Judgment K.A. Puj, J.—The petitioner - original defendant has filed this Civil Revision Application against the judgment and decree passed by the Appellate Bench of the Small Causes Court at Ahmedabad in Civil Appeal No. 128 of 1999 confirming the judgment and decree passed by the learned Small Causes Court Judge, Ahmedabad in HRP Suit No. 2552 of 1986. 2. This Civil Revision Application was admitted and rule was issued on 02.09.2005 and interim relief was granted in terms of Paragraph 7(b) on usual terms whereby the execution and operation of the decree passed in HRP Suit No. 2552 of 1986 as confirmed by the Appellate Bench of the Small Causes Court Judge, Ahmedabad in Civil Appeal No. 128 of 1999 was stayed. 3. The brief facts giving rise to the present Civil Revision Application are that the present respondent - original plaintiff has filed HRP Suit No. 2552 of 1986 stating therein that he is the owner of the property situated in the city of Ahmedabad in Ellisbridge ward, Opposite Nagari Hospital in Bharti Co-operative Housing Society Limited bearing Bungalow No. 16-B and out of it, except half of the room on the first floor, rest of the first floor was in possession of one Kashiben Bhailalbhai Patel as tenant. The said tenant expired in July 1975 and after her death, Shri Manibhai Shivabhai Patel being the husband of Kashiben became the tenant of the suit premises. The said Manibhai S. Patel also expired on 14.04.1986 without leaving any heir and representative. The rent of the premises was Rs. 23/- per month inclusive of municipal taxes and exclusive of education cess and electrical burning charges. It is further alleged in the suit that there were several litigations with original tenants Kashiben and Manibhai and lastly, HRP Suit No. 4130 of 1975 was filed by the plaintiffs against the tenant Shri Manibhai and thereafter another suit No. 1568 of 1976 was filed against him for the relief of necessary injunction. Both the suits were consolidated and have been decided by a common judgment on 21.12.1979. The suit for possession being HRP Suit No. 4103 of 1975 filed by the plaintiff was dismissed. Both the suits were consolidated and have been decided by a common judgment on 21.12.1979. The suit for possession being HRP Suit No. 4103 of 1975 filed by the plaintiff was dismissed. But another Suit No. 1568 of 1976 filed by the plaintiff for the relief of necessary injunction was decreed in his favour and thereby the tenant Manibhai was permanently restrained from subletting or transferring or assigning the suit premises and he was also permanently restrained from subletting or transferring or assigning the suit premises to his brother Vitthalbhai or the son of Vitthalbhai i.e. Nileshbhai who is the present petitioner and the defendant in the suit. It is further alleged that the plaintiff had filed Civil Appeal No. 138 of 1980 against the dismissal of the Suit No. 4103 of 1975 and the deceased tenant Manibhai also filed Civil Appeal No. 151 of 1980 against the grievance of the permanent injunction granted by the Court against him in HRP Suit No. 1568 of 1976. Both these Appeals came to be dismissed by the Appellate Bench vide its common judgment dated 30.11.1983. 4. It is the case of the present respondent - original plaintiff in the suit that the present petitioner / original defendant is not the legal heir or representative of the deceased tenant Shri Manibhai and, therefore, he did not have any right in the suit premises. The present petitioner - original defendant did not acquire any legal tenancy rights in the suit premises even under the provisions of the Bombay Rent Act. The present petitioner is the son of Vitthalbhai, who happens to be the brother of the deceased tenant Shri Manibhai and he is not considered to be the legal heir within the meaning of Section 5(11)(c) of the Bombay Rent Act. 5. The defendant appeared in the suit and filed written statement at Exhibit 19 and contended, inter alia, that he resided in the suit premises for the last several years. It is further contended that the defendant and the members of his family have acquired legal tenancy rights in the suit premises under the provisions of the Bombay Rent Act. The deceased tenant, Shri Manibhai has not legally transferred or sublet or assigned the suit premises to him, but he has acquired the tenancy rights under the provisions of the Bombay Rent Act. 6. The deceased tenant, Shri Manibhai has not legally transferred or sublet or assigned the suit premises to him, but he has acquired the tenancy rights under the provisions of the Bombay Rent Act. 6. After framing the issues and after appreciating the evidence - oral as well as documentary and after considering the rival submissions, the learned Small Causes Court Judge had come to the conclusion that the defendant is not entitled to claim any tenancy rights under the provisions of the Bombay Rent Act in respect of the suit premises. The plaintiff’s prayer for possession was granted and the defendant was directed to hand over the vacant and physical possession of the suit premises to the plaintiff on or before 31.08.1999. 