JUDGMENT
E.S. Da Silva, J.
1. Heard.
2. I have gone through the impugned judgments of appellate Court and trial Court as well and also considered the submissions of the learned Counsel. The petitioners/applicants’ claim for ownership and possession of the suit cafetaria has been disbelieved by the courts below after a fairly detailed scrutiny of the documentary evidence made available by the parties, namely, the fact that the same suggests that the registration certificate of the establishment is in the name of the respondent No. 5, the Municipal licence stands in the name of the respondent No. 1 and till the year 1984 the lease agreement of the premises continued in the name of the same respondent No. 1, while on the other hand, there is no document to show that the lease was at any time surrendered by the said respondent No. 1.
3. Further from their own pleadings it is seen that the applicant No. 1 admits having conducted the business of the restaurant from 1983 to 1989 on behalf of the respondent No. 1 and that only since 1989 she started doing it on her own account and or on her own behalf. The learned District Judge has rightly noted that applicants have nowhere stated as to how suddenly, i.e. from February 1989, the business which the applicant No. 1 clearly acknowledged in paragraph 5 of her affidavit as being conducted on behalf of the respondent No. 1 became their own so much so, no sale or gift was pleaded by them in this regard either in the plaint or in affidavit-in-rejoinder. The learned District Judge then observed that in the absence of any such pleadings the submission of their learned Counsel regarding a family arrangement under which the suit business was exclusively given to be owned and conducted by the applicants was unacceptable and therefore the applicants should be precluded from arguing such case and that if a family arrangement was made, then it should be an arrangement involving the whole family, i.e. all the children of the respondent No. 1. The finding are indeed correct and need not be disturbed at this stage while considering the aspect of a prima facie case which was required to be made out by the applicants to obtain the temporary relief sought for by them. On the question of irreparable loss and balance of convenience both the courts below were also, in my view, entirely justified in holding that in such circumstances the same was heavily tilting in respondent’s, favour and nothing thus can be faulted in this respect.
4. On the other hand, reliance placed by Shri Lotlikar, learned Counsel for the applicants, on the decisions of Rameshchandra Jamnadas & Co. v. Terenc Trading and another, , Shri Praful Nyalchand Sanghrajka v. Dr. Prakash V. Pradhan, of Bombay and another, , Apte Amalgamations Limited v. Hamidali Nasirali of Bombay and another, and Krishana Ram Mahale (dead) by his LRs. v. Shobha Venkat Rao, appears to be misplaced.
5. The case of Rameshchandra Jamnadas & Co. v. Terene Traders and another, , is clearly distinguishable on facts wherein a party had been granted a licence for user to run his business during particular hours of the day and this use was attempted to be obstructed by another similar licenses for user when after a break of about one year the applicant was trying to resume his trade in the same premises as before and the temporary injunction was refused by the trial Court on ground that he was not in khas possession of the premises. A Single Judge of this Court then held that a prayer for temporary injunction could not be rejected on the ground that the applicant was not in khas possession of the premises when he by establishing his user for a long period of 8 years, proved that claim was not frivolous or vexatious and it was a case of permissive use of a portion of a shop during the normal business hours and that too when the shop was to be opened and closed by the licensor in the morning and evening. Therefore the applicant could not expected to prove an exclusive possession of demarcated portion and the absentism would not alone and by itself amount to surrender of the licence. Hence the discretionary relief of injunction should have been granted to the applicant.
6. The rulings in Shri Praful Nyalchand Sanghrajka v. Dr. Prakash V. Pradhan of Bombay and another, and Apte Amalgamations Limited v. Hamidali Nasirali of Bombay and another, , deal with cases of settled and peaceful possession of premises in which the applicants have been lawfully inducted by the respondents and the Court held on facts that such possession deserves to be protected for temporary injunction because the suits raised serious questions for trial.
7. In Krishna Ram Mahale (dead) by his LRs. v. Shobha Venkat Rao, the Supreme Court observed that it is a well settled law in this country that where a person is in settled possession of property even on the assumption that he had no right to remain on the property he cannot be dispossessed by the owner of the property except by recourse to law.
8. As referred to above both the courts below have correctly arrived at the conclusion that the applicants’ possession was not a settled one because the same seems to be on behalf of the respondent No. 1. I see no perversity in these concurrent findings of fact based on the prima facie evidence available on record which findings should thus remain till such time they are unsettled after a full dress trial on the matter.
9. No case of illegality or error of jurisdiction committed by the learned District Judge has been made out by the applicants meriting interference on the part of this Court in the exercise of its revisional powers.