Ferojuddin Mullick v. Hiren Roy Chowdhury — 1979 DIGILAW 182 (CAL)

JUDGMENT Chakrabarti, J. These two appeals arise out of the judgment and decree passed in Title Suit 854/68 and Title Suit 685/69 of the City Civil Court, Calcutta. The aforesaid suits were disposed of by a common judgment. The appeals have been heard analogously and this judgment shall govern both of them. 2. Title Suit No. 854/68 was instituted by Hiren Roy Chowdhury (hereinafter called the plaintiff) against Ferojuddin Mallik, his father Jehangir Mallik and one Sadik Mallik (hereinafter called defendants). The dispute relates to a stall being stall No. A/1 in the Maidan Market Corner, Calcutta. The stalls in the market are held by different persons on the basis of licenses granted by the P.W.D. of the Govt. of West Bengal. The plaintiff's case in short is as follows :- 3. Plaintiff is a licensee of stall No. A/1 by virtue of an agreement made between the Govt. and the plaintiff and has been in possession at all material times by payment of the license fees, regularly. As the plaintiff was unable to devote whole time attention to the business carried on in the said stall, he had engaged the defendant Ferojuddin Mallik to look after the business. By holding out prospects of securing credit facilities to improve the business, defendant No. 1 induced the plaintiff to sign a letter of surrender of the license in favour of defendant No. 1. The plaintiff in good faith and in a hurry signed the said letter in the greater interest of the business. Later on, plaintiff came to know that in view of the terms of agreement with the Govt. he had no right to transfer his rights or privileges under the agreement to any body or to permit anybody to use the said stall or part with possession thereof. On coming to know of such restrictions the plaintiff forthwith withdrew the letter of surrender. This enraged the defendants and they have been trying to cause mischief to the plaintiff in various ways with a view to oust him from the stall. Defendant No. 1, on the strength of the letter of surrender made attempts to be recognised as the licensee of the stall. The attempt having proved abortive, Defendant No. 1 and his men are trying to create disturbances to plaintiff's possession, cause waste to the assets of the plaintiff and injuriously affect the smooth running of the business. Defendant No. 1, on the strength of the letter of surrender made attempts to be recognised as the licensee of the stall. The attempt having proved abortive, Defendant No. 1 and his men are trying to create disturbances to plaintiff's possession, cause waste to the assets of the plaintiff and injuriously affect the smooth running of the business. On such allegations, the plaintiff asked for the followings reliefs namely (1) declaration that the letter of surrender dated 27.4.1968 in favour of defendant No. 1 is illegal invalid, void and not binding on the plaintiff and (2) permanent injunction restraining the defendants, their associates and agents from entering into the said stall No. A/1 or in any way interfering with the plaintiff's possession; 4. Defendants contested the suit by filing a joint written statement. Their case may be briefly stated thus :- 5. Plaintiff was a licensee in respect of stall No. A/1. He surrendered the license in favour of defendant No. 1 at the instance of defendant No. 2 on 27.4.1968 and made over possession of the stall. Defendant No. 2 has a stall in the said market. Defendant No. 1 was never an employee of the plaintiff. Defendant No. 1 never looked after the plaintiff's business as alleged. After the surrender by the plaintiff, defendant No. 2 has been carrying on business in readymade garments in the said stall in the name of his son the defendant No. 1. The allegation of inducing the plaintiff to sign the letter of surrender is false. The plaintiff was unable to carry on the business profitably and fell into arrears in the payment of license fees. Defendant No. 1 cleared the arrears amounting to Rs. 205.50 and further paid a sum of Rs. 5,500/- to the plaintiff as consideration for the surrender. On such payments being made, the plaintiff signed the letter of surrender and parted with possession of the stall. After the surrender the defendants approached the authorities for being recorded as the licensee and the matter is still under consideration. In such circumstances, the defendants prayed for dismissal of the suit. 6. This suit was instituted on 24.12.1968. On the very same day the plaintiff also filed an application for temporary injunction. After the surrender the defendants approached the authorities for being recorded as the licensee and the matter is still under consideration. In such circumstances, the defendants prayed for dismissal of the suit. 6. This suit was instituted on 24.12.1968. On the very same day the plaintiff also filed an application for temporary injunction. By an order dated 26.12.1968, notice was issued upon the defendants to show cause why the injunction prayed for should not be allowed and in the meantime an interim order of injunction was also issued, restraining the defendants from entering into the said stall. Later the plaintiff also complained of violation of the order of injunction which led to a misc. case under Order 39 Rule 2(3) of the Code of Civil Procedure. The injunction matter and the misc. case were eventually heard together and the interim injunction was made absolute upon a prima facie finding that the plaintiff was in possession. The defendants moved the High Court in revision against the said order and obtained a Rule which was however ultimately discharged. 7. In the meantime over an incident dated 28.12.1968, a criminal case was started and the keys of the stall were taken charge of by the Hastings P.S. In view of the ultimate order on the injunction matter, the Court directed the officer-in-charge of the Hastings P.S. on 6.10.1969 to hand over the keys to the plaintiff. 8. Title Suit 685/69 was filed by Jehangir and Ferojuddin (defendants 1 and 2 of Title Suit 854/68), on the very same day against Hiren (plaintiff of Title Suit 854/68), one Ukil Ahmed and the officer in charge of Hastings P.S. The Executive Engineer, P.W.D. City Division was also made a proforma defendant. The plaintiffs of this suit asked for a declaration that the business of readymade garments carried on in stall No. A/1 belongs to the plaintiffs for a further declaration that the withdrawal of the lector of surrender is fraudulent inoperative and cannot affect the plaintiff's possession of the stall, and for injunction. It would be sheer waste of time and merely repetitive to narrate the plaintiffs case in any details for the defence set up in the earlier suit No. 854/68 is virtually the foundation of the case made out in T.S. 685/69. Similarly the averments in the plaint of T.S. 854/68 constitute the defence set up in this suit. 9. It would be sheer waste of time and merely repetitive to narrate the plaintiffs case in any details for the defence set up in the earlier suit No. 854/68 is virtually the foundation of the case made out in T.S. 685/69. Similarly the averments in the plaint of T.S. 854/68 constitute the defence set up in this suit. 9. The two suits were tried together and disposed of by a common judgment. 