DAULU BALU Vs. APPASAHEB BABURAO PATIL

JUDGEMENT

(1.) THIS Writ Petition under Article 227 of the Constitution of India takes exception to the order passed by the II Additional District Judge, Thane, dated Sept. 7, 1988 in Regular Civil Appeal No. 246 of 1982.

(2.) THE predecessor of the present Petitioners was the tenant in respect of Plot No. 10, out of CTS No. 459/1 and 459/2 admeasuring 42 feet towards east- west and 15 feet towards south-north situated at Maruti Road, Thane (East). The said plot was originally owned by Ganpati Sansthan. The predecessor of the Petitioners was inducted as tenant on monthly tenancy basis at the rate of Rs. 18/- per month in the year 1953. It is not in dispute that a suit was filed by the erstwhile owner Ganpati Sansthan against the original tenant- predecessor of the Petitioners herein for possession. The suit bearing Regular Civil Suit No. 72 of 1958 was finally compromised. Under the said compromise, the tenant, predecessor of the Petitioners, handed over possession of the suit property to the said Ganpati Sansthan original owner. It is the case of the Respondents herein that, after possession was obtained from the tenant, the plot was leased out to the predecessor of the Respondents Appasaheb Baburao Patil, who in turn allowed the predecessor of the Petitioners to occupy the same as sub-tenant since 1958. The case of the Respondents is that on 22nd May, 1974, the erstwhile owner Ganpati Sansthan by registered sale-deed sold the plot in question in favour of the original plaintiff and since then became the owner of the suit premises. The predecessor of the Respondents-plaintiffs, in the circumstances, gave suit notice to the predecessor of the Petitioners on 24th January 1976 terminating the tenancy on the ground of arrears for more than six months and demanding the arrears of the period upto February 1976. It is also not in dispute that the said notice was received by the predecessor of the Petitioners on 31st January 1976. It is also not in dispute that the original tenant predecessors of the petitioner neither offered the demanded amount nor raised dispute regarding standard rent within one month from the date of receipt of the suit notice. In that sense, the case is clearly covered by the Section 12(3)(a) of the Bombay Rent Act. however, the defence of the predecessor of the Petitioners was that the original Plaintiff was not the owner in respect of the suit property and in any case there was no attornment in favour of the plaintiff so as to entitle him to claim possession on the ground of the default against the tenant. The Courts below after examining the evidence on record negatived the defence taken on behalf the predecessor of the Petitioners. The trial Court took the view that no doubt the predecessor of the petitioners was tenant of Ganpati Sansthan but the said relationship of landlord and tenant between them inter-se was snapped by execution of the consent decree between them in Regular Civil Suit No. 72 of 1958, under which decree the tenant handed over possession in favour of Ganpati Sansthan. The Trial court has further held that Ganpati Sansthan thereafter executed lease in favour of the original Plaintiff and the Petitioners' predecessor was allowed to occupy the suit property as his sub-tenant. Later on, the Plaintiff has purchased the suit property by registered sale-deed in the year 1974; and, therefore, became owner thereof and was entitled to claim possession on the ground of default especially when the tenant failed to offer the rent or raise any dispute regarding Standard Rent within one month from the date of receipt of the suit notice. Against this decree, the tenant preferred Appeal before the District Court which has been dismissed by an order dated Sept. 7, 1988. In other words, both the Courts below have concurrently held that the tenant was in default for more than six months and became liable to be evicted within the meaning of Section 12 of the Bombay Rent Act. The other ground prayed on behalf of the Plaintiff is of bonafide reasonable requirement has, however, been negatived by the Courts below and that is not the subject matter of the present Writ petition.

(3.) WHEN the Counsel for the Petitioners was confronted with this position, he contends that the Plaintiff has obviously failed to establish in evidence that the Suit property was leased out in his favour in the year 1958 by Ganapati Sansthan. However, this submission is advanced for the first time before this Court. On the other hand, both the Courts below have concurrently found on the basis of the evidence on record that the suit property was leased out in favour of the Plaintiff by Ganpati Sansthan in the year 1958 after the defendant-tenant had handed over possession under compromise decree in RCS No. 72 of 1958. In this view of the matter, it is not possible to entertain the argument advanced on behalf of the petitioners that no lease was executed in favour of the Plaintiff by Ganpati Sanshtan. The learned Counsel has not pointed out any document or any evidence on record to support this submission, except relying upon a plea taken on behalf of the defendant as reproduced in para 3 of the Judgment of the trial Court that the defendant has denied that the plaintiff has taken the suit house on lease basis from Ganpati Sansthan in the year 1960 at the rate of rent of Rs. 18/- per month. Both the Courts below have considered materials placed on record and then concluded that Ganpati Sansthan had leased out the suit property in favour of the plaintiff after obtaining the possession thereof from the defendant-tenant under compromise decree. In the circumstances, it is not possible to interfere with the concurrent finding so recorded by two Courts below on this aspect of the matter.