7. This judgment and decree was challenged in Appeal before the Appellate Bench of the Small Causes Court at Ahmedabad and the Appellate Court has also come to the same conclusion that evidence produced by the appellant showing the address at the suit premises in the form of paper bills, radio license, membership cards, gas bills, milk bills, medical bills of children, passbook, marriage certificate, telephone directory and other bulk of correspondence and sales tax correspondence are all in the nature of inferential piece of documents and they themselves cannot be relied to uphold the claim of the appellant that he is the tenant of the suit premises. The Appellate Bench has, therefore, held that the learned Trial Judge has not committed any error and both the points framed by the Appellate Bench, namely, whether the learned Trial Judge has committed error in denying the right of the present appellant for transmission of tenancy under Section 5 (11) (c) (i) of the Bombay Rent Act and whether the learned Trial Judge has committed error in passing the decree for vacant physical possession of the suit premises, were decided in negative and the appeal was accordingly dismissed. 8. It is this judgment and decree passed by the learned Appellate Bench of the Small Causes Court which is under challenge in the present petition. 9. Mr. S. M. Shah, learned Advocate appearing for the petitioner has submitted that both the Courts below have failed to consider that the petitioner inherited tenancy rights of his uncle and aunt who died issueless and the petitioner being their nephew, was residing with them as a member of their family. 9. Mr. S. M. Shah, learned Advocate appearing for the petitioner has submitted that both the Courts below have failed to consider that the petitioner inherited tenancy rights of his uncle and aunt who died issueless and the petitioner being their nephew, was residing with them as a member of their family. He has further submitted that because of the findings recorded and the case pleaded in the plaint, the respondent - plaintiff cannot get decree for possession of the suit premises from the rent Courts and hence, the decree passed for possession of the suit premises deserves to be quashed and set aside. He has further submitted that as per the settled position and as held by the Full Bench of this Court, the tenancy is heritable and transferable and can be inherited as per general law and landlord cannot get decree for possession. He has further submitted that there is no justification in arriving at the conclusion by the Courts below that the petitioner has not acquired tenancy rights in the suit premises. The lower Court has merely relied on the injunction decree passed against the deceased tenant Manibhai and on that basis, the lower Court has come to the conclusion that after his death, nobody can inherit the suit premises under Section 5 (11) (c) or under general law. Since the petitioner has acquired tenancy rights under general law, the rent Court has no jurisdiction to entertain the suit filed by the plaintiff. He has further submitted that the Courts below have not considered various documents produced by the petitioner in their true perspective. 10. In support of his submissions with regard to transmission of tenancy rights, Mr. Shah relied on the Full Bench decision of this Court in the case of Babubhai @ Jayantilal Kalyanbhai and Others vs. Shah Bharatkumar Ratilal and Others, 1980 (21) GLR 103 wherein it is held that having regard to the definition of word ‘tenant’, where a person continuing in occupation after determination of contractual tenancy with or without the assent of the landlord, a person continuing in occupation accordingly is entitled to continue in occupation on the same terms and conditions as before till an order of eviction is made against him under the relevant provisions of the State Rent Act. 11. Mr. 11. Mr. Shah further relied on the decision of the Apex Court in the case of Vasant Pratap Pandit vs. Dr. Anant Trimbak Sabnis, (1994) 3 SCC 481 wherein it is held that the legislative prescription under Section 5 (11) (c) (i) is first to give protection to members of the family of the tenant residing with him at the time of his death. The basis for such prescription seems to be that when a tenant is in occupation of premises, the tenancy is taken by him not only for his own benefit but also for the benefit of the members of the family residing with him. Therefore, when the tenant dies, protection should be extended to the members of the family who were participants in the benefit of the tenancy and for whose needs as well tenancy was originally taken by the tenant. It is for this avowed object, the Legislature has, irrespective of the fact whether such members are heirs in the strict sense of the term or not, given them the first priority to be treated as tenants. It is only when such members of the family are not there, the heirs will be entitled to be treated as tenants as decided, in default of agreement by the Court. In other words, all the heirs are liable to be excluded, if any other member of the family was staying with the tenant at the time of his death. When Section 15, which prohibits subletting, assignment or transfer is read in juxtaposition with Section 5 (11) (c) (i), it is patently clear that the Legislature intends that in case no member of the family as referred to in the first part of the Clause is there, the heir, who under the ordinary mode of succession would necessarily be a relation of the deceased, should be treated as a tenant of the premises, subject, however, to the decision by the Court in default of agreement. 