10. The learned Judge found that the plaintiff Hiren had in fact written a letter of surrender in favour of Ferojuddin on 27.4.1968, but that in view of the clear restriction against surrender of transfer of possession as contained in the agreement made between Hiren and the Govt., the execution of such a letter of surrender in favour of Ferojuddin was beyond the competence of Hiren and therefore illegal. It was found that Hiren continued to be the recorded licensee in respect of the stall and that the application of Firojuddin for being recorded as the licensee has not yet been disposed of in his favour. At the trial the plaintiff resiled from his original case that he was induced by Ferojuddin to sign the letter of surrender by holding out false hopes of securing loans from the market, and made out a different case altogether by saying that he signed some blank papers which was converted into a letter of surrender. The learned Judge however believed neither of the cases. 11. As regards the plea of payment of Rs. 5,500/- to the plaintiff as consideration for the surrender, the learned Judge found the evidence to be insufficient and did not accept the plea. Possession, at the date of the Suit was found to be with the plaintiff Hiren. On such findings and in view of the fact that the defendants in their suit did not pray for recovery of possession, the learned Judge decreed the suit of the plaintiff (T.S. 854/68) and dismissed the other suit. Hence the present appeals. 12. Mr. Mukherjee appearing in support of these appeals contended that the findings of facts regarding actual possession and payment of money, were not supported by the evidence on record and were consequently erroneous. Hence the present appeals. 12. Mr. Mukherjee appearing in support of these appeals contended that the findings of facts regarding actual possession and payment of money, were not supported by the evidence on record and were consequently erroneous. He argued that even if the plaintiff could not lawfully surrender his license in favour of defendant No. 1 Ferojuddin, he having received the consideration for the surrender and having actually parted with possession could not found his claim on a plea that the document admittedly executed by him was not binding on him in the absence of further proof that the execution was the result of a fraudulent representation made by the defendants to which he became an innocent victim. 13. Before coming to an assessment of the evidence in regard to the question of fact, it would be convenient to bear in mind certain facts about which there is no dispute. Admittedly the recorded licensee in respect of the stall in dispute is the plaintiff Hiren. The father of the defendant Ferojuddin namely Jehangir Mallik is a licensee in respect of another stall in the same market. The Plaintiff did in fact execute a letter dated 27.4.68 purporting to surrender the stall in favour of Ferojuddin. The defendant approached the Estate Officer of the P.W.D. Govt. of West Bengal for allotment of the stall to him and the matter is still pending final decision of the authority. These facts are all admitted and it is further admitted that over an incident dated 28.12.1968, the shop in the stall was closed and the police took charge of the keys. The keys were ultimately made over to the plaintiff under Orders of the Court after the disposal of the injunction matter in favour of the plaintiff. 14. Keeping these facts in view let us now consider the evidence to find not which version of the case is true. The letter of surrender which the plaintiff now seeks to avoid and on which the defendants rely in support of their claim is Ext. C(1). Ext. C is a copy of the same letter. It is dated 27.4.1968 and is addressed to the Estate Officer P.W.D., Maidan Market Corner, Calcutta. The letter of surrender which the plaintiff now seeks to avoid and on which the defendants rely in support of their claim is Ext. C(1). Ext. C is a copy of the same letter. It is dated 27.4.1968 and is addressed to the Estate Officer P.W.D., Maidan Market Corner, Calcutta. It reads as follows :- "Dear Sir I hereby surrender my stall No. A/1 in the Maidan Market Corner, Calcutta-13, to Sri Ferojuddin Mallik who will clear all liabilities and licensee fees lying against me. This is for your kind information. Thanking you. Yours faithfully, Sd/- Hiren Roy Chowdhury, 27.4.68 Sd/- Hiren Roy Chowdhury 27.4.68 15. On 29.4.1968 Firojuddin Mullik applied to the Executive Engineer, City Division for allotment of the stall to him. The copy of the application, Ext. C(2), recites that Hiren Roy Chowdhury had already surrendered the stall to the applicant, that the applicant has cleared an the dues of Hiren upto April, 1968 and that the applicant has in fact been carrying on business of readymade garments in the said stall. Ext. A is a receipt showing payment of Rs. 205.50 being the license fee for stall No. A/1 for the period from July, 1967 to April, 1968. The receipt was produced by the defendant. Ext. A(1) and A(2) are two other receipts showing payment of fees for the stall for the months of May to July 1968. The receipts show that these payments were made through the defendant Firojuddin. 16. Since however formal allotment of the stall was not made in favour of the defendants, the receipts do not show his name as the licensee. But the fact remains that the payments were made through Firojuddin and that is a circumstance which is not altogether without any significance. The letter of surrender followed by an application by the defendant for allotment of the stall to him coupled with the evidence of payment of the arrear dues of the plaintiff as also the fees for some more months subsequent thereto all go to show prima facie that the plaintiff executed the letter of surrender with full awareness of what he was doing. But it appears that the plaintiff suddenly veered round and withdrew the letter of surrender on 6.5.1968. The plaintiff did so by issuing the letter Ext. 2(c) to the Executive Engineer requesting him to treat the letter of surrender as "cancelled". But it appears that the plaintiff suddenly veered round and withdrew the letter of surrender on 6.5.1968. The plaintiff did so by issuing the letter Ext. 2(c) to the Executive Engineer requesting him to treat the letter of surrender as "cancelled". The real trouble started thereafter. Now, the plaintiff's case in regard to the circumstances under which the letter was issued and subsequently withdrawn as set out in the plaint is that he himself being unable to devote full time attention to the business, had engaged Firojuddin to look after the business during his absence, that Firojuddin held out prospects of securing credit facilities from the market and thus induced the plaintiff to sign the letter dated 27.4.1968 which was prepared at the dictation of Firojuddin, and that the plaintiff in good faith and in a hurry signed the same. It is the further case of the plaintiff that when he later came to know that under the terms of the agreement he was not entitled to surrender the stall, he at once withdrew the same. The case thus made out in para 7 of the plaint clearly indicates that the