1. This is an appeal on behalf of the original defendants 1 - A, 1 - B and 1 - C against the judgment and decree dated June 22, 1967, made by the Principal Judge of the City Civil Court declaring that the gala No. 10 mentioned in the plaint had been validly assigned to the plaintiff under the deed of assignment dated September, 19, 1958, and further declaring that these appellants were trespassers and not entitled to remain in possession of a portion of the above gala No. 10 and granting a decree in ejectment as against these appellants and further granting compensation at the rate of Rs. 20/- per month as from April 19, 1958, till delivery of possession and costs of the suit.
2. The plaintiff's case was that defendants 2 and 3 i.e., Chhotu Balu and Hansu Murat were joint tenants of the above gala No. 10. These two persons resided at and in a portion of the above gala and also carried on their business of gas welding in the gala. These two persons sold to the plaintiff under a deed of assignment dated April 19, 1958, their business of gas welding together with all stocks - in - trade, fixtures, furniture and goodwill thereof along with the tenancy rights of the business premises as incidental to the said running concern for the price of Rs. 2,500/-.
3. One Zainullah, the original defendant, was occupying a portion of this gala even prior to the date of the above assignment as licensee of Chhotu Balu and Hansu Murat. The plaintiff granted leave and licence and permission to Zainullah to continue in occupation of the portion already occupied by him in consideration of Rs. 20/- per month payable by Zainullah as licence fee to the plaintiff. In the correspondence that had taken place Zainullah falsely contended that the portion in his occupation had been obtained by him under a deed of assignment dated July 10, 1957, whereby a running business was sold as a going concern to Zainullah by Chhotu Balu. The plaintiff had duly revoked the licence granted by him to Zainullah and he accordingly claimed that Zainullah was a trespasser by reason of the termination of the licence. That was one part of the cause of action mentioned in the suit. The other part was that the assignment relied upon by Zainullah was illegal and in violation of law. For this reason, the plaintiff claimed that Zainullah was a trespasser. The plaintiff claimed compensation at the rate of Rs. 20/- per month aggregating to Rs. 120/- for the period April 19 to October 18, 1958. The plaintiff craved leave to file a further suit against Zainullah for damages for wrongful occupation from and after October 18, 1958. He accordingly, claimed declaration about the validity of his assignment and that Zainullah was a trespasser and for a decree in ejectment and for money decree for Rs. 120/- and a further sum of Rs. 1320/- and interest and costs.
4. Zainullah had filed his written statement dated February 2, 1959. Before the trial could take place, Zainullah died on October 15, 1965. fresh writs of summonses were issued and served on the present defendants 1 - A, 1 - B and 1 - C. They were the heirs and legal representatives of Zainullah. These defendants filed their own written statement dated June 22, 1967, and without prejudice to the pleas and defences raised in the written statement of Zainullah further pleaded that 'the deceased defendant was deemed to be the sub - tenant in respect of the suit premises and that these defendants are protected under the provisions of the Bombay Rent Act. * * * * * there had been no privity of contract between the plaintiff and the deceased defendant and the present defendants and that there is no cause of action against these defendants'. The pleas taken in the written statement of Zainullah which were adopted by the present defendants were as follows :-
5. That Chhotu Balu and Hansu Murat had executed a valid and legal agreement in favour of the plaintiff for sale of business of gas welding with tenancy rights was denied. The assignment was not registered and had been executed to defraud Zainullah of his rights in the portion of the gala occupied by him. The assignment did not create any right, title and interest in the tenancy rights. Zainullah was not occupying the suit portion of the gala as a licensee and in that connection the allegations of facts made in the plaint were denied. He denied any privity of contract with the plaintiff. He denied that the plaintiff had the ownership of and title to the gala No. 10. He denied that the plaintiff was entitled to eject him from the suit premises. He contended that the assignment in which he relied was a valid assignment and it was binding on the plaintiff. He denied that he was a trespasser. He denied that plaintiff's right to the reliefs claimed in the suit.
