MILAP CHANDRA, J. - (1.) THIS second appeal has been filed by the respon dent-tenant against the judgment & decree of the learned Additional District Judge No. 2, Jodhpur dated November 26, 1988 by which he has dismissed his appeal and confirmed the judgment of the Additional Munsif No. 1, Jodhpur dated Feb. 16,1985, decreeing the suit for the recovery of mesne profits and ejectment against him in respect of the shop No. 6 situated at Pal Road, Jodhpur.
(2.) SHRI H. C. Jain and SHRI S. C. Maloo, Advocates filed caveat on behalf of the plaintiff-respondent. On the joint request of the learned counsel for the parties, it was ordered on February 2, 1989 that the case would be finally heard & decided at the admission stage. After the receipt of the record the case was listed on 11. 4. 89. The order-sheet of this date runs as under: - "11. 4. 89 Hon'ble Mr. Milap Chandra, J. Mr. A. L. Chopra for the appellant. Mr. H. C. Jain Mr. S. C. Maloo for the respondent. It is admitted case of the parties that presently the respondent Satya narain is carrying on the business under the name and style of Kohinoor Colour Lab. The case of the appellant is that this business is being done by the respondent in the adjoining shop No. 7. On the contrary, the case of the respondent is that he is not carrying on the said business on the shop No. 7 but he is carrying it in a room inside the house which has no direct door opening on the road. The learned counsel for both the parties request that a Commissioner may be appointed for verifying these facts and the appeal be decided against the party whose version is not found true. They further request that SHRI K. C. Jain, Additional Registrar (Judl.) may be appointed as a Commissioner for this purpose. SHRI K. C. Jain. Additional Registrar (Judicial) is appointed as a Commissioner to inspect the said shop No. 7 and room today and to verify the said facts. He will mention in his inspection report about the articles and documents found in the shop & the room. He will further note whether the documents found therein relate to the respondent or some other person. A copy of this order be immediately given to the Additional Registrar Sri K. C. Jain. Report will be filed by 13. 4 89. Sd/- Milap Chandra Jain. " In compliant with the above quoted order, the Additional Registrar (Judicial) submitted his report on 13. 4. 89. On April 17,1989, the appellant moved an application praying that the appeal be allowed and the suit for ejectment be dismissed with costs along with his affidavit. On 21. 4. 89, the respondent moved an application praying that the appeal of the appellant be dismissed with costs along with his affidavit and also the affidavits of Shantilal & Madanlal. The question for consideration is whether the business under the name and style of "kohinoor Colour Lab. " is being done in the shop No. 7 (adjacent to the shop in suit) or in a room in-side the house which has no direct door opening on the road. In view of the above-quoted statement of the learned counsel for the parties, this question is to be answered on the basis of the report of the Additional Registrar (Judicial) who inspected the site the same day in presence of the parties and their counsel. The Additional Registrar (Judicial) has made the following observations in his report: - A. IN RESPECT OF The SHOP NO. 7 (1) There was a sign board of "studio Image" on the shop. (2) Shantilal was found sitting in the shop and he disclosed that the business in it was being run by him. (3) One Shyam Bhati was found sitting in the shop and he disclosed that he had come to take his photo. (4) In one drawer of the counter, two printed envelopes of Kohinoor Colour Lab containing negative and positive photos were found. (5) In second drawer, blank printed envelopes of Studio Image, one file bearing title Studio Image and nine bills of Kohinoor Colour Lab. in the name of Studio Image were found.- (6) In third drawer of the counter, six printed envelopes of Spectrum Photo Colour Lab. Private Ltd. containing negative & positive photos were found. (7) In the drawer of the table, ten printed price list of Kohinoor Colour Lab. & one file containing the rent receipts issued by Mohanlal in the name of Shantilal from 15. 5. 82 to 2. 3. 