plaintiff knew what the letter was about and that he signed it in good faith. The plaint further indicates that but for the restriction against surrender which he subsequently came to know, there would have been no necessity of withdrawing the letter. This case the plaintiff did not attempt to prove at the trial. Incidentally, it may be mentioned here that the suggestion that the letter was prepared at the dictation of Firojuddin seems preposterous. Firojuddin was a mere boy having no or little education whatsoever. The plaintiff Hiren on the other hand was a Bank employee find admittedly mere educated than Firojuddin. In such circumstances the plaintiff possibly felt that it might be difficult for him to make anybody believe the case made out in the plaint and he therefore came out with an entirely new case at the time of giving evidence. There he (P.W.2) says that he did not give any letter of surrender to Ferojuddin though he asked for it but that he merely gave a blank paper to him containing his signature. Subsequently when the Estate Officer enquired if he had given any letter of surrender he replied in the negative. There he (P.W.2) says that he did not give any letter of surrender to Ferojuddin though he asked for it but that he merely gave a blank paper to him containing his signature. Subsequently when the Estate Officer enquired if he had given any letter of surrender he replied in the negative. He goes on to say that the Estate Officer showed him the letter and then on his advice he issued the letter withdrawing the letter of surrender Ext. 2(C). He says in his evidence "I would never have voluntarily given any letter of surrender of my stall to Firojuddin Mallik as I know that under the agreement such surrender was not possible. "This evidence at once shows the utter falsity of the case made out in the plaint. The case made at the trial namely that he gave a signed blank paper to Firojuddin and the implied suggestion that the impugned letter might have been manufactured with the aid of the signed blank paper, though liable to be discarded fortnight as not having been pleaded, is on merits also proved to be untrue. The letter of surrender has been quoted hereinbefore and it shows that the plaintiff signed the letter twice one below the other. It is not the case of the plaintiff that he gave a blank paper containing two signatures on the same sheet. The authenticity of the signatures has not been challenged and the plaintiff has not offered any explanation why two signatures are there. Such explanation however comes from another witness namely D.W.2. He is an Assistant Engineer, in charge of Estate Officer Maidan Market Corner. His positive evidence is that on 29.4.1968, Jehangir Mallik and Hiren Roy Choudhury came to his office with the letter Ext. C 1. He enquired of Hiren whether the signature on the letter was his. Hiren affirmed his signature at which the witness asked Hiren to put another signature in his presence which he did. "This is how the second signature came to be there. Although the witness was cross-examined to some extent on this point, we feel no hesitation in accepting the evidence given by D.W.2. Firstly he has no reasons to take sides at least none was suggested. Secondly the evidence appears to be the only natural and reasonable explanation for the two signatures appearing in Ext. C 1. Although the witness was cross-examined to some extent on this point, we feel no hesitation in accepting the evidence given by D.W.2. Firstly he has no reasons to take sides at least none was suggested. Secondly the evidence appears to be the only natural and reasonable explanation for the two signatures appearing in Ext. C 1. Reading the evidence as a whole we find that the plaintiff knew the contents of the letter when he first signed it and reaffirmed it when he signed it again, before D.W.2. Therefore it follows that the case made out by the plaintiff during trial is untrue. The plaintiff made two distinct and contradictory cases one in the plaint and another in his evidence but succeeded in proving neither. 17. Next comes the question of payment of the arrear dues of the plaintiff by Firojuddin and payment of a lump sum of Rs. 5,500/- as consideration for the surrender. The positive case of the defendants in this regard is that plaintiff was unable to run the stall profitably, and therefore proposed to surrender the same on condition that the defendants cleared the arrear dues and paid a further sum as consideration. The plaintiff has denied the case. The receipt Ext. A shows that the plaintiff in fact was in arrears for a considerable period. The license fees for the period from July, 1967 to April, 1963 was paid in lump on 23.4.1968 by Ext. A. Defence case is that this amount was raid by them and that rents for some months thereafter were also paid by them. The synchronisation of the payment with the time of alleged negotiation for surrender may not be a matter of mere coincidence. On the other hand it lends some support to the defence case. It is significant to note that the receipt was produced by the defendant. Ext. A(1) and A(2) are two receipts granted by the Estate Officer (P.W.D.) dated 21.6.1968 and 4.7.1968 respectively showing payment of license fees for the months of May/June 1968 (Ext. A1) and July 1968 (Ext. A2). The receipts show that the payments were made by Ferojuddin. By Ext. A1 fees for two months that is Rs. 40/- was paid and Rs. 20/- was paid as per Ext. A2. A1) and July 1968 (Ext. A2). The receipts show that the payments were made by Ferojuddin. By Ext. A1 fees for two months that is Rs. 40/- was paid and Rs. 20/- was paid as per Ext. A2. Towards the concluding portion of cross-examination the plaintiff asserted that his account papers would show that he had himself paid the arrear license fees of Rs. 205/- and odd or the license fee of Rs. 40/- or Rs. 20/-. Defendants suggested that the accounts have been fabricated. The claim that the plaintiff paid the fees for the months of May to July, 1968 stands disproved by hill own letter dated 9.7.1968 addressed to the superintending Engineer, Presidency Circle (P.W.D.) Govt. of West Bengal (Ext. C6). There is clear admission in para 10 of the letter that Estate Officer had given possession of the stall to a third person. The third person referred to is obviously the defendant Ferojuddin. There is an indirect admission in para 18 that the license fees for May and June were paid by the said third person for he says therein that he does not ratify the payments so made by the third person and that he is still agreeable to pay the dues. Clearly therefore the plaintiff did not pay the fees for these months. If there are entries to the contrary in the accounts they must necessarily be incorrect. We find that the payments were made by Ferojuddin and it is not the plaintiff's case that he made the payments through Ferojuddin. True, that Ferojuddin is not shown as the licensee in the receipts The reason is that Ferojuddin was not till then recognised as the licensee by the appropriate authority. But the fact remains that the payment was made by Ferojuddin and the averment in para 18 of Ext. C6 clearly rules out any suggestion that the payment was made on behalf of the plaintiff. 