FATMABIBI USMAL PATEL Vs. MANGUBEN PRANBHAI THAKKAR

JUDGEMENT

(1.) The landlord is the appellant before us. He obtained a decree for eviction in a suit for possession and compensation in the trial court. That success was confirmed in the court of appeal. The writ petition under Article 227 the concurrent findings of the courts below were set aside, consequently the decree was set aside. Therefore, he has come up in appeal.

(2.) The grounds of eviction were two (i) under Section 13 (1) (b) and (ii) for personal use. We may at once state that the latter ground came in after the present landlord came to purchase the property from the previous landlord under whom the appellants were themselves tenants. Presently Mr V. M. Tarkunde submits under Article 227 that the High court was not empowered to upset the factual findings. Such a jurisdiction could be exercised only if there was an error apparent on the record not even the error of fact but an error of law. That is not so here. In this case the tenant has put up permanent structures that too without the consent of the landlord. If that be so, it should entail eviction under Section 13 (1 (6 unless there is a valid defence. Such a defencehad been negatived by the trial court as well as the first appellate court. The high court held that the previous landlord ought to have been examined to know the nature of the permanent structure. That was not even the plea of the tenant. Therefore, the High court was not justified in making out a special case for the tenant.

(3.) As regards the bona fide need having regard to the fact that the members of the family, all of them wanted to start a business, that plea was made out. Though the previous landlord did not ask for such a relief having regard to the fact that the property came to be purchased by the present landlord, such a plea ought to have been entertained by the High court.