12. Mr. 12. Mr. Shah further relied on the decision of the Apex Court in the case of Smt. Gian Devi Anand vs. Jeevan Kumar and Others, AIR 1985 SC 796 wherein it is held that if the Rent Act in question defines the tenant in substance to mean a tenant who continues to remain in possession even after termination of the contractual tenancy till a decree for eviction against him is passed, the tenant even after determination of the tenancy continues to have an estate or interest in the tenanted premises and the tenancy rights both in respect of residential premises and commercial premises are heritable. The heirs of the deceased tenant in the absence of any provision in the Rent Act to the contrary will step into the position of the deceased tenant and all the rights and obligations of the deceased tenant including the protection afforded to the deceased tenant under the Act will devolve on the heirs of the deceased tenant. 13. Mr. Shah further relied on the decision of this Court in the case of (Bai) Induben alias Dhanbai vs. Saiyad Mahmad Jiya and Others, 1985 GLH 138 wherein it is held that Section 5 (11) of the Bombay Rents, Hotels and Lodging House Rates Control Act, 1947 defines a tenant. It is an inclusive definition. Since there is no dispute that the premises in question were let for business purposes, the relevant provision will be Sub-clause (ii) of Clause (c) of Sub-section (11) of Section 5 of the Act. In order to invoke this inclusive clause, it must be shown that some member of family was carrying on business in the said premises at the time of death. Such a family member or family members, who continue to carry on the business in the said premises after the death of the tenant can claim to be a tenant. If there are two or more family members claiming tenancy, the Court may be required to determine the question of transmission of tenancy in the event of there being no agreement on whom the tenancy should devolve. The question of transmission of tenancy would not arise if as a matter of fact, it is found that no member of tenant’s family was carrying on business with the tenant at the time of the latter’s death. The question of transmission of tenancy would not arise if as a matter of fact, it is found that no member of tenant’s family was carrying on business with the tenant at the time of the latter’s death. In that case, the special provision would not come into operation and the right of the tenant in the demised premises would devolve by inheritance. Such legal representatives would be tenants in common. A tenancy can be transmitted only if the sine qua non that one or more members of the tenant’s family were carrying on business with the tenant at the time of death is established. If this basic fact is not established, there would be no question of transmission of tenancy under the aforesaid sub-clause. 14. Mr. Shah further raised an issue of stamp duty. He has submitted that the plaintiff has filed the suit treating the defendant as tenant and on that basis, the Court Fee Stamp has been paid by the plaintiff. He has, therefore, submitted that once having treated the defendant as tenant of the suit premises, it is not open for the plaintiff to challenge the said status of the defendant. He has further submitted that the defendant was staying with the deceased tenant at the time of his death and more than 30 years have passed. Hence, there is no question of not treating the petitioner as the tenant of the suit premises. He has, therefore, submitted that the appeal of the petitioner be allowed and the judgment and decree passed by the Courts below may be quashed and set aside. Alternatively, Mr. Shah has submitted that if the petitioner were not the tenant, the suit filed by the respondent - landlord is not maintainable as the relationship of landlord and tenant must exist at the time of institution of the suit. Since it was not done, the suit itself is not maintainable. 15. Mr. M. B. Gandhi, learned Advocate appearing with Mr. Chinmay M. Gandhi for the respondent has submitted that both the Courts below have dealt with the issue of transmission of tenancy and there is a concurrent finding of facts by both the Courts that Section 5 (11) (c) does not operate nor the original defendant - present petitioner has got any right to claim devolution of tenancy. Chinmay M. Gandhi for the respondent has submitted that both the Courts below have dealt with the issue of transmission of tenancy and there is a concurrent finding of facts by both the Courts that Section 5 (11) (c) does not operate nor the original defendant - present petitioner has got any right to claim devolution of tenancy. On the contrary, he is a tress-passer and, therefore, he is not entitled to any protection of the Act. He has further submitted that the property was originally let out to Kashiben and she expired on 22.07.1975. After the death of Kashiben, the property devolved upon Manibhai Patel. The said Manibhai Patel also expired on 14.04.1986. On death of Kashiben, Manibhai was accepted as tenant. Kashiben and Manibhai were wife and husband and they had no issue whatsoever. The present petitioner is the nephew of Manibhai and as a nephew, he is not entitled to inherit tenancy. Not only that, but the said nephew never resided in the suit property prior to the death of Manibhai on 14.04.1986. not only that, there is concurrent finding of fact given by both the Courts below that Nilesh Patel has failed to prove that he resided in the suit premises. He has further submitted that both the Courts below have gone into all the documentary evidences produced by the petitioner and after evaluating the evidence, both the Courts below have come to the conclusion that the evidence produced is not indicating or proving the residence of the petitioner in the suit premises. He has further submitted that some additional evidence was tried to be put through taking recourse to the provisions of Order XLI Rule 27 of the Code of Civil Procedure, at the appellate stage. Such evidence could not have been produced. Even then the lower Court has exceeded the jurisdiction and has gone into all the documents and even then, after assessment being made, the said evidence was discarded as it was not helpful to the petitioner in proving his residence in the suit premises. 