VASANTH GURURAO DESAI Vs. NABHIRAJ PADMAPPA KUNDER

JUDGEMENT

(1.) Though this matter is listed for orders today, I have heard learned advocates for final disposal.

(2.) This petition is filed by the owners who have obtained an eviction decree in H R.C. No. 185/1972. Petitioners are brothers. In the said proceedings, parties entered into a compromise on 16-7-1975, and in terms of the said compromise, a decree was passed. Thereafter, the tenant filed civil suit and obtained temporary injunction restraining the owners from obtaining possession. On 25-11-1977, after the injunction was dissolved, the landlords executed the decree and obtained possession on 27-11 -1977. The tenant- petitioner has filed this petition on 25-11-1978, complaining that the landlords after obtaining possession have failed to occupy the premises and therefore he may be permitted to re-enter the permises under Sec. 25 of the Rent Control Act. The case of the landlords was that they have been in possession of the premises and one of their friends is residing there. The court appointed a commissioner who inspected the spot and found that opponent-4 was occupying the premises. When enquired, opponent-4 admitted that he was a friend of the landlords who had permitted him to occupy. The commissioner had reported that opponent-4 was using the kitchen room in the first floor and he found certain utensils. Prima facie this report establishes that opponent-4 was a friend of the landlords who has occupied the premises. The case put forward by the tenant who sought re-entry under Sec. 25 was that the landlords after obtaining possession, have not occupied the premises but leased it to opponent-4. There is no evidence to substantiate this ground nor opponent-4 admits that he was permitted to occupy the premises as a tenant. In the absence of any evidence it is not possible to accept that opponent-4 was in possession of the premises, as a tenant.

(3.) The courts below have held that the landlords have not occupied the premises, in the sense, they are not actually living in the premises making use of the same. The courts below have held that the landlords after obtaining possession, have kept a portion of the premises under lock and they have allowed respondent-4 to occupy some portion. According to court below, the landlords have not occupied the premises, as such, the tenant has a right of re-entry.