with the plaintiffs and asserted their entitlement to evict the plaintiffs from suit premises. The plaintiffs have approached the Court seeking protection from unlawful eviction and in this premise, I am of the opinion that until the defendants secure the possession of the suit premises by observing the procedure prescribed by law, the possession of the plaintiffs/appellants herein need to be protected. 10. The counsel for the respondent seeks leave to place reliance on the judgment in the matter of Premji Ratansey Shah and others Vs. 10 Union of India and others, reported in (1994) 5 Supreme Court Cases 547. It is contended that the injunction is discretionary and equitable relief and the possession of trespasser or the person, who being an unlawful person, has gained unlawful possession should not be protected by granting injunction against a true owner. In the instant matter, even as per the contentions raised by the defendants, the induction of plaintiff/appellant herein over the suit premises is in their capacity as a partner of the original lessee Subash and the defendants landlords in tern in several proceedings presented before the Courts and tenancy authority have admitted the status of plaintiff (appellant herein) as a sub-tenant. In this view of the matter, reliance placed on above reported judgment is misplaced. Similar is the case to which reference is made by the counsel appearing for the respondent in the matter of S.V. Narasaiah and others Vs. P. Dharma Reddy and others, reported in A.I.R. 2002 ANDHRA PRADESH 95. The Andhra Pradesh High Court has taken a view that there cannot be any injunction against the true owner at the instance of person whose possession over the suit premises is unauthorized. In view of reasons recorded above and in view of the particular facts arising in the instant matter, the authorities cited at bar are distinguishable and has no application to the facts of the instant case. 11. In this view of the matter, for the reasons recorded above, I am of the view that the judgment and decree passed by the Courts below need to be quashed and set aside and the possession of the 11 appellants/original plaintiffs over the suit premises needs to be protected until the defendants take measures and secures proper orders from the competent authority by adopting procedure laid down under the Act. 12. Thus, the appeal is allowed. The judgment and decree passed by the Civil Judge, Junior Division, Udgir on 2.5.1987 in Regular Civil Suit No. 278/1982 and confirmed in Regular Civil Appeal No. 80/1987 passed by the Additional District Judge, Latur on 12th January 1993 are quashed and set aside. The defendants are restrained by an order of injunction from evicting the plaintiffs from suit premises or from causing any interference in their possession without adopting procedure prescribed by law for securing possession. In the facts and circumstances of the case, there shall be no order as to costs. [ R.M. BORDE, J. ] ssc/sa151.93