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1995 DIGILAW 343 (GUJ)

B. D. SAHASTRABUDDHE v. MADHUSUDAN MAHADEV DEV

1995-07-24

J.N.BHATT

body1995
J. N. BHATT, J. ( 1 ) THE opponent is the original plaintiff-landlord who had filed the suit in the Court of Small Cause Judge, at Baroda, against the present petitioners who are the original defendants heirs of the deceased tenant for the recovery of possession of the demised premises and also for the mesne profit which came to be decreed. The appeal against the judgment and decree of eviction came to be dismissed. Hence, this revision application under Sec. 29 (2) of the Bombay Rents, hotel and Lodging House Rates Control Act, 1947 (Bombay Rent Act for short ). ( 2 ) THE small question which is required to be adjudicated upon in this revision is as to whether the petitioners are entitled to retain the possession of the demised premises under Sec. 5 (11) (c) of the Bombay Rent Act. The deceased Bhaskerrao damodar Sahastrabuddhe was a monthly tenant in respect of one room on the ground floor situated in Shiyapura bearing Census No. RA 2/143, near Raopura, in Baroda at monthly rent of Rs. 11. 42 P. who died on 19-4-1977 without any issue. Therefore, the plaintiff filed Rent Suit No. 365 of 1977 for recovery of the demised premises from the defendants who are claiming to be legal heirs and representatives of the deceased tenant. The plaintiff inter alia contended that the defendants are not entitled to use and occupation of the demised premises upon the death of the original tenant as he died without leaving heirs and none was staying at the relevant time with the deceased. According to the case of the plaintiff the defendants were residing separately who had taken over the possession upon the death of the deceased tenant. The case of the plaintiff in short is that the defendants are not entitled to use and occupation of the demised premises as they are not covered under Sec. 5 (11) (c) of the Bombay Rent Act. ( 3 ) THE defendants resisted the suit by filing written statement Exh. 10 and contested the claim of the plaintiff. They claimed tenancy right. They contended they were living separately on account of big family. ( 3 ) THE defendants resisted the suit by filing written statement Exh. 10 and contested the claim of the plaintiff. They claimed tenancy right. They contended they were living separately on account of big family. ( 4 ) ON examination of the facts and circumstances the trial Court held that the plaintiff rejected (sic) the contention of the defendants that they are entitled to use and occupation of the demised premises under Sec. 5 (11) (c) of the Bombay rent Act. The suit came to be decreed which was challenged in Civil Appeal No. 141 of 1980 before the District Court at Baroda which also came to be dismissed. Hence, this revision application under Sec. 29 (2) of the Bombay Rent Act. ( 5 ) THE Courts below have consistently and concurrently held that the defendants are not entitled to protection of the provisions of Sec. 5 (11) (c) of the Bombay Rent act. The finding of facts cannot be reappreciated and reappraised by a revisional court by exercising the provisions of Sec. 29 (2) of the Bombay Rent Act. In bhaichand Ratanshi v. Laxmishanker Tribhovan, AIR 1981 SC 1690 the apex Court has held that under Sec. 29 (2), although the High Court has wider jurisdiction than the one exercisable under Sec. 115 of the Civil Procedure Code its revisional jurisdiction can only be exercised only for a limited purpose with a view to satisfying itself that the impugned decision or decree is according to law or not. ( 6 ) EVEN when two views are possible, this Court while sitting in revision cannot substitute its own views. When the view taken by the trial Court in the impugned order or decree is possible then it is not permissible for the High Court to take a different view and substitute its finding in place of the finding of the Courts below. This proposition is very well explained and established by the apex Court in helper Girdharbhai v. Saiyed Mohmad Mirasaheb, AIR 1987 SC 1782 : [1987 (2) glr 960 (SC)]. ( 7 ) IT is, therefore, very clear from the settled proposition of law that this Court cannot upset or reverse the finding of fact of reappreciation and reappraisal of the testimonial and documentary evidence. ( 7 ) IT is, therefore, very clear from the settled proposition of law that this Court cannot upset or reverse the finding of fact of reappreciation and reappraisal of the testimonial and documentary evidence. The Courts below have concurrently and consistently recorded that the petitioners, original defendants are not entitled to protection of Sec. 5 (11) (c) of the Bombay Rent Act. This finding of fact is challenged in this revision. ( 8 ) IT is contended that the Courts below have taken illegal view of holding that the original defendants are not entitled to protection of Sec. 5 (11) (c) of the bombay Rent Act. This Court is not in a position to accept this submission as the concurrent finding of fact of the Courts below that the defendants are not entitled to the protection of Sec. 5 (11) (c) is based on correct appreciation of facts and proposition of law. Sec. 5 (11) (c) reads as under :" (C) (I) in relation to premises let for residence, any member of the tenants family residing with the tenant at the time of or within three months immediately precedings, the death of the tenant as may be decided in default of agreement by the court, and (ii) in relation to premises let for business, trade or storage, any member of the tenant in the said premises at the time of the death of the tenant may continue, after his death, to carry on the business, trade or storage, as the case may be, in the said premises and as may be in default of agreement by the Court. "what will be the legal position in the case of death of a tenant is provided in sec. 5 (11) (c ). The Courts below have interpreted the aforesaid provision in the light of the factual scenario. It is found on facts that after the death of original tenant bhaskerrao Damodar, the defendants were not entitled to the provisions of sec. 5 (11) (c) as they were not the members of the family of the deceased who were residing with the deceased at the time of his death. From the evidence, it is found that the defendants were residing elsewhere. They are not close relatives. Deceased was staying alone in the premises at the time of his death. 5 (11) (c) as they were not the members of the family of the deceased who were residing with the deceased at the time of his death. From the evidence, it is found that the defendants were residing elsewhere. They are not close relatives. Deceased was staying alone in the premises at the time of his death. ( 9 ) CONSIDERING the facts and circumstances and in view of the intent and purpose of the provisions of Sec. 5 (11) (c) the Courts below have reached a correct decision that the defendants are not entitled to the protection of Sec. 5 (11) (c ). ( 10 ) IN the light of the facts and circumstances, this revision is found meritless and requires to be dismissed and accordingly it is dismissed with no order as to costs in the circumstances of the case. Interim relief stands vacated. .