S.K. Mal Lodha, J. - (1.) This is appeal by defendant, proprietors of firm Gopi Kishan Salagram (Gopi Kishan Salagram, Tara Chand and Tikan Chand) against the judgment and decree dated October 3, 1967, passed by the learned District Judge, Jodhpur, by which he set aside the judgment and decree of the learned Civil Judge, Jodhpur, dated September 11, 1964. The learned District Judge has decreed the suit of the plaintiff-respondent No. 1 for permanent injunction restraining the Municipal Council, Jodhpur (defendant No. 1) and the defendant-appellants from evicting the plaintiff from the land (Chowkari) in dispute. Defendant No. 3 was Kedardas, who has been impleaded as respondent No. 2 in this appeal and defendant No. 1 has been impleaded as respondent No. 3.
(2.) Succinctly put the case of the plaintiff was that his deceased father Manraj took the land in dispute on lease from the Municipal Board, Jodhpur on a monthly rent for Rs. 3/9 annas on October, 4/3, 1944 and executed a rent-note (Ex. 1) and that the plaintiff's father Manraj was put into exclusive possession of the land, who occupied in it the capacity of a tenant during his life time. After the death of Manraj, the plaintiff remained in its peaceful possession and paid rent to the Municipal Board upto June 30, 1962. The case of the plaintiff further is that thereafter, the Municipal Board did not accept the rent from him and, therefore, he sent a sum of Rs. 21/56 P. on September 24, 1962 by Money Order but the Money Order was not accepted. The land in dispute was leased out to defendant No. 2 appellant on July 4, 1962 on a monthly rent for Rs. 80/- by the administrator of the Municipal Board. The rent was made payable from November 1, 1961. In these circumstances, it was proved by the plaintiff that the Municipal Board and defendant No. 2 be restrained from disturbing his long and peaceful possession over the land in question.
(3.) Defendant No. 1 filed a written statement on December 7, 1962. It was pleaded that the land in dispute was allotted to the father of the plaintiff as a Licencee and that the relationship of the landlord and tenant never existed between the plaintiff's father and the Municipal Board. Defendant No. 1 case further was that it had every right to revoke the licence at any time and that the possession of the land in dispute had already been delivered to Salagram and Tara Chand (two proprietors of defendant No. 2's firm) by the Board in support of this, it relied on the application of the plaintiff dated February 29, 1962. The defendant-appellants filed a joint written statement. It was alleged by them that the plaintiff and defendant No. 3 had sold their goodwill of their business for Rs. 2,100/- to them and that had already transferred the possession of the land in dispute. The case of the defendant-appellants was that after delivering the possession of the land in dispute the plaintiff had dishonestly tried to repudiate the contract and submitted a petition by way of objection to the Administrator, Municipal Board with an ulterior objection so that the Municipal Board may not grant fresh lease of the land to them. These defendants supported the stand of the Municipal Board that the plaintiff's father was a mere license. Defendant No. 3 Kedardas filed a separate written-statement on April 27, 1963. He admitted in the written statement that he had transferred the goodwill of the business and the possession of the land in dispute to the proprietors of defendant No. 2 and that the land in dispute was taken by the plaintiff's father for a joint family business on October 1, 1944. He asserted that he, being a member of the joint Hindu Undivided family, was in joint possession of the land in dispute along with the plaintiff. The learned Civil Judge framed issues on April 8, 1963 and an additional issue was framed on May 14, 1963. The learned Civil Judge recorded evidence of the parties and decided issue Nos. 1 to 4 and 6 and 8 against and issue No. 5 was decided against the defendant. By this judgment dated September 11, 1964, he dismissed the plaintiff's suit.;