89 were found. (8) On the stone-slab above the almirah, eleven letters and invitation cards in the name of Kohinoor Colour Lab. or Satyanarain (plaintiff), one visit-book of Kohinoor Colour Lab. maintained under the Rajasthan Shops & Commercial Establishment Act, 1958, five bank deposit receipts, four blank printed envelopes of Kohinoor Colour Lab printed card of Studio Image and a photo of plaintiff Satyanarain were found. (9) There is a door on the back side of the shop which opens in the room where plaintiff Satyanarain carries on his Colour Lab. B. IN RESPECT OF The ROOM SITUATED IN SIDE The HOUSE:- (1) He went to this room through the main gate (Pol) and gallary. (2) The key of the lock of this room was given to him (Sri K. C. Jain Additional Registrar) in the Court by Shri H. C. Jain, Advocate and lock of the room was opend with this key. (3) A big sign-board of Kohinoor Colour Lab. was found affixed on the Pol and a name plate of Kohinoor Colour Lab. was found fixed outside the said room. (4) A plate bearing the inscription "hypothecated to Punjab National Bank" was found affixed outside this room. (5) The door in the wall intervening the aforesaid shop No. 7 and this room was found bolted from in side the room. (6) A file of correspondence for obtaining telephone connection in the name of Kohinoor Colour Lab. , some personal papers of the plaintiff Satyanarain, blank printed letter-pad of Kohinoor Colour Lab. , duly framed certificate issued by Indian Photography Corporation Limited Marketing Education Centre in the name of the plaintiff Satyanarain and an almirah containing printed letter pad of Kohinoor Colour Lab , bounded printed forms for taking jobs, some personal diaries, receipts of the punjab National Bank regarding the deposits of money towards loan granted by it, two rubber stamps of Kehinoor Colour Lab. blank printed bill-book of M/s. Kohinoor Colour Lab. , and a file containing agreements/confirmation orders for video recording issued by Kohinoor Colour Lab. including confirmation order bearing signature of Shantilal of Studio Image were found. (7) On the right hand side of this room, there is another room wher-ein colour lab. machine, other consumable articles, printed blank envelopes of Kohinoor Colour Lab. bearing addresses and stamps, price list of Kohi-noor Colour Lab. , 100 blank printed envelopes of Kohinoor Colour Ltd. , 10-12 envelopes containing photos, a few invitation cards in the name of the plaintiff Satyanarain and a file containing the receipts of the payment of premium in respect of the joint policy of the plaintiff and his wife were found. (8) A wash basin is fitted in this room. One almirah, one table, few chains and one big watar container (Tub) were found in it. The appellant has stated in his application dated April 17, 1989 that during the dictation of the above-quoted order dated 11. 4. 89 the plaintiff-respondent wanted to leave the court room but he was stopped from doing so but after some time, he managed to send his cousins Madanlal & Shantilal who were then present in the Court room to the said shop No. 7 to the effect desired changes therein before the arrival of the Commissioner there. It has further been stated that the attention of the court was duly invited towards this happening. (Then & there, the learned counsel for the plaintiff-appellant was told to move an application but no such application was moved.) It has further been stated in the application that by the time Shri K. C. Jain (Commissioner) reached the shop. Shri Shantilal & Shri Madanlal managed to transfer some books & papers of Kohinoor Colour Lab. to the room which is behind the shop. There is no substance in the application. The Additional Register (Judicial) has clearly stated in his repot that the key of this room was given to him in the court room by the learned counsel for the plaintiff-respondent, the lock of the room was opened by this key and the door in the wall intarvening the shop No. 7 and this room was found bolted from inside. As such nothing could be placed in this room or in its connected room from outside unless the lock was first opened. If the respondent had managed to transfer papers and material from the shop No. 7, the aforesaid items mentioned in para No. 5 A (8) would not have been found in the shop No. 7.
