RADHABAI BAPURAO SHELAR Vs. TRIMBAK MADHAVRAO SHIROLE

JUDGEMENT

(1.) This petition field under Article 227 of the Constitution of India raises an interesting question as to whether successor-in-title of lessor can institute proceedings under Section 13(1)(a) and (b), of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as the "Act") against lessee for the breaches committed prior to the date of accrual of interest. The petition has been referred to the Division Bench by Shri Justice Desai by reasoned order dt. July 22, 1980 as it was felt that the decision of the single Judge in the case of Shantinath S. Ghongade v. Rajmal Uttamchand Gugale requires reconsideration. It was felt that the propositions enunciated in that case were framed in language much wider than was necessary by the facts of the case.

(2.) To appreciate the question involved in the petition, it is necessary to set out the relevant facts. The property in dispute consists of five rooms in addition to a bath-room in House No. 1178/1, Shivaji Nagar, Poona. The suit property originally belonged to one Anandrao Shirole, the uncle of the present respondents Nos. 1 and 2. The property was leased in favour of the predecessors of the petitioners, Radhabai in the year 1962 at an agreed rent of Rs. 30/- per month in addition to education cess. Anandrao Shirole died on November 5, 1965 leaving behind a Will under which the suit property was bequeathed to respondents Nos. 1 and 2. The respondents Nos. 1 and 2 obtained the probate and thereafter terminated the tenancy of the lessee by notice dated January 8, 1966. The respondents claimed that the tenant had committed defaults in payment of rent and is also guilty of erecting a permanent structure without the prior consent of the landlord. The respondents also claimed that the tenant was guilty of damaging the property and the conduct of the tenant caused nuisance to the adjoining occupiers. The tenant on receipt of notice instituted Miscellaneous Application No. 102 of 1966 in the Court of the Small Causes at Poona for determination of the standard rent as provided by Section 11(3) of the Act. The respondents Nos. 1 and 2 filed Regular Civil Suit No. 3034 of 1969 in the Court of Small Causes at Poona on October 9, 1969 for recovery of possession . Several grounds like default in payment of rent, change of user, erection of permanent structure, nuisance and trespass were set out in the plaint in support of the claim for recovery of possession. The trial Court, after recording evidence, came to the conclusion that the respondents are entitled to a decree for possession as the requirements of the provisions of Section 13(1)(b) and (c) of the Act were proved. The trial Court found that the tenant had removed the roof of one room and had raised the height of the wall by using bricks with lime and mortar. The trial Court noticed that the tenant had erected a fresh roof, constructed the steps and has done regular flooring. The room so constructed was used by the tenant for the purpose of his residence and such construction was clearly a permanent structure, erected without the landlord's permission. The trial Court also found that the tenant was guilty of conduct which is a nuisance or annoyance to the adjoining occupiers. The other grounds set out by the landlord under Sections 12 and 13 of the Act were held not proved. The tenant carried and appeal before the District Court, Poona, but the learned Extra Assistant Judge, by his judgment dt. October 10, 1975, dismissed the appeal. The lower appellate Court concurred with the finding of the trial Court that the landlords have established the requirements of Section 13(1)(b)(c) of the Act and also held that the landlords are entitled to a decree under the provisions of Section 13(1)(a) of the Act as the tenant has committed an act contrary to the provisions of Clause (Court) of Section 108 of the Transfer of Property Act. The original tenant having died during the pendency of the appeal before the District Court, the legal representatives have filed this petition to challenge the decree of eviction.

(3.) As the entire petition is referred to the Division Bench, it is necessary first to consider the contention of the petitioners that the decree of eviction under S. 13 (1)(a) and (b) of the Act is not in accordance with evidence on record. S. 13(1) (b) of the Act provides with notwithstanding anything contained in the Act, a landlord shall be entitled to recover possession of the premises if the Court is satisfied that the tenant has, without landlord's consent given in writing, erected on the premises any permanent structure. Both the Courts belows have concurrently found that the tenant had erected a permanent structure without the prior consent of the landlord and that being a finding based on appreciation of evidence cannot be disturbed in exercise of the writ jurisdiction. Apart from this consideration, we find that there is ample material on record to hold that the tenant ahd constructed a permanent structure. As mentioned hereinabove, the tenant had removed the roof and had erected the walls built in bricks with lime and mortar and a fresh roof was constructed and steps were provided for approaching the room. The Commissioner appointed by the trail Court found that the newly constructed structure was not merely a loft as claimed by the tenant but was a room used for the purpose of residence. The two courts below also recorded a finding, based on appreciation of evidence, that the consent of the appellants was never obtained prior to the erection of the structure. On the other hand, the evidence unmistakably indicates that Anandrao ahd protested against the construction and ahd threatened to commence proceedings but was unable to do so because of the illness which confined him to the hospital for a period of three to four months prior to his death. In our judgment, the conclusion recorded by the two Courts below is in accordance with evidence on record and requires no interference.