JAGJIVANBHAI Vs. MUKUNDLAL

JUDGEMENT

(1.) The petitioners-original defendants have preferred this revision application under Sec. 29(2) of the Bombay Rent Act against the judgement and decree for possession of the suit premises. The lower appellate court has confirmed the decree for possession on two grounds, namely : (1) change of user i.e. godown to business; and (2) subletting by petitioner No. 1 to petitioner No. 2. The lower courts have held that as per the rent note Ex.36 dt. 13-3-1956, the suit premises were let as a Vakhar (godown) whereas they are being used for the purpose of business of blacksmith by installing a 'bhathi' and chimney. As regards subletting also, the rent note is relied which is in the name of petitioner No. 1 Jagjivanbhai alias Bhikhabhai Ramji, and petitioner No.2 Chaturbhai Chhaganlal is proved to be in possession and, therefore, the transfer or subletting is held to have been proved.

(2.) The learned Counsel for the petitioners- original defendants has submitted that the rent note in the name of petitioner No. 1- Jagjivanbhai Ramjibhai was really for joint family and Chhaganbhai is the common ancestor who had two sons - Ramjibhai and Chaturbhai. Chaturbhai is petitioner No. 2 and Ramji's son Jagjivanbhai is petitioner No. 1. Right from 1956 when the rent note executed for a period of 12 months, both the petitioners had been jointly running the business of blacksmith as a joint family business and rent was being paid up out of the income of the said business and, therefore, there is no question of any subletting and the lower courts have failed to appreciate that the petitioners Nos. 1 and 2 are not strangers to each other, but are members of the joint family running a joint family business since 1956. Similarly, regarding change of user, it is submitted that right from the commencement of the tenancy, the business of blacksmith is being run by the petitioners and there are findings of the lower courts to that effect. The lower Courts have not addressed themselves to the crucial question as to since when the alleged subletting and change of user have taken place. If the lower courts had addressed themselves to this crucial question, the lower courts would not have come to the conclusion that there was any subletting or change of user and, therefore, the findings of the lower courts are without proper perspective and are actually against the evidence on record and that these findings are perverse.

(3.) On behalf of the opponent-landlord, it is submitted that both the courts below have on appreciation of evidence given the findings on facts supported by evidence that there is subletting as well as change of user and on both these grounds, the landlord is entitled to the decree for possession and, therefore, there is no question of High Court exercising any revisional power to set aside such finding of fact and decree for possession based thereon. It is submitted that admittedly, the rent note is in the name of defendant No. 1 only and now the defendant No. 2 has come to be in exclusive possession and, therefore, the burden is on the defendants to prove that there is no subletting and he has failed to discharge that burden. Therefore, the finding of subletting given by the lower Court is unassailable. Similarly, there is no evidence regarding existence of a joint family and, therefore, all these findings of facts cannot be disturbed in the revision application. Let us consider the rival contentions.