18. As regards the defence plea of payment of Rs. 5,500/- there is no documentary evidence. Defendants have claimed in their evidence that this sum was paid at the residence of Jehangir Mallik on 27.4.1968 whereupon the letter of surrender was signed by the plaintiff. The plaintiff has of course denied having received any such sum. The learned Judge has disbelieved the story of payment because it is not bourne out or corroborated by any documentary or oral evidence. The plaintiff has of course denied having received any such sum. The learned Judge has disbelieved the story of payment because it is not bourne out or corroborated by any documentary or oral evidence. It has also been observed that when Jehangir was taking a letter of surrender there could be no reason why he would not insist on getting a receipt for the payment of Rs. 5,500/-. As we have indicated already the plaintiff could not straight away transfer the stall to Ferojuddin. The plaintiff, under the terms of the agreement could surrender the stall to the Govt. This position was known at least to the plaintiff (vide his evidence). Yet the parties wore prompted to take recourse to the surrender in view of a general circular issued some time ago. Ext. L is the circular dated 21.3.1968 issued by the Estate Officer. 19. The circular indicates that many persons in actual possession of the stalls and doing business therein were reluctant to pay the license fees unless they were recognised as licensees. In order to have a clear idea of the exact position in this regard and in order that such cases may be considered for necessary action, the circular invited such persons to apply within 30.4.1968 along with surrender letters. It is in the context of this circular that the surrender letter was issued on 27.4.1968 and on 29.4.1968 Ferojuddin applied, along with the letter of surrender, for being accepted as the licensee in actual possession. Though the circular contemplated regularisation of illegal occupation of stalls by persons other than the recorded licensees, the fact remains that such transfers are prohibited. Consequently the plaintiff could not possibly grant any receipt showing payment of Rs. 5, 500/- by the defendant as consideration for the surrender in favour of Ferojuddin. That would have landed him in a more vulnerable position. This may account for the absence of any receipt. Even though there is no receipt there are some indirect corroboration in the shape of assertions made in this regard even before the filing of the suits and not effectively denied. Ext. C 3 is a letter dated 30.11.1968 written by the defendants’ solicitors to the plaintiff. It is stated in this letter that the plaintiff issued the letter of surrender after a sum of Rs. 5,500/- was paid in cash. Ext. C 3 is a letter dated 30.11.1968 written by the defendants’ solicitors to the plaintiff. It is stated in this letter that the plaintiff issued the letter of surrender after a sum of Rs. 5,500/- was paid in cash. It was complained in that letter that the defendant Ferojuddin was in possession of the stall since 27.4.1968 but that of late the plaintiff had been trying to interfere with the peaceful enjoyment of the stall by Ferojuddin by withdrawing the letter of surrender and making false allegations against Ferojuddin. The letter cautioned the plaintiff that unless the plaintiff desisted from indulging in such activities in derogation of the arrangement made between the parties, the defendant would be constrained to take legal action against the plaintiff. Although there is a clear assertion in the letter about payment of Rs. 5,500/-, the plaintiff did not think it fit to deny the allegation. He did not care to reply to this letter either by himself or through any lawyer. Mr. Benerjee appearing for the plaintiff however contended on the authority of a decision reported in 38 C.W.N. p 344 (P.C.) that the failure of the plaintiff to reply to the letter is of no consequence because the plaintiff was under no obligation to reply. The facts of the case however were somewhat different. There the last of a series of payments on account of a mortgage debt, was accompanied by an intimation that the entire debt was then being paid off. The mortgagor did not protest by saying that a portion of the debt yet remained unpaid but subsequently filed a suit claiming a further amount under the mortgage by way of interest. The question arose whether the plaintiff was estopped from claiming such interest. It was held that no duty lay upon the mortgagee to claim further interest in reply to the intimation sent to him and that the omission to do so raised no estoppel disabling him from claiming the amount. In the instant suit before us the question is not one of estoppel. The matter might have been different if the defendants claimed refund of the sum of Rs. 5,500/- and in proof of such payment relied merely on the omission of the plaintiff to reply to the solicitor's letter. Here what the defendants want to show is that the letter of surrender was not executed for nothing. The matter might have been different if the defendants claimed refund of the sum of Rs. 5,500/- and in proof of such payment relied merely on the omission of the plaintiff to reply to the solicitor's letter. Here what the defendants want to show is that the letter of surrender was not executed for nothing. The fact that such a letter was issued is now an admitted fact. The plaintiff subsequently wanted to resile from that position by cancelling the surrender. In the context of such a situation, disputes arose between the parties when the solicitor's letter was sent to the plaintiff. In such circumstances, it cannot be said that the silence of the plaintiff was entirely inconsequential, upon a consideration of the entire evidence it seems to us that though the fact of payment of Rs. 5,500/- is not proved by clear and unimpeachable evidence, the story of payment seems quite probable. Be that as it may, the principal point for consideration in this suit is not whether such sum was paid but whether the plaintiff consciously and voluntarily executed the letter of surrender and parted with possession thereof, and if so with what effect. The question of payment is merely incidental to that question. 20. The next question of fact that remains for consideration is the fact of possession. Admittedly the recorded licensee is the plaintiff Hiren. There is no dispute as to possession at least up to the date when the letter of surrender was issued. Plaintiff's case in brief is that even after that date i.e. 27.4.1968 he continued in possession and carried on business in readymade garments. The defence case on the other hand is that the plaintiff made over possession to Ferojuddin on 27.4.1968 and that the business in readymade garments was actually carried on by the defendant and not by the plaintiff. It is the further case of the defendant that sometime after the surrender, the plaintiff in collusion with one Ukil Ahmed (defendant No. 2 in T.S. 685/69) cancelled the letter of surrender and started interfering with the possession of the defendants. The learned Judge in the trial Court has found possession with the plaintiff Hiren. The finding has been strenuously challenged by the learned Advocate for the defendant-appellants. This necessarily requires an assessment of the evidence both oral and documentary, regarding the question of possession. 