KAMRUNISHA NOORMIYA SHAIKH Vs. MUSLIMUDDIN SADRUDDIN DARGAHWALA

JUDGEMENT

(1.) THIS revision is preferred against the judgment and order passed by the learned District Judge, Navsari in Regular Civil Appeal No.54/2000 dated 28.03.2005 whereby, the said appeal is dismissed and the judgment and decree passed by the learned 2nd Jt. Civil Judge (S.D.), Navsari in Regular Civil Suit No.170/1992 dated 16.03.2000 was confirmed.

(2.) THE facts in brief are that the respondent, original plaintiff, had let the open land bearing City Survey No.80, Tika No.3380 of City Navsari, ad-measuring 35'x12', to the appellant, original defendant, on a monthly rent of Rs.15/-. THE respondent-plaintiff preferred suit being Regular Civil Suit No.170/1992 before the trial Court inter alia contending that the appellant-defendant has purchased a new property in the name of his wife and that he is residing at the said new residential accommodation along with his family and therefore, the respondent-plaintiff is entitled for possession u/s.13 of the Bombay Rents, Hotels and Lodging House Rates Control Act. In the said suit, the appellant-defendant filed written statement at Exhibit-17. After considering the evidence on record, the trial Court partly decreed the suit in favour of the respondent-plaintiff by passing decree u/s.13(1)(l) of the said Act only.

(3.) IT appears from the evidence on record (Exhibit-109) that appellant-defendant executed a rent-note in favour of the landlord on 01.06.1978 wherein, he has given assurance that the property let to him shall be used for the residential purpose of his family. IT is not the case of the appellant-defendant that he has shifted to the new premises and that the suit property is occupied by his dependants. IT is the case of the respondent-plaintiff that the appellant-defendant stopped the use of the suit property since 19.06.1989. The appellant-defendant has denied the said fact but, the evidence on record shows that after the new residential property was purchased by the appellant-defendant at Sai Krupa Society, the appellant shifted to the said new property along with his entire family and that no one is residing in the suit premises. The document at Exhibit-112 is the copy of the Notice dated 27.08.1991 issued by the plaintiff to the defendant at the new residential address of the defendant, which was duly served upon the defendant and the acknowledgment receipt thereof, duly signed by the defendant, has been produced on record at Exhibit-113. The Voters' List at Exhibit-128 also shows the address of the defendant and his family members at the new residential house. The Voters' List for the year 1993 produced at Exhibit-126 does not reflect the names of the defendant and his family members as the voters residing in the suit property. Considering the documentary evidence on record, it is established that neither the defendant nor any of his dependants reside in the suit property. IT is also established from the cross-examination of the defendant that he had also purchased another property at Alif Nagar, where his brothers are residing.