6. Hearing of the suit reached before the learned Judge below from June 22, 1967. Advocate Mr. Rajani then appeared for the present defendants and submitted draft issues. The learned Judge appears to have brushed aside the draft as not raising proper issues. He raised the following six issues :-
1. Whether there is nay privity of contract between the plaintiff and the original 1st defendant ?
2. Whether the original 1st defendant is the licensee of the plaintiff in respect of the suit premises as alleged ?
3. If the answer to issue No. 2 is in affirmative, whether defendants Nos. 1A, 1B and 1C are liable to hand over possession to the plaintiff ?
4. Whether the plaintiff is entitled to any compensation and/or damages as claimed ?
5. Whether the plaintiff is entitled to any relief If so, what ?
6. Generally ?
7. It may be at once be stated that it appears from the discussion contained in paragraph 3 of his judgment that during the hearing of the suit and whilst he was delivering his judgment, the learned Judge completely failed to notice that in the written statement filed by the present defendants the plea that Zainullah had become sub - tenant in respect of the suit premises and that accordingly the present defendants were protected under the provisions of the Bombay Rent Act had been raised. He did not formulate any issue in connection with the above plea. He indulged into discussion on the question of Zainullah having become sub - tenant of the suit premises on the footing that the question of sub - tenancy had been orally discussed by Mr. Rajani from the Bar. He observed : 'In the absence of any such plea having been made in the written statement (of Zainullah), I am unable to accept the argument of Mr. Rajani that Zainullah was a lawful sub - tenant by reason of the Ordinance promulgated under the Rent Act.' The learned Judge was in error in discussing and deciding this question without raising any issue in that connection in not referring to the written statement filed by the present defendants. The plea had been raised in the written statement of the present defendants and an issue in that connection was liable to be formulated.
8. Mr. Vyas for the plaintiff attempted to content that since a portion of the tenement consisting of gala No. 10 only had been in occupation of Zainullah and the defendants, it was patent that in law sub - tenancy could not exist. The argument was that sub - tenancies could only be created in respect of an entire tenement. As at present advised, I am not aware that such is the law but I do not find it necessary to decide that question at this stage. Mr. Vyas further submitted that the plea of sub - tenancy was not raised by Zainullah in his written statement. It was, therefore, not permissible for the present defendants to raise such a plea in their written statement. The submission was that legal representatives of Zainullah could not raise this new plea by their written statement. Now, it is quite patent that the declaration, the ejectment and the monetary claim for which decree was claimed in the suit were personal reliefs claimed against the present defendants. It is true that these defendants have been added in the suit in consequence of the death of Zainullah and as his heirs and legal representatives. Even so, it is not true that the reliefs claimed against them are only in the character of their being legal representatives. It requires to be emphasised and repeated that all the reliefs claimed in the suit are claimed personally as against these defendants. I have no doubt that these defendants were entitled to raise by their written statement pleas contrary to and inconsistent with case made by Zainullah in his written statement. It is well established law that defendants who are brought on the record as legal representatives of one of the defendants before any decree is passed in the suit must have a right to raise such pleas as they desire in defence to the reliefs claimed against them. The decree claimed against them must be personal. Possibly, where decree is not claimed against them personally and relief can only be granted to the extent of the estate come to their hands, there can be an argument that inconsistent defence may not be allowed to be raised. However, of this also I am not quite sure.
9. Now, it is abundantly clear that the learned Judge failed in his ordinary duty to frame an appropriate issue on this plea about sub - tenancy of the portion occupied by Zainullah and the defendants as raised in the written statement of these defendants.