21. The learned Judge in the trial Court has found possession with the plaintiff Hiren. The finding has been strenuously challenged by the learned Advocate for the defendant-appellants. This necessarily requires an assessment of the evidence both oral and documentary, regarding the question of possession. 21. P.W.1 is a cash Sarkar of the Maidan Market Corner. He says that formal allotment, of the stall has not been made in favour of Ferojuddin and that Hiren Roy Chowdhury is still now the recorded licensee. He has confessed that he has no personal knowledge regarding actual possession. He has however proved two letters, Exts. 2 and 2a. Ext. 2 is a letter dated 15.6.68 from the Estate Officer to Ukil Ahmed who was an applicant for allotment of stall A/1. Ext. 2a is dated 24.7.1968 and is in response to an application by plaintiff Hiren dated 9.7.1968. In this letter the Executive Engineer made a direct allegation that the plaintiff, in contravention of the agreement, has let out the stall to another person. The plaintiff was therefore asked to show cause why the license in favour of the plaintiff should not be terminated. These letters, it will be presently seen has some direct bearing to the question of actual possession. PW 2 is the plaintiff himself. He claims that he is the licensee that he regularly pays the license fees to the Govt. and that he is in actual possession of the stall carrying on business in readymade garments. His further evidence is that since he is a Bank employee he employed the defendant Ferojuddin to look after the business during his absence. His positive evidence in chief is that he at first carried on business in loose tea and coffee and thereafter started business in readymade garments. Defence suggestion on the other hand was that for a long time after the coffee business, the plaintiff did not personally carryon business in the stall. The allegation that Ferojuddin used to work as an employee of plaintiff Hiren has been stoutly denied. From the cross-examination it transpires that between the closure of the coffee business and the business in readymade garments, tailoring business was carried on in the stall. Plaintiff had to concede this position. He had further to concede that Ukil Ahmed who himself runs a tailoring establishment in stall no A/8, took an active part. From the cross-examination it transpires that between the closure of the coffee business and the business in readymade garments, tailoring business was carried on in the stall. Plaintiff had to concede this position. He had further to concede that Ukil Ahmed who himself runs a tailoring establishment in stall no A/8, took an active part. It may be recalled here that Ukil Ahmed is the constituted attorney of the plaintiff Hiren. Defence case is that Ukil Ahmed is trying to take the disputed stall also and it was at his intervention that the trouble started. This part of the defence case finds some corroboration from the fact that Ukil Ahmed had himself applied for allotment of the stall to him. This appears from Ext. 2 to which reference has been made hereinbefore. 22. Apart from that, the oral evidence is also significant. In cross examination plaintiff says that he has given the stall to Ukil Ahmed for carrying on tailoring business. He then says "after the coffee and tea business I had also tailoring business in the stall for which Ukil Ahmed supplied me two machines". Thereafter he states that he purchased the two sewing machines and gave them to Ukil Ahmed on condition of sharing in the profits. Subsequently he claims to have taken the machines home as the tailoring business was not sufficiently lucrative or profitable. He then says that since 1967 he has been doing business in readymade garments only but brought back the machines to the stall and has been mainly doing tailoring business now. The evidence shows that he has not a consistent case to put forth. P.W.3 Ukil Ahmed says that about 2½ years ago he became the constituted attorney of Hiren. He gave this evidence in February 1970. This takes us to early 1968. He says before 27.4.68 he never did any tailoring business in the stall of Hiren. Hiren as we have indicated already gave a different version. As regards the ownership of the sewing machines also they have contradicted each other. Considering the evidence on record it seems to us that plaintiff never carried on any tailoring business on his own in the stall. The business is being run by Ukil Ahmed and he made an application for official recognition by making a formal application in that behalf sometime in July, 1968. 23. Considering the evidence on record it seems to us that plaintiff never carried on any tailoring business on his own in the stall. The business is being run by Ukil Ahmed and he made an application for official recognition by making a formal application in that behalf sometime in July, 1968. 23. The story that before the tailoring business plaintiff carried on business of readymade garments can not also be believed. The plaintiff being a Bank employee could not himself run any business effectively in the stall. His case is that he employed Ferojuddin to look after the stall during his office hours. His evidence is that ‘Jehangir Mallik proposed to me that he would be able to secure credit facilities for my business if I would give him some blank papers containing my signatures and Ferojuddin allowed to sit in my business." If this was the proposal made by Jehangir plaintiff Hiren should have at once sensed something foul in the game. But the plaintiff wants us to believe that, he innocently believed him and fell into the trap. We have already found that the plaintiff, case with regard to the circumstances under which he signed the letter of surrender is not acceptable. But the evidence quoted above clearly shows that Ferojuddin was not actually working in the shop of the plaintiff prior to April 1968 for in that case Jehangir could never suggest that credit facilities could be secured only if Ferojuddin was allowed to sit in the shop. The suggestion of the plaintiff indicates that Ferojuddin was not actually sitting in the shop as stated by plaintiff earlier. Ferojuddin's possession whether on his own account or as an employee of plaintiff must have been after April 1968. And it not disputed that Ferojuddin did actually sit in the shop. This must necessarily be on his own account. 