JUDGMENT - NAIK BHIMRAO N., J.:—The present petition is filed under Article 227 of the Constitution of India by the original tenants seeking to challenge the order for possession passed in Ejectment Application No. 239/R of 1976 on 24th December, 1981. 2. Few facts which are relevant for the purpose of this petition are that the premises in dispute which is a shop admeasuring 22.30 sq. mts. on the ground floor of the Bombay Port Trust Building bearing old R.R. No. 896, at Veer Shrikant Hadkar Marg, Kalachowki, Bombay is owned by respondents-original applicants. In the year 1964 the premises were leased to petitioner No. 1 at the monthly rent of Rs. 72/-. It appears that on 8th December, 1973 petitioner No. 1 assigned the leasehold rights in favour of petitioners Nos. 2 and 3. On 8th December, 1973 they deposited a sum of Rs. 1,740/- being the deposit of six months' rent at the rate of Rs. 290/- per month as per the requisition made by the respondents' estate manager, by their letter dated 6th December, 1973, annexed at Exhibit I to the additional compilation. Thereafter some correspondence exchanged between the parties. The insistence by the Bombay Port Trust was to pay the rent at the rate of Rs. 290/- per month whereas the insistence of the assignees was to reduce the rent. Thereafter on 11th October, 1976 notice to quit was served upon the petitioner No. 1 alone, and Ejectment Application bearing No. 239/E of 1976 was filed since he refused to deliver the possession. 3. It is not disputed that the present case is covered by an unamended section 41 of the Presidency Small Cause Courts Act, 1882 as also section 43. 3. It is not disputed that the present case is covered by an unamended section 41 of the Presidency Small Cause Courts Act, 1882 as also section 43. Section 41 as amended stood as under: “When any person has had possession of any immovable property situate within the local limits of the Small Causes Courts' jurisdiction and of which the annual value at a rackrent does not exceed three thousand rupees, as the tenant, or by permission, of another person, or of some person through whom such other person claims, and such tenancy or permission has been determined or been withdrawn, such tenant or occupier or any person holding under or by assignment from him (hereinafter called the occupant) refuses to deliver up such property in compliance with a request made to him in this behalf by such other person, and such person (hereinafter called the applicant) may apply to the Small Causes Court for a summons against the occupant, calling upon him to show cause, on a day therein appointed, why he should not be compelled to deliver up the property.” Section 43 stood as follows: “If the occupant does not appear at the time appointed and show cause to the contrary, the applicant shall, if the Small Causes Court is satisfied that he is entitled to an order addressed to a bailiff of the Court directing him to give possession of the property to the applicant on such days as the Court thinks fit to name in such order.” 4. Notwithstanding the requirement of unamended section 41 it is an admitted fact that possession was not claimed from the present petitioners Nos. 2 and 3, which was one of the requirements of section 41 and an ejectment application was filed against all the petitioners, though notice of termination was given against petitioner No. 1 alone. 5. The learned Judge of the Small Causes Court recorded a finding that the petitioners are not entitled for the protection under the Bombay Rents, Hotel and Lodging House Rents Control Act, 1947, the ejectment application as filed is maintainable, tenancy of petitioner No. 1 was duly terminated and hence petitioner No. 1 was eligible to be evicted and petitioners Nos. 2 and 3 being the occupants of the premises have let out to petitioner No. 1 and as such liable for eviction because of termination of tenancy of petitioner No. 1. 2 and 3 being the occupants of the premises have let out to petitioner No. 1 and as such liable for eviction because of termination of tenancy of petitioner No. 1. It was also held that petitioner Nos. 2 and 3 are not assignees of petitioner No. 1. In this view of the matter the order of possession was passed in the ejectment application. 6. The order passed under section 41 being final and the petitioners having no other alternative remedy have filed this writ petition under Article 227 of the Constitution of India. 7. Shri Thorat learned Counsel appearing for the petitioner pointed out that his case is covered by the law laid down by this Court in (Civil Revision Application No. 580 of 1970)1, dated 8th, 9th and 12th July, 1976. He pointed out that the facts involved were identical and in fact is more on a stronger footing. That was also an ejectment application filed only against the tenant and when the grievance was made by the assignees they were joined as respondents to an ejectment application. On the basis of the interpretation of section 41 it was held by the Small Causes Court in that matter that it is true that the tenancy of the tenant was terminated and possession was demanded from him. However, the requirement of section 41 so also for possession must be demanded from the occupant also. Since the possession was not demanded from the occupant, that is, the assignee in that matter the Small Causes Court rejected the ejectment application holding that the application is not maintainable and even refused to pass an order for possession against the tenant. Thus the matter was carried in revision, mentioned above, and Shri Sapre J., was required to consider the main defence that was raised by the assignees that since no delivery of possession was asked for from the occupants the application is not maintainable. Since there was no demand regarding delivery of possession the question of delivery of possession did not arise and hence there was no cause of action. Thus the contention accepted by the Small Causes Court was confirmed by Sapre J., by his exhaustive judgement. Since there was no demand regarding delivery of possession the question of delivery of possession did not arise and hence there was no cause of action. Thus the contention accepted by the Small Causes Court was confirmed by Sapre J., by his exhaustive judgement. Section 41 which is unamended, reproduced above, clearly shows that one of the requirements of section 41 is not merely the termination of the tenancy of the tenant but such tenant or occupier or any person holding, under or by, assigns from him refuses to deliver such property in compliance with a request made to him in this behalf by such other person. Therefore, it was rightly held by Sapre J., that the requirement of the section is that possession must be claimed even from the occupier and there must be a refusal of delivery of possession and only in such a case section 41, unamended, would be attracted. Admittedly in this matter the possession was not claimed from petitioners 2 and 3 and therefore, their refusal to deliver possession really does not arise. In the absence of such a refusal, in view of the decision of Sapre J. I accept the contention of Shri Thorat for the petitioners. 8. Mr. Makhija learned Counsel appearing for the respondents contended that he must get at least a decree or order for possession against petitioner No. I against whom an ejectment application was filed after proper termination of tenancy and even the possession was claimed which he refused to deliver, and therefore, there is no justification for not granting possession as against him. 9. It has come on the record that petitioner No. 1 is not in possession since the date of assignment to the knowledge of the respondents. The correspondence on record proves this fact. In fact there was a proposal to agree to the assignment subject to certain terms and conditions. Even this point was agitated before the learned Small Causes Court Judge in the matter which arose before Sapre J., and he refused to pass any order for possession in favour of the original tenant, whose tenancy was duly terminated. I am entirely in agreement with the reasoning given for the same by Sapre J., as also in the interpretation of section 43, unamended. In view of this there is no substance in the contentions raised by Mr. Makhija. I am entirely in agreement with the reasoning given for the same by Sapre J., as also in the interpretation of section 43, unamended. In view of this there is no substance in the contentions raised by Mr. Makhija. In the result the petition is allowed and rule made absolute with no order as to costs. Petition allowed. -----