(1) The suit from which this second appeal arises was instituted by the plaintiff respondents Nos. 1 and 2 for a declaration that they are entitled to continue in possession of stall No. 135 situated in the municipal market at Broach and belonging to broach Borough Municipality - defendant No. 1 and that the defendant No.2 had no right or interest therein and for a permanent injunction restraining the defendants from causing any obstruction either by themselves or through their servants in the possession or enjoyment thereof.
(2) The Broach Borough Municipality owns certain stalls in the municipal market in the Katopore Bazar, Broach, and they have been given on licence to different merchants. The stall bearing No. 136 was at one time occupied by the plaintiffs and defendant No. 2. It also appears that they formed a partnership firm and were carrying on their business in that shop. On 23-1-1952, the plaintiffs gave an application Ex. 170 to the Municipality of Broach stating that they were in possession of stall No. 135 and that it was a partnership asset and that, therefore, they should be given a licence in respect of the same. They also alleged that the defendant no. 2 was acting contrary to their rights in the enjoyment of the said stall. After making some inquiries, defendant No. 1 found that Rs. 476 were being paid by way of licence fees from the partnership assets of the plaintiffs and the defendant no. 2, and consequently a notice was issued to defendant No. 2 to put in his way in respect of that application. The defendant No. 2, however, did not appear and after obtaining the opinion of the Law Committee, the Standing Committee of the Municipality of Broach passed a resolution No. 404 on 19th February, 1954 whereby the plaintiffs were granted licence in respect of stall No. 135 on payment of the necessary licence fees. While passing that resolution, the Municipality did consider the various points such as about defendant No. 2 having not appeared before it as also about their being a partnership firm carrying on business in that particular stall. That led the defendant No. 2 to file a Civil Suit No. 191 of 1954 in the Court of the Civil Judge, Senior Division, at Broach. In that suit, Miyabhai Jamalbhai, who is defendant No. 2 in the present suit under appeal, sought for a declaration that he was entitled to continue in possession of the suit stall No. 135 either as an occupant or tenant, or, in the alternative, as a licencee and for a permanent injunction restraining the defendant Municipality or its servants from interfering with his possession and enjoyment thereof. The alternative relief sought for by him, was for possession of the said stall, in case it was found that he was not in possession of the same. He had, besides, claimed compensation for a sum of Rs.500/- in the alternative. In the suit, the present plaintiffs were not joined as party defendants. The issues raised in that suit were as to whether the order of the defendant to allot the suit stall no. 135 in the name of Karimbhai Mohmedbhai was not valid as alleged, and secondly whether the plaintiff was entitled to declaration and injunction sought for. Both the issues were found in the affirmative in the sense that the resolution No. 404 dated 19th February 1954 passed by the Municipality of Broach, whereby the suit stall was given over to the plaintiffs was invalid and on that basis the declaration and the injunction sought for by him were given by the Court as per the judgment passed by Mr. K.M. Valand, Civil Judge, Senior Division, Broach on 3-2-1956. It may be mentioned here that the learned advocate appearing for the plaintiff in that suit had conceded before the Court that the declaration which the plaintiff has sought for against the defendant Municipality would have no binding effect on the plaintiffs of the present suit.
(3) Going further it is an undisputed fact that Civil Suit No. 140 of 1954 for dissolution of their partnership was before the same Court and the partnership came to be dissolved with effect from 14-11-1955 as per the judgment, Ex. 113 in the suit. It appears that in that suit which came to be compromised between the parties, the dispute regarding the suit stall was kept open between the parties. We find such an observation made in the judgment Ex. 113 passed in Regular Civil Suit No. 191 of 1954. After the suit came to be decided on 3-9-1956 the plaintiffs filed the present suit for practically the same reliefs which defendant No. 2 had sought for in the earlier suit against the defendant-Municipality. The suit was resisted by the defendant No. 2 as also by the Borough Municipality of Broach - defendant No. 1. On the issues raised by the learned Civil Judge who tried the suit, he found that the suit was not barred by limitation; that the suit was maintainable; that the plaintiffs, were granted licence and possession of stall No. 135; that the Municipality had no authority to grant such a licence and possession; that the plaintiffs were entitled to the declaration and injunction sought for since they had reasonable apprehension that the defendant No. 2 might disturb them in their possession. In the result, he passed the decree as set out in the final order passed in para 13 of the judgment.