24. Apart from the oral evidence, there are some documentary evidence, to indicate that plaintiff was not actually in possession of the stall after April 1968. Ext. C(6) is a letter written by the plaintiff to the Executive Engineer on 9.7.1968. In this letter the plaintiff stated that initially he had a mind to shift his business from the maidan market corner to somewhere else, and issued a letter of surrender in favour of Ferojuddin Mullik. Then he changed his mind and cancelled his letter. Ext. C(6) is a letter written by the plaintiff to the Executive Engineer on 9.7.1968. In this letter the plaintiff stated that initially he had a mind to shift his business from the maidan market corner to somewhere else, and issued a letter of surrender in favour of Ferojuddin Mullik. Then he changed his mind and cancelled his letter. Then the letter recites some correspondence between him and the Department. Then in paragraph 10 it is complained that the Estate Officer has given possession of the stall to some third person and has thereby dispossessed the plaintiff. Ext. C(4) is another letter written by, the plaintiff to the Executive Engineer. The letter is dated 3.8.1968. This letter was written in reply to an allegation that the plaintiff had illegally made over possession to another person. In this letter also there are clear averments that some third person has been in occupation. Though the letter does not specify who that third person is, yet it is not difficult to find that out. We know that Ferojuddin had paid the license fees for some months and his name appears in the receipts. It is clear upon a reference to paragraph 10 of the letter that the third person is none other than the person in whose name the receipt was granted. Consequently it follows that the third person referred to is Ferojuddin. In the penultimate paragraph of the letter it is prayed that the third person be evicted and possession of the stall restored to the plaintiff. It is thus apparent that even on the plaintiffs own admission he was out of possession when he wrote those letters in July and August, 1968 respectively. His evidence now before the Court that he has all along been in possession since April 1968 must necessarily be false. 25. D.W.2 Sudhir Kumar Maity is an Assistant Engineer-in-charge of the market. His evidence on the point is that when the plaintiff and Jehangir Mallik came to his office on 29.4.68, the plaintiff gave out that key of the stall had already been made over to Ferojuddin. 26. D. Ws. 3 and 4 formal witness. D. W. 5 is a vendor of readymade garments in Howrah Hat. His evidence on the point is that when the plaintiff and Jehangir Mallik came to his office on 29.4.68, the plaintiff gave out that key of the stall had already been made over to Ferojuddin. 26. D. Ws. 3 and 4 formal witness. D. W. 5 is a vendor of readymade garments in Howrah Hat. He says that Jehangir and Sadek Ali Mallik used to purchase garments from him, that the said persons have stalls in the Maidan Market, that tailoring is done is one stall and readymade garments are sold in the other. He has proved certain bills, Ext. H series in this regard. It is not difficult to see that one of the stalls referred to is that of Jehangir and the other is the stall in dispute. Sadek Ali is the brother of Jehangir. D. W. 6 Jehangir, has asserted that he had been in possession of the stall from 27.4.1968 and doing business in readymade garments there until 28.12.68 when the shop was closed by the police. His specific evidence is that plaintiff was not in possession on 24.12.1968 when he filed his suit. We have already referred to Ext. C(3) dated 30.10.1968 which is a letter written by the Solicitor to the plaintiff in which it was claimed that the plaintiff had already parted with possession Ext. C(5) is another letter from the Solicitor to the Estate Officer dated 6.11.1968. By this letter the solicitor intimated the department that plaintiff had surrendered the stall as also possession, thereof to Ferojuddin. These letters written before the filing of the suit, coupled with the fact that the plaintiff did not reply to it, corroborate the defence case that plaintiff was not in possession at the date of the suit. The fact that on 6.10.1969 there was an order for return of the key of the stall to plaintiff is of no consequence because that was the result of a prima facie finding on an interlocutory application for injunction. 27. With regard to the factual position therefore, our findings may be summed up thus. Plaintiff Hiren is the recorded licensee of stall No. A/1 of Maidan Market Corner. He executed a letter of surrender of the stall in favour of defendant Ferojuddin on 27.4.68 on the later’s paying up the arrear dues on account of the stall. 27. With regard to the factual position therefore, our findings may be summed up thus. Plaintiff Hiren is the recorded licensee of stall No. A/1 of Maidan Market Corner. He executed a letter of surrender of the stall in favour of defendant Ferojuddin on 27.4.68 on the later’s paying up the arrear dues on account of the stall. The plaintiff made a case that he was induced to write the letter on certain false and fraudulent representations made by Ferojuddin's father Jehangir Mullik. At the trial the plaintiff made a completely different case but succeeded in proving neither. Ferojuddin, after the surrender, made payments of the licensee fees for some months even after 27.4.1968. The plaintiff was not in actual physical possession of the stall after that date which position stands amply supported by the plaintiffs own letters written to the authorities wherein he complained of dispossession by a third person meaning thereby Forojuddin Mallik. The plaintiff was not in possession at the date of the suit filed by him. The subsequent possession of the plaintiff on the strength of the order dated 6.10.1969 is inconsequential and cannot relate back to the date of the suit. 28. Such being our findings in regard to the facts the case made out by the plaintiff must be found to be untrue. Mr. Banerjee appearing on behalf of the plaintiff-respondent contended that in any view of the matter, there is no escape from the position that the defendant appellant cannot succeed in recovering possession on the strength of the letter of surrender which has no legal force or effect. It is true that the plaintiff being merely a licensee he has no transferable interest in the property. He could not lawfully surrender the stall in favour of Ferojuddin which virtually has the effect of transferring the stall to the latter. This is more so because of the restrictive clause in the agreement itself which prohibits the plaintiff to surrender or transfer to anybody other than the department concerned. Mr. Mukherjee while conceding the legal position argued by invoking the maxim "In paridelicto potior est contitio possidentis" that in the facts and circumstances of the case the court ought not to help the plaintiff and oust the defendant from possession. The maxim quoted above means 'where both parties are equally at fault, the condition of the possessor (or defendant) is the best. The maxim quoted above means 'where both parties are equally at fault, the condition of the possessor (or defendant) is the best. In support of the respective contentions, both sides relied on several decision both Indian and English. 