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2012 DIGILAW 180 (BOM)

Damodar Shankar Deshpande v. Arvind Vasant Parkhe

2012-01-24

A.S.OKA

body2012
Judgment Heard the learned counsel appearing for the Applicants and the learned counsel appearing for Respondent Nos.1 to 3. The Applicants are the original Plaintiffs and the Respondents are the original Defendants. The Applicants are the landlords of the larger property more particularly described in paragraph No.1 of the plaint. It is their case that they have constructed two buildings known as Shiv Sadan and Shri Sidhivinayak Darshan. The suit premises is a premises admeasuring 270 square feet carpet area on the ground floor of the building known as Shiv Sadan. It is alleged that the father of the first Respondent Vasant was the monthly tenant of the Applicants in respect of the said premises. It is alleged that the said Vasant died on 30th January, 1989 leaving behind his widow Sudha, Respondent Nos.2 and 3 and a daughter. It is alleged that the widow of the original tenant died on 4th June, 1991. It is alleged that the Respondents are impleaded in the suit as the legal representatives of the deceased tenant. 2. It is alleged that the first Respondent along with his family has been staying from the year 1988 in a premises in a building known as Vijay Kunj more particularly described in paragraph 3 of the plaint. It is alleged that the second Respondent got married in the year 1985 and that she has been residing at her matrimonial house at Borivali, Mumbai since then. It is alleged that the third Respondent got married on 29th February, 1990. It is alleged that the widow of the deceased tenant, after marriage of the third Respondent, started residing at Borivali along with the second Respondent. It is alleged that the widow of the original tenant allowed the third Respondent and her husband to use the suit premises. It is alleged that on enquiry being made by the first Applicant with the original tenant's wife, it was realized that the third Respondent came to the suit premises only for the purpose of delivery of her child. It is alleged that the third Respondent is serving as a Lecturer at Khade Junior College, Shahpur in District Thane and that she has acquired a premises at Shahapur. Therefore, the allegation of acquisition of suitable residence by the Respondents has been made in the plaint. 3. It is alleged that the third Respondent is serving as a Lecturer at Khade Junior College, Shahpur in District Thane and that she has acquired a premises at Shahapur. Therefore, the allegation of acquisition of suitable residence by the Respondents has been made in the plaint. 3. The case made out in the plaint is that the second Applicant requires the suit premises for herself for residential use as she has been residing in the rental premises in an old chawl known as Amrut Niwas at Dombivli. It is contended that the area of the said premises is 200 square feet and the same is unhygienic and inconvenient. Therefore, possession was sought on the grounds of acquisition of suitable residence and the bona fide need of the second Applicant. The suit was contested by the Respondents. It was contended that the first Respondent had made a temporary arrangement for accommodating the members of his family. The allegations regarding acquisition of suitable residence were denied. The case of bona fide need of the second Applicant was also denied. It is alleged in the written statement that the first Applicant has constructed a new building and has let out number of tenements to some of the tenants and has retained few tenaments. It is alleged that the said tenaments have been kept locked. 4. After the parties adduced evidence, the Trial Court held that the grounds of acquisition of suitable residence and bona fide need have not been proved. An Appeal was preferred by the Applicants before the District Court. The Judgment and decree passed by the Trial Court has been confirmed in Appeal. 5. The first submission of the learned counsel appearing for the Applicants is that the first Respondent is not the tenant and being the legal representative of the original tenant he has been impleaded as a party. He submitted that the fact of acquisition of suitable residence by all the three Respondents is duly established. He invited the attention of the Court to the oral evidence of the parties. As far as the bona fide need is concerned, he submitted that in the building in which the suit premises is situated, there is no accommodation available to the second Applicant. He invited the attention of the Court to the oral evidence of the parties. As far as the bona fide need is concerned, he submitted that in the building in which the suit premises is situated, there is no accommodation available to the second Applicant. He submitted that the finding regarding availability of the premises to the Applicant by the Courts below are perverse in as much as the said premises are available in another building which was constructed 5 to 6 years before the institution of the suit. He submitted that even assuming that the two tenants in the said building have vacated the tenaments in their respective possession, that will not eclipse the bona fide need of the second Applicant. He submitted that there is no need to doubt the bona fide need. He has placed reliance on the decision of this Court in the case of Suresh @ Suryakant Ramchandra Chonkar Vs. Bhikaji Bhagat Redkar, decided on 3rd December, 2008. 6. The first issue is regarding the bona fide need. The bona fide need is pleaded only of the second Applicant on the ground that she is residing in a rented premises which is inconvenient and old. It is alleged that her family consists of four members. 