10. As regards the question of licence and a contract having been made between Zainullah and the plaintiff for a licence and Zainullah being the licensee, the learned Judge proceeded to deliver his judgment by totally disregarding the oral evidence tendered on behalf of the parties. It is somewhat abnormal and extraordinary that the learned Judge proceeded to decide the question of existence of the alleged contract of licence without reference to the evidence tendered on behalf of the parties. The learned Judge has made findings in the affirmative on these questions in favour of the plaintiff by proceedings in a manner in which no Court of law should proceed. The findings made on these questions in the above manner are liable to be set aside in this appeal by my discussing the whole of the oral evidence tendered on behalf of the parties. I have, however, not thought it appropriate to do so, because, after formulating appropriate issues as arose for decision. I propose to restore the suit for a fresh hearing before the trial Court. This has become necessary because on the issues which arose the parties should be entitled to lead such further evidence as they desire. The issues framed can thus be finally disposed of only after the parties have the benefit of the opportunity of leading fresh evidence.
11. The learned Judge proceeded to make a finding that Zainullah must be a licensee and must have made a contract to remain in the suit premises as licensee merely on the ground that since the assignment on which Zainullah relied was not a valid and/or sufficient assignment and since the assignment on which the plaintiff relied was valid assignment. Zainullah could not be in occupation of the suit premises except as under a contract of licence made between the plaintiff and Zainullah. It is sufficient to state that the learned Judge has proceeded to decide this question in extremely improper manner and the method adopted by the learned Judge was such as the findings made by him must be set aside. I would have decided this question myself if I was not making an order of remand as already stated above. The learned Judge failed to formulate any issue as regards the defendants being trespassers on the suit premises. Even, so, he proceeded to make a finding that the defendants were trespassers. In spite of the fact that compensation was not claimed in the suit for occupation of the suit premises from and after October 18, 1958, and in that connection leave was claimed, the learned Judge made a decree in favour of the plaintiff for such compensation for the period ending with delivery of possession of the suit premises to the plaintiff. It is difficult to imagine how the learned Judge could proceed to pass such a decree when the claim was in fact not made in the plaint. For the simple reason that the claim was not made in the suit that decree is liable to be set aside.
12. At this stage, Mr. Vyas has intervened and applied that the plaintiff should be allowed to amend his plaint for making claims for further compensation. I have informed him that he must make such an application to the trial Court.
13. The issues which arose for decision in the suit were as follows :-
1. Whether under the assignment dated April 10, 1958, the plaintiff has in law become assignee of the right, title and interest of defendants Chhotu Balu and Hansu Murat as tenants of the gla No. 10 mentioned in the plaint ?
2. Whether the above deed of assignment dated April 10, 1958 is for the reasons alleged in the written statement of the defendants 1A to 1C and/or otherwise in law invalid and of no effect ?
3. Whether Zainullah was merely a licensee of the portion of gala No. 10 that was in occupation of Zainullah along with defendants 1A to 1C ?
4. Whether the defendants 1A to 1C are trespassers in the above portion of gala No. 10 ?
5. Whether under the assignment dated July 10, 1957 Zainullah during his lifetime and defendants 1A to 1C thereafter were entitled to continue in occupation of the above portion of gala No. 10?
6. Whether, having regard to the facts and circumstances of the case, Zainullah during his lifetime and thereafter the defendants are entitled to continue in occupation of the above portion as sub - tenants ?
7. Whether the plaintiff is entitled to the sum of Rs. 120/- claimed in prayer (e) of the plaint ?
8. Whether the plaintiff is entitled to a sum of Rs. 1320 as claimed in prayer (f) of the plaint ?
9. To what other reliefs is the plaintiff entitled ?
10. Generally ?
14. The issues as above which had properly arisen on the pleadings of the parties were not framed and have not been properly discussed and decided by the trial Court. The decree passed by the trial Court is set aside. The suit is remanded back to the trial Court with a direction that the trial Court will allow parties to lead such further evidence as they desire and decide the issues as formulated above in due course. The plaintiff must pay costs of this appeal. Since the suit is now of very old date, the trial court will give necessary directions and will dispose of the same before the end of July 1971.
15. Case remanded.