RAMCHANDRA MAHADEV Vs. PADMAKAR BALKRISHNA SAMANT

JUDGEMENT

(1.) THIS writ petition under Article 227 of the Constitution of India has been filed by the original plaintiff who claims to be the sub tenant in respect of the suit structure, challenging the judgment and order dated 2-6-1987 passed by the Appellate Bench of the Small Causes Court at Mumbai in Appeal No. 439 of 1977.

(2.) THE premises in question is situated in property known as Samantwadi, Goregaon, Mumbai 63. The respondents are the owners in respect of the said land. Some time in the year 1955 the respondents had let out open piece of land to one Prabhunath Pandey. It is stated that the said Prabhunath Pandey constructed a structure on the said land which was subsequently let out to the petitioner herein. The respondents filed the suit against the said Prabhunath Pandey for possession of the land in question. It appears that the said suit, which was filed in the year 1962, against Prabhunath Pandey, came to be decreed and the said decree was put in execution on August 10, 1966. The petitioner herein caused obstructions for which the respondents took out Obst. notice for removing obstruction caused by the petitioner. In the said Obst. proceedings the Rent Court granted time to the petitioner to file a declaratory suit and the Obst. Proceedings were thus disposed of. Pursuant to the liberty granted by the Rent Court, the petitioner filed a suit before the Small Causes Court being RAE Suit No. 2934 of 1968. The stand taken by the petitioner in the said suit is that he was in exclusive possession of the suit premises since the year 1955, which were let out to him by Prabhunath Pandey who was the original tenant of the respondents herein. According to the petitioner he was paying regular rent to the said Prabhunath Pandey from time to time. In the circumstances, the petitioner contended that since he was the sub tenant of Prabhunath Pandey, prior to May 1959, in view of the Ordinance of 1959 his possession in respect of the suit premises is protected and on determination of the tenancy of Prabhunath Pandey the petitioner has become direct tenant of the respondents. In the said suit both the parties adduced oral and documentary evidence. After considering the record the lower Court was pleased to declare that the petitioner had become direct tenant of the respondents in respect of the suit premises and consequently restrained the respondents from executing the decree passed in RAE Suit No. 5493 of 1962.

(3.) BEING dissatisfied by the said decision the respondents preferred an appeal before the Appellate Bench of the Small Causes Court, Bombay. The Appellate Court was pleased to observe that the trial Court having concluded that the original tenant Prabhunath Pandey had taken the open land from the respondents, it was not open for it to hold that the petitioner was the sub tenant of the suit structure. The Appellate Court referred to the decision of this Court reported in (A. I. R. 1973 Bombay 220), which has been followed in the later decisions. After having considered the facts and the settled legal position the Appellate Court held as follows :