7. The Courts below have considered the oral evidence on record. As far as this aspect is concerned, it will be necessary to make a reference to the written statement in which a specific contention was raised that a new building has been recently constructed by the Applicants. It is pertinent to note that in the plaint itself there is an averement that there are two buildings on the same property by the name Shiv Sadan and Sidhivinayak Darshan. In the evidence, the Applicant No.4 admitted that the Sidhivinayak Darshan building was constructed in the year 1983-1984 consisting of five floors. She admitted that there were four blocks on the upper floors. She also admitted that there were two blocks and four shops on the ground floor of Siddhivinayak building. She admitted that a room on the terrace of the said building was in possession of the Applicants. In the cross-examination it was further admitted that one Lohagaonkar was in possession of the premises on fourth floor in Siddhi Vinayak Darshan Building. The witness admitted that the said Lohagaonker was a new tenant and before him there was another tenant. She admitted that a room on the terrace of the said building was in possession of the Applicants. In the cross-examination it was further admitted that one Lohagaonkar was in possession of the premises on fourth floor in Siddhi Vinayak Darshan Building. The witness admitted that the said Lohagaonker was a new tenant and before him there was another tenant. She also admitted that on the ground floor of the Siddhi Vinayak Darshan Building a tenant by name Kulkarni has been inducted. She stated that there was one tenant by name Sangoram. She also admitted that number of tenants were not residing in their respective premises in Siddhi Vinayak building. Thus, what is brought on record is that the building Siddhivinayak Darshan was constructed in the year 1983 1984 and the fact that during the pendency of the proceeding, there was a change of tenancy at least in respect of one residential premises in the said adjoining building. It is pertinent to note that though the plaint refers to the building Siddhivinayak Darshant, there are no averments made in the plaint regarding non availability of the premises in the said building. In fact, after having pointed out the existence of the said building, the Applicants should have disclosed the total accommodation in their possession. Thus, nearly seven years before filing the present suit on the ground of bona fide requirement, a new building was constructed by the Applicants on the same property and number of residential premises therein were let out to tenants. All this militates against the bona fide need of the Applicants. In the circumstances, it is not possible to find fault with the findings of Courts below on the issue of bona fide need. 8. As far as the acquisition of suitable residence is concerned, the findings recorded by the Courts below will have to be considered. The Appellate Court has observed that the second and third Respondents are happily married and are residing in their respective matrimonial houses. It must be noted here that after observing that the second and third Respondents are residing in their respective matrimonial houses, the Appellate Court simply observed that they have acquired suitable residence. The fact that the second and third Respondents are residing in their respective matrimonial houses is not sufficient to say that they have acquired the said premises. It must be noted here that after observing that the second and third Respondents are residing in their respective matrimonial houses, the Appellate Court simply observed that they have acquired suitable residence. The fact that the second and third Respondents are residing in their respective matrimonial houses is not sufficient to say that they have acquired the said premises. The allegation of acquisition of suitable residence cannot be held as proved unless it is proved out that the matrimonial homes are acquired by the second and third Respondents themselves. 9. The first Respondent deposed before the Trial Court. He stated that the premises on the second floor of the building Vijay Kunj was his temporary accommodation. He stated that the premises was used by him for taking rest in the night. As far as the area in possession of the first Applicant in the said building is concerned, there is no evidence adduced on record. There is no evidence in what manner the said premises was acquired. The evidence shows that the first Respondent has surrendered the said premises. 10. Therefore, the Courts below have concurrently held that there is no acquisition of suitable residence. The decision in the case of Suresh @ Suryakant Ramchandra Chonkar (Supra) is in the facts of the case before this Court wherein only the first Defendant in the said case was recognized as a tenant. In the present case, there is no evidence even to show that only the first Respondent is the tenant. On the contrary, the contention before this Court raised by the learned counsel appearing for the Applicants is that the second and third Respondents were the tenants who are at present residing in their respective matrimonial homes. 11. Hence, no fault can be found with the concurrent findings of fact on the issue of acquisition of suitable residence. There is an additional affidavit filed by the first Respondent to which a reply is filed by the Applicants. The additional affidavit is filed by the Respondent is for bringing on record that some of the tenants vacated flats in their possession which have been let out to the third parties. However, this Court has not considered the assertions made in the affidavit. 12. There is no merit in the Revision Application and the same is accordingly dismissed with no order as to costs.