16. Mr. Gandhi further submitted that the father of the petitioner, namely, Vitthalbhai Patel expired on 29.10.1982. On death of Manibhai on 14.04.1986, the petitioner - Nilesh had come to perform funeral ceremony of deceased Manibhai and at that time also, the present respondent had said that he has no right to do anything in the house. 16. Mr. Gandhi further submitted that the father of the petitioner, namely, Vitthalbhai Patel expired on 29.10.1982. On death of Manibhai on 14.04.1986, the petitioner - Nilesh had come to perform funeral ceremony of deceased Manibhai and at that time also, the present respondent had said that he has no right to do anything in the house. However, he wanted to complete the formality and thereafter he has to hand over the possession. But instead of that, he claimed right of tenancy in the suit premises and, therefore, the present respondent - original plaintiff had no option but to file HRP Suit No. 2552 of 1986 wherein decree for possession was passed on 30.04.1999 and thereafter the appeal preferred by the petitioner being Appeal No. 128 of 1999 also came to be dismissed on 10.08.2005. 17. Mr. Gandhi further submitted that an attempt was made by the petitioner that all his correspondences posts, letters etc. are served on him at the suit premises, and, therefore, the Court should draw an inference for the tenancy. However, there is an enough evidence on the record of the case that he was carrying on the business at Navsari but to facilitate the customers, only for the purpose of correspondence, the address of the suit premises was given and, therefore, if such letters are received, there cannot be a conclusion that the petitioner resides in the suit premises. He has further submitted that only with a view to concoct false story, an attempt was made by the petitioner to bring a story that the original property was leased to HUF. However, that story is not believable because it is an established fact beyond any shadow of doubt that tenancy was in favour of Kashiben and, therefore, it was a personal tenancy and not HUF tenancy. He has further submitted that the ration card of Manibhai is also on the record wherein only two names are shown and the name of the petitioner is not shown. He has further submitted that the ration card of Manibhai is also on the record wherein only two names are shown and the name of the petitioner is not shown. Not only that, but the petitioner was also called upon by the Lower Court to produce his Passport but the same was not produced and when the Court called upon to produce inspite of the same, it was not produced and, therefore, it was nothing but withholding the material evidence though in his possession and custody and, therefore, the Court should give a finding that entries with regard to residence and permanent place of residence must be of Navsari and, therefore, he has not produced the same. 18. Mr. Gandhi has further submitted that the story of joint name is disbelieved because there is already a submission on oath before this Court of late Shri Manibhai that long back he has separated from his brother. A story was also brought by the petitioner that Manibhai was blind and, therefore, he was rendering the services and residing in the suit premises. However, the same was also disbelieved because Manibhai had eye problem only in one eye and he was not blind and till last, he resided in the suit premises and the petitioner was not residing with him. He has, therefore, submitted that each and every piece of document is discussed and the contentions raised in the petition were not considered and some other documents produced at the appellate stage were not considered is wrong to his knowledge. Both the Courts below after going through the documents properly, the petitioner cannot be believed so far his case of residence in the suit premises is concerned. Mr. Gandhi, therefore, submitted that no interference is called for in the judgments and decrees passed by the Courts below and the Civil Revision Application deserves to be dismissed. 19. Mr. Gandhi, in support of his submissions, relied on the decision of the Apex Court in the case of Jaspal Singh vs. Additional District Judge, Buland Shahar and Others, (1984) 4 SCC 434 wherein it is held that tenancy right is non-transferable. After death of the original tenant, an outsider (tenant’s nephew), being not a member of the tenant’s family, cannot claim to be a ‘tenant’ on the ground of being an heir having acquired tenancy rights under a Will executed by the tenant. After death of the original tenant, an outsider (tenant’s nephew), being not a member of the tenant’s family, cannot claim to be a ‘tenant’ on the ground of being an heir having acquired tenancy rights under a Will executed by the tenant. Such a person is not entitled to benefits of regularisation of occupation. 