SHAH OCHHAVLAL MOTILAL Vs. KANSARA DHANLAXMI BECHARLAL

JUDGEMENT

(1.) This Revisional Application by the original defendants is directed against the decree for possession of the rented premises on the ground of non-user under Section 13 (1) (k) of the Bombay Rent Act. The suit was filed on several grounds including the personal and bonafide requirement arrears of rent and non-user. All the other points have been negatived and only on the ground of non-user the decree has came to he passed.

(2.) The claim of the plaintiff is that the suit property was let to the second defendant (petitioner No. 1) prior to 1950 and that suit premises have not been used at all from 1964 to 1971. The suit was filed on 2nd December 1971 Both the courts have held that the plaintiff is entitled to a decree for possession on the ground of non-user of the suit premises by the tenant.

(3.) The learned counsel for the petitioners-original defendants (father and son) has submitted that the finding of the lower courts is illegal and contrary to evidence on record and the onus is on the plaintiff to prove non-user within the period of six months immediately prior to the filing of the suit. On the other hand the learned counsel for the respondent-original plaintiff has submitted that both the courts have given concurrent finding of fact on the question of non-user and come to the conclusion that the defendants have not used the suit premises from 1964 to 1971 and have rightly passed a decree for possession on that ground. It is further submitted that under Section 29 (3) of the Bombay Rent Act there is no ground ma de out for interference in Revision. It is submitted that the findings of the lower court are based on appreciation of evidence and the lower courts have not believed the evidence led by the defendants and therefore this finding of fact is not required to be disturbed.