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TMI Blog1971 (3) TMI 125X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 ₹ 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 ₹ 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 Zai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 any 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. Gen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sers 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 gala No. 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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