(3.) THE defendant-appellant Surjeet Singh states in his affidavit dated 25. 11. 88, paper No. 28-29, of the file of the miscellaneous case No. IB/85 of the Court of Additional District Judge No. 2, Jodhpur that the Studio Image is of the plaintiff and it has been opened to save tax, machines purchased by the plaintiff with the help of the bank loans are fitted in the shop No. 7, he himself got his photos snapped in this shop and the developing and printing work is also done by plantiff in this very shop. THE defendant-appellant is occupying the adjacent shop Nol 6. He could easily get photos showing plaintiff Satyanarain doing & carrying on business in the shop No 7. No such photo has been filed by the defendant-appellant. He could also send any of his man for getting a bill or cash memo in the handwriting of the plaintiff while he was sitting and carrying on business there. No bill or cash memo of Studio Image in the handwriting of the plaintiff has been filed. It was not difficult to procure them if the plaintiff in fact was running the business of Studio Image. Thus the existence of "studio Image" is admitted by the defendant-appellant himself. His case is that it is owned by the plaintiff. On the contrary, the plaintiff's case is that it is owned by his cousin Shantilal. This fact was duly disclosed by the plaintiff Satyanarain in his cross-examination. It was also put in the cross-examination of the defendant-appellant Surjeet Singh D. W. 1 on 5. 7. 84. In the end of his cross-examination, the defendant disclosed that he had never been inside the house of the plaintiff Satyanarain. The plaintiff-respondent also stated in his reply dated 7. 12. 85 to the application of the defendant-appellant moved under Order 41 Rule 2. 7, C. P. C. that Shantilal carries on his business under the name and style of "studio Image" and he has no concern with this business. It has also been stated in it that he has purchased necessary equipments and machines for his photo colour lab. with the help of the bank loans and has placed them in a room of his residence which is not at all convenient for his business and customers cannot come there. The appellant has further stated in his application dated 21. 7. 88. moved before the Additional District Judge, Jodhpur that Shantilal who is cousin of the plaintiff-respondent has vacated the shop No. 7 in 1984-85 and has opened his shop in side Siwanchi Gate, Jodhpur. Shantilal has stated in his affidavit dated 22. 4. 89 that he is carrying on his business in shop No. 7 under the name and style of "studio Image", he has taken it on rent from Shri Mohanlal, the rent receipts issued by him were duly shown to the Additional Registrar (Judicial) on 11. 4. 89 and he deposited Rs. 30/- on 31. 3. 89 for the renewal of the licence under the Rajasthan Shops & Commercial Establishment Act, 1958 and the licence was renewed on 12. 4. 89 and their photostat copies are enclosed with the affidavit. He has also stated in it that for the last 7-8 years, he is getting colour films developed and printed from Spectrum Lab,, Kohinoor Colour Lab. & other Laboratories, the plaintiff is his cousin, he has business dealings with him also and he gets work of video recording from him. This supports the contention of the plaintiff-respondent that Shantilal carries on job business. From the mere fact that certain letters and invitation cards addressed to the plaintiff were found in the shop of "studio Image", it cannot be said that the business is being run by him therein. Admittedly, Shantilal was found in the shop at the time of the inspection by the Additional Registrar (Judicial ). He is the first cousin of the plaintiff. It is quite probable that the persons inviting might have given their invitation cards and the postman delivered his letters to Shantilal from the presence of bank receipts in the shop No. 7, it cannot be said that the business of photo colour lab is being carried on the suit shop No. 7. It is clear from the above quoted order dated 11. 4. 89 that the case of the defendant-appellant is that the plaintiff is carrying on his business under the name and style of Kohinoor Colour Lab. in the adjoining shop No. 7. It is not his case (defendant's case) that he (plaintiff) is carrying on his business in the shop No. 7 as well as in the said rooms. It is clear from the report of the Additional Registrar (Judicial) that the business is being done by the plaintiff-respondent in the said rooms. Thus the version of the plaintiff-respondent is true and not that of the defendant-appellant. As such the appeal deserves to be dismissed with costs. ;