(4) Against that decision passed on 18th September 1958 by Mr. B.M. Thorat, Civil Judge, Senior Division, Broach, the defendant No. 2 preferred a Regular Civil Appeal No. 77 of 1958, in the Court of the District Judge at Broach. The plaintiffs had also filed cross-objection as well as in respect of the reliefs granted against them. This appeal was heard by Mr. Y.D. Desai, the District Judge, Broach, and in respect of the issues raised by him in the appeal he came to the conclusion that the plaintiffs had been granted licence by the defendant-Municipality in respect of stall No. 135; that the defendant No. 1 had the authority to grant such a licence; that it was not invalid, that the suit was not barred by reason of the decision in Civil Suit No. 191 of 1954; that the plaintiffs were entitled to the declaration and injunction sought for against defendant No. 2, and that in the result, he passed the order dismissing the appeal subject to the modification as set out in the final order of the judgment passed on 9th march, 1959. The cross-objections were also dismissed. Feeling dissatisfied with that decision, the original defendant No. 2 has come in appeal. The plaintiffs have also filed their cross-objections.
(5) As already pointed out here above, having regard to the decision in Civil Suit No. 140 of 1954, a suit for dissolution of the partnership firm, between the plaintiffs and defendant No. 2 the dispute regarding the right to claim or occupy the stall No. 135 under the licence issued by the Borough Municipality of Broach was kept open. The only point that has been urged before this Court by Mr. Shastri, the learned advocate appearing for the appellant-defendant No. 2 is that having regard to section 11 of the Civil Procedure Code. In view of decision in regular Civil Suit No. 191 of 1954 between the defendant No. 2 and the Borough Municipality of Broach, the present suit would be barred since, according to him, it was a decision in respect of the same subject matter and between the same parties in the sense that the present plaintiffs derived their claim through the Borough Municipality of Broach which was the party-defendant in that suit. According to him, the plaintiffs claimed to remain in occupation of the said stall as licencees of the Borough Municipality of Broach and that way they can be said to be claiming under the Borough municipality of Broach. It was, besides, said that as licencees they had no right or interest in the property as such as that they were essential as necessary parties to the suit before they can be bound by the decision thereto. Whatever decision was arrived at in that suit, therefore, bound him as much as it bound the Borough Municipality of Broach. If, therefore, the resolution No.404 dated 19th February 1954 passed by the Standing Committee of the Borough Municipality of Broach under which the plaintiffs got the licence in respect of the stall No. 135, having been declared invalid by the competent Court in Regular Civil Suit No. 191 of 1954, the said decision would govern and bind the present plaintiffs and they are not, therefore, entitled to claim any relief in respect of the same subject matter in the subsequent suit. This contention was negatived by the learned District Judge saying that the plaintiffs were not parties in that earlier suit, and they cannot be said to be litigating under the same title in this suit, and therefore, the suit would not be barred by principle of res judicata contemplated under S. 11 of the Criminal Procedure Code. We also took into account the concession made by the learned advocate appearing for defendant No. 2, in that suit that the decision would not bind the plaintiffs of this suit. The short question, therefore, arises to be determined is whether the present suit is barred under Section 11 of the Civil Procedure Code, on the ground that the plaintiffs were not parties in the earlier suit No. 191 of 1954, as contended before me.
(6) Section 11 of the Criminal Procedure Code provides that 'no court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between the parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such a subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.' Now, it is plain that the point as to whether the Standing Committee's resolution No. 404 dated 19-2-54 was valid or not was directly at issue between Miyabhai Mohomadbhai and the Borough Municipality of Broach, in regular Civil Suit No.191 of 1954, and on the determination of the validity or otherwise of that resolution depended the granting of the relief such as a declaration and injunction sought for in that suit. Those reliefs were in terms granted on the basis of a clear finding that the said resolution relating to the suit stall No. 135 passed by the defendant-Municipality was invalid. The same issue has arisen for determination in the present suit. As to the competency of Court to decide such a point, there is no dispute whatever. The question is whether the plaintiffs who obtained the licence from the defendant No. 1 - Municipality can be said to be persons who claim under defendant No. 1, litigating under the same title, so as to be barred from getting relief in respect of the said resolution, contrary to the decision in the earlier suit. Now, it is true that the present plaintiffs were themselves not parties to that suit. Mr. Shastri, however, has pointed out that they had no independent existence, apart from defendant No. 1 - Municipality, and since they had no right or interest in the property, except that of mere licences of defendant No. 1 who owned the property and who had the authority to issue any such licence. He was not at all a necessary party to that suit, and any decision against the grantor of the licence viz., the Borough Municipality of Broach would bind the licencees, as much as it did the Municipality of Broach. The term `licence' is defined in S. 52 of the Indian Easements Act, 1882 as under:
'Where one person grants to another, or to a definite number of other persons, a right to do, or continue to do, in or upon the immovable property of the grantor, something which would in the absence of such right, be unlawful, and such right does not amount to an easement or as interest in the property, the right is called a licence.'