20. Mr. Gandhi further relied on the decision of Allahabad High Court in the case of Kiran Tewari vs. Kailashendra Prasad and Others, 1984 (2) RCR 545, wherein it is held that if no one resided with deceased tenant at the time of his death, then building should be deemed to have ceased to be occupied by the tenant and it would be available for release to the landlord. That being so, in the instant case, since both the Courts below have come to the conclusion on a finding of fact that the petitioner was not residing with the deceased tenant at the time of his demise in the suit property, there was no question of transmission of tenancy under Sub-clause (i) of Clause (c) of Sub-section (1) of Section 5 of the Act. 21. After having heard the learned Counsels appearing for the parties and after having considered their rival submissions in light of the statutory provisions and decided case law on the subject and after going through the judgments and orders passed by the Courts below, the Court is of the view that both the Courts below are right and justified in passing and/or confirming the decree in favour of the plaintiff - landlord and directing the defendant to evict the suit premises and hand over the vacant possession to the plaintiff - landlord. The challenge to the maintainability of suit does not inspire the confidence of the Court and it is not tenable in the eye of law. The occupancy of suit premises by the defendant is based on the alleged transmission of the tenancy rights in his favour on the death of the deceased tenant. Thus, the relationship of landlord and tenant is the subject matter of dispute before the Court and the Rent Court is well within its jurisdiction to decide this dispute. The occupancy of suit premises by the defendant is based on the alleged transmission of the tenancy rights in his favour on the death of the deceased tenant. Thus, the relationship of landlord and tenant is the subject matter of dispute before the Court and the Rent Court is well within its jurisdiction to decide this dispute. Simply because the plaintiff - landlord has filed the suit against the defendant after paying the Court Fee stamp as required under the Rent Act does not mean that the plaintiff - landlord had accepted the defendant as tenant or that there is valid transmission of tenancy rights in his favour. 22. The real question before the Court was to decide as to whether the defendant was occupying the suit premises as tenant after transmission of tenancy rights in his favour on the death of the deceased tenant. There is no dispute about the fact that on the death of the original tenant, Kashiben, the tenancy rights are transmitted in favour of her husband, Manibhai. There is no dispute about the fact that Kashiben and Manibhai had no issue. The defendant is the nephew of Shri Manibhai. He does not fall within the qualified class of persons as envisaged in Section 5 (11) (c) of the Bombay Rent Act. 23. The next question which arose for Court’s consideration is whether the defendant was and whether he continued in occupation of the suit premises even at the time of death of deceased tenant. If the answer to this question is in affirmative, then and then only, the defendant is entitled to all the rights and subject to all the obligations under the Bombay Rent Act. There is concurrent finding of facts on this issue. Both the Courts below after proper appreciation of facts and evidence on record have come to the conclusion that the defendant was not residing in the suit premises. He was residing in Navsari and only to perform last rituals of the deceased tenant, he came to Ahmedabad and stayed in suit premises. When any particular finding of fact is arrived at by the Courts below after proper appreciation of evidence on record and it is concurrently held so by such competent Courts, it is very difficult for this Court to disturb the said finding while exercising its revisional jurisdiction under Section 29 (2) of the Bombay Rent Act. When any particular finding of fact is arrived at by the Courts below after proper appreciation of evidence on record and it is concurrently held so by such competent Courts, it is very difficult for this Court to disturb the said finding while exercising its revisional jurisdiction under Section 29 (2) of the Bombay Rent Act. Before disturbing such finding, the Court has to record that finding arrived at by the Courts below is perverse or it is based on non-application of mind to the relevant documents or irrelevant material or documents are taken into consideration. While considering the entire record and proceedings and evaluating the judgments and decrees passed by the Courts below on these parameters, it is not just and proper nor even warranted to record such finding by this Court. 24. In the above view of the matter, the Court is not inclined to interfere in the orders and judgments passed by the Courts below and hence the same are hereby confirmed. This Civil Revision Application is accordingly rejected. Interim relief, if any, granted earlier stands vacated. The defendant is directed to hand over vacant possession of the suit premises to the plaintiff - landlord within one month from today. The defendant is also liable to pay cost of proceedings before this Court as well as the proceedings before the lower Court to the plaintiff - landlord and he will bear his own costs.