29. The case of (1) Sajan Singh v. Sardara Ali, (1960) 1 All ER 269 lays down that where two persons agree together in a conspiracy to effect a fraudulent and illegal purpose and one of them transfers property to the other in pursuance of the conspiracy then, so soon as the contract is excepted and the fraudulent and illegal purpose is achieved, the property which has been transferred by the one to the other remains vested in the transferee, notwithstanding its illegal origin. The facts of that case were briefly as follows:- The respondent Sardara Ali, a lorry driver wanted to acquire a lorry but he had no chance of getting a haulage permit. He entered into an agreement with the appellant Sajan Singh whereby a lorry would be bought by and registered in the name of Sajan Singh. The lorry was bought by him and was registered in his name he having obtained the permit. The lorry however was possessed; used and operated by the respondent. There transactions were in contravention of the Registration of Motor Vehicles Regulations and were in deceit of the responsible authority. The respondent had paid the price of the lorry and it was ultimately sold to him. After some time, the appellant managed to get possession of the lorry in the absence and without the consent of the respondent and refused to return it. Then the action was brought by the respondent for return, of the vehicle or its value. In disposing of the dispute in the manner as aforesaid their Lordships added that if the law were not to allow the respondent to recover in this case, it" would leave the appellant in possession of both the lorry and the money he received for it and their Lordships were glad that in the facts of the case, this was not the law. 30. The case of (2) Chettiar v. Chettiar, (1962) 1 All ER 494 relates to a case of fraudulent and voidable conveyance in deceit of public administration. This was a case from an appeal from an order of the Supreme Court of the Federation of Malaya as the one cited above. 30. The case of (2) Chettiar v. Chettiar, (1962) 1 All ER 494 relates to a case of fraudulent and voidable conveyance in deceit of public administration. This was a case from an appeal from an order of the Supreme Court of the Federation of Malaya as the one cited above. This was an action brought by the father against his son. The father who owned ninety nine acres of rubber land bought forty additional acres. In order to avoid disclosure to the authority that he held more than one hundred acres as required under the Regulations for the control of production of rubber, the father transferred the forty acres into his son's name not intending to give the land to the son. The transfer was in the form of a sale. The price was not in fact paid. The father received all the income and paid all the outgoings of the property. 31. The transfer was duly registered and a certificate of the son's title issued. Later the father brought proceedings for a declaration that the son held the land in trust for the father and for an order that the son retransfer it to him. The son counter claimed for an account of the mesne profits. It was held that since the father had of necessity to disclose his own illegality in order to make out his claim, the Court was bound to take notice of the illegality, would not lend its aid to the father and would let the legal estate lie where it was. Both the claim and the counter claim were dismissed. 32. It is significant that in the former case, the plaintiff's claim was allowed while in the later it was not. The essential difference between the two cases is that in the former the plaintiff founded his claim on his right of property in the lorry and his possession of it. In the later case the father had to put forward and assert his own fraudulent purpose which he had fully achieved. 33. The case of (3) Mistry Amar Singh v. Kulubya, (1963) 3 All. ER 499, is a case from East Africa. In the later case the father had to put forward and assert his own fraudulent purpose which he had fully achieved. 33. The case of (3) Mistry Amar Singh v. Kulubya, (1963) 3 All. ER 499, is a case from East Africa. The issue which arose for consideration in that case was whether the plaintiff could by legal proceedings recover certain land from the defendant although following a purported lease in contravention of statutory enactments, the plaintiff had put the defendant into possession. Under the law of the land, an african owner of Mailo land committed an offence if he leased such land to a non-african without the consent of the authority. In this case, an african owner of Mailo land, without obtaining the consent made necessary by legislation agreed to lease 3 plots to the defendant an Indian and allowed him to remain in possession. Subsequently the african sued to recover possession and for rent, mesne profits and damages. The claim for rent, mesne profits and damages were later abandoned. It was held that the african was entitled to recover possession because his registered ownership of the land, and the Indian defendant could not justify remaining on the land because of the illegality of the contract. 34. Mr. Banerjee on behalf of respondent argued on the authority of the two decisions that the plaintiff Hiren founded his claim not on the illegal letter of surrender but on his own rights as the recorded licensee of the stall and was thus not "in pari delicto". It is significant to note that Hiren did not seek recovery of possession on the basis of his rights as the recorded licensee. All that he has asked for in this suit is a declaration that the letter of surrender is fraudulent, void, inoperative and illegal and for injunction restraining the defendants-appellant from interfering with his possession. The plaintiff has failed to prove the fraud alleged. He has failed to prove that he was in possession. Apart from these distinguishing features it is pertinent to note that in the case of Mistry Amar Singh the plaintiff was held not to be "in pari delicto" with the defendant because he belonged to a community which was sought to be protected by legislation. In the instant case before us the plaintiff is not entitled to such special or statutory protection. In the instant case before us the plaintiff is not entitled to such special or statutory protection. The facts of this case therefore do not strictly apply to the facts of the case before us. 35. The case of (4) Bowmakers v. Barnet Instruments, 1945 1 KB 65 relied on by Mr. Banerjee lays down that no claim founded on an illegal contract will be enforced by the Court, but as a general rule a man's right to possession of his own chattels will be enforced against one who, without any claim of right is detaining them, even though it may appear from the pleadings, or in the course of trial, that the chattels in question case in to the defendants possession by reason of an illegal contract between himself and the plaintiff provided that the plaintiff does not seek, and is not forced either to found his claim on the illegal contract or to plead its illegality to support his claim. An exception to this general rule arises when the goods claimed are of such a kind that it is unlawful to deal in them at all. 36. Another case relating to benami transaction, case of (5) T.P. Pether Permal Chetty v. R. Muniandi Servai, 35 IA p. 98 was also cited by Mr. Banerjee. That was a suit to recover certain land in respect of which the plaintiff's predecessor in title had earlier executed a collusive and benami deed of sale in favour of defendant's predecessor in title in order to defeat the claim of a prior equitable mortgagee who at once sued the parties to the said benami deed and obtained satisfaction of his claim with costs. It was held that the purpose of the fraudulent conveyance having been defeated, the plaintiff was entitled to a decree and the defendant could not rely upon the contemplated fraud as an answer to the action. The essential difference between that case and the case before us is that the main issue in that case was whether the said deed was benami, and if so, whether the plaintiff was entitled to question its validity while in the suit before us the letter of surrender which the plaintiff is seeking to avoid was a real transaction entered into by the parties for consideration and also acted upon in the sense that possession was delivered to the defendant. 