From this definition it would appear that any such right obtained from the grantor of a licence in respect of the property creates no interest or easement in the property. It does not transfer any interest in stall No. 135, and all that he holds under a licence on payment of certain amount, is that his occupation for the period of licence may not be unlawful, which otherwise it would. In other words, they had a permissive right and the licence was liable to be revoked at the will of the grantor. If therefore he had no interest or right in that property as in case of a lessee or a transferee, he would not be a necessary party to such a suit if their grantor - defendant No.1 - Municipality was a party to the suit. It is true that it would have been proper if they were joined as party-defendants since. There was an internal dispute between the plaintiffs and defendant No. 2 in respect of the same stall. But that cannot avail them to say that they were necessary parties to that suit and that any decision arrived at by the judgment in that previous suit would not bind them. The plaintiffs would thus be now litigating under the same title, and that again as persons claiming through the Municipality of Broach who was a party in that suit. The plaintiffs derive the claim to remain on property under a licence given by defendant No. 1 and if the resolution granting such licence is found by a competent court as invalid, it binds the present plaintiffs as well and they are debarred from litigating over the same again in Court, under S. 11 of the Criminal Procedure Code. It was urged by Mr. Sheth, the learned Advocate appearing for the respondents No. 1 and 2, that the licence was issued in his favour on payment of a certain sum and that he had, therefore, a right to occupy the said property. According to him, he had, thus a right or interest in the said property as long as the licence continued and in the absence of his being joined as a party-defendant in the earlier suit, he will not be bound by that decision. That contention cannot, however, prevail for the simple reason that he was nothing but a licencee and the amount that he was required to pay was in the nature of licence fee to the Borough Municipality of Broach and, at any rate, any such payment would not create interest in the said property as we find in the one created by taking the property on lease or the like. That contention cannot, therefore, help them in the present suit.
(7) It was also pointed out by Mr. Sheth that the learned advocate appearing for the defendant No. 2 in the earlier suit had conceded before that Court that the declaration of the plaintiff as sought for was against the defendant-Municipality and it would have no binding effect on those applicants, i.e. plaintiffs in the suit, and that, therefore, the declaration issued in favour of the plaintiffs in that suit cannot affect the right of the other partners in the said property. That no doubt appears to be true as observed by the learned District Judge, and that appears to have also weighed with him in holding that the decision in respect of issue No. 1 in that suit would not affect the rights of the present plaintiffs. What the Court is concerned with, is, as to whether the requirements of section 11 of the Criminal Procedure Code were fulfilled in order to arrive at a conclusion that the reliefs would be barred by the principles of res judicata contemplated thereunder and if those requirements are fulfilled, any such concession made by the advocate in that suit cannot help the plaintiffs to get over the position of law as it stands. It can amount to be an expression of opinion on the part of the learned advocate appearing for the plaintiff in that suit and that cannot help in escaping the legal effect that would arise out of the decision in respect of the issues raised in that particular suit. When, therefore, that very issue arises to be determined in the present suit, viz., as to whether the resolution No. 404 dated 19-2-1954 passed by the defendant Municipality under which the plaintiffs claimed the stall no. 135, was valid, there is no other alternative but to hold that the decision about the same being invalid stands, in absence of the same having been set aside by any Court of appeal or the like, and governs the parties. The same point cannot be re-agitated by the plaintiffs who were bound by the same by reason of their claiming the property through defendant No. 1 - the Borough Municipality of broach. That being so, the decision arrived at by the Courts here below cannot be sustained and the suit is liable to be dismissed.
(8) It appears essential to observe that after all, the licence issued by the defendants Municipality was for a period of one year and by now obviously the period has been over. It is possible and as said by Mr. Sheth, the same is being renewed from time to time. But that would not affect the decision I have arrived at as the present suit in respect of the same issue which came to be decided in the earlier suit would be barred by the principle of res judicata under S. 11 of the Criminal Procedure Code. It may be open, however, to the parties to see their own way with regard to the claim to occupy the said stall in view of the fact that in the suit for dissolution of partnership they have kept the question relating thereto open. At any rate, nothing can be done in the present suit, as the earlier decision in the suit would govern the parties, by which the licence given to them was found to be invalid, inasmuch as the resolution under which it was given, was invalid.
(9) In the result, the appeal is allowed and the decree passed by the Courts here below shall be set aside. The suit is dismissed. There shall be no order as to costs.
(10) Cross objections dismissed. No order as to costs.
(11) Appeal allowed.