37. 37. Upon a review of the previous cases on the subject the Supreme Court in the case of (6) Kedar Nath v. Prahlad Rai, AIR 1960 SC Page 213 laid down that what is to be seen is whether the illegality goes so much to the root of the matter that the plaintiff cannot bring his action without relying upon the illegal transaction into which he had entered. If however, the plaintiff is not required to rest his case upon that illegality, then the public policy demands that the defendant should not be allowed to take advantage of the position. If the illegality is not required to be proved as a part of the cause of action and the plaintiff recanted before the illegal purpose was achieved, then, unless it be of such gross a nature as to outrage the conscience of the Court, the plea of the defendant should not prevail. This was It case arising out of a benami transaction. 38. The case of (7) Shaw v. Shaw, (1965) 1 All ER 638 relates to a case where the plaintiff bases his claim on an illegal payment but seeks to recover the same. The facts were like this the plaintiff by his statement of claim alleged that he paid £4, 000 to the defendant under an oral agreement for the transfer to him of a flat in Spain. It was an implied condition of the agreement that it should be subject to treasury permission required under the Exchange Control Act, being obtained. No such permission was obtained. The plaintiff claimed the return of the money. On an application by the defendant that the statement of claim being based on the plaintiff's own illegal act, should be struck out, it was held that the plaintiff based his claim on the illegal payment and that was clearly bad. 39. Finally, Mr. Mukherjee referred to the case of (8) Waman Srinivas v. R.B. & Co., AIR 1959 SC Page 689. In that case the question was as to the validity of waiver of statutory rights and also whether the Court would aid the appellant in enforcing a term of the agreement which the statute declared to be illegal. In deciding the suit the applicability of the maxim "in pari delicto" etc. was gone into and the true meaning of the maxim as expounded in Bowmaker's case was approvingly referred to. In deciding the suit the applicability of the maxim "in pari delicto" etc. was gone into and the true meaning of the maxim as expounded in Bowmaker's case was approvingly referred to. The tree meaning according to that case is that "where the circumstances are such that the Court will refuse to assist either party, the consequence must, in fact follow that the party in possession will not be disturbed". 40. In the instant case Mr. Banerjee argued that the maxim "in pari delicto" is not applicable because the plaintiff did not found his cause of action on the illegal agreement between himself and the defendant and that he is entitled to the relief claimed on his own rights independently of the agreement. It was also contended that no fraudulent purpose was in fact achieved and that therefore the illegality of the agreement could not be an answer to the action. These contentions might have been well founded if our findings on questions of fact were different. We have found here that the plaintiff being unable to run the business in the stall effectively entered into an agreement to surrender the stall in favour of defendant Ferojuddin Ext. L shows that in the market, many persons were in fact running business in the stalls though the stalls stood in the names of other persons. To regularise such illegal occupation, the market authorities invited such persons in actual possession to apply along with letters of surrender within a stipulated time. It was in the back ground of such a situation that the letter of surrender was executed and the defendant Ferojuddin in fact applied to the proper authority for being recognised as the licensee. The plaintiff received due consideration for giving the letter of surrender and gave up possession in favour of the defendant. Such being our findings, the plaintiff's suit as it is framed is clearly misconceived. The plaintiff being out of possession cannot ask for a bare declaration and injunction without asking for the proper remedy namely recovery of possession. This apart the plaintiff cannot contend that his claim is not founded on the agreement. In fact the main relief in the suit relates to a declaration that the letter of surrender is fraudulent and void. Factually he had failed to prove that fraud was practised upon him. This apart the plaintiff cannot contend that his claim is not founded on the agreement. In fact the main relief in the suit relates to a declaration that the letter of surrender is fraudulent and void. Factually he had failed to prove that fraud was practised upon him. On the contrary the facts proved indicate that it is the plaintiff who, by seeking to avoid the letter of surrender, after having received all the benefits thereunder, is asking the aid of the Court in perpetuating a fraud on the defendant. Such a claim can not be sustained. 41. By reason of the fact that the main relief sought by the defendants in their suit (T.S. 685 of 1969) flows from the letter of surrender which cannot be legally enforced against the Department concerned, that suit which is really in the nature of a counter claim must also fail. This is a case where the Court will not lend its aid to assist other party. The consequence that must follow in such circumstances is that the party in possession will not be disturbed. It would then be for the department concerned to decide how they will deal with application of Ferojuddin for allotment of the stall to him. 42. It is true that the plaintiff Hiren has subsequently come into possession during the pendency of the suit, but our clear finding is that he was not in possession at the commencement of the action. The possession was with the defendant-appellant and that possession was not liable to be disturbed. If the plaintiff has come into possession on the strength of an interlocutory order the defendant appellant would be entitled to restitution not by way of enforcement of any decree but because he was in possession but has been dispossessed by an order of the Court. The finding in regard to possession at the interlocutory and final stage as arrived at by the Ld. Judge in the trial Court are reversed by our findings made in the appeal. 43. Such being the position appeal no. 438/72 arising out of T.S. No. 854 of 1968 succeeds and is hereby allowed. T.S. 854/1968 is dismissed on contest with cost. Appeal No. 439/72 arising out of; T.S. 685/1969 is dismissed. Parties to bear their own costs in the appeals. Sen, J. : I agree.