PANDI BANDU WANI Vs. SAPADU KRISHNA WANI

JUDGEMENT

(1.) THIS writ petition under Article 227 of the Constitution of India takes exception to the judgment and decree passed by the Additional District Judge, Nasik dated 8-2-1988 in Regular Civil Appeal No. 101 of 1984.

(2.) THE premises in question are CTS No. 1730 at Satara, District Nasik. The said property was originally owned by one Gopikabai wife of Vishnu Wani. Out of the said property, the entire western and middle portion was let out to the predecessor of the petitioners herein namely, Bandu Ramji Wani, by the said Gopikabai at monthly rent of Rs. 8/- for the purpose of residence and business of storage of grocery goods. This fact is not in dispute as the parties have contested the matter on that basis and it has been so stated in paragraph 1 of the writ petition before this Court.

(3.) THE respondents on the other hand claim to have become owners in respect of the suit premises by virtue of the Will executed by deceased Gopikabai on 30-7-1971 bequeathing the suit property in favour of their predecessor Shri Hari Krishna Wani. According to the respondents the said Gopikabai expired on 31-7-1971 whereafter the said Hari Wani and now the respondents have become the owners of the suit property. On that premise, the said Hari Krishna Wani determined the tenancy of the tenant in respect of the suit property by giving notice dated 27-3-1974. That notice was replied by the tenant on 12-4-1974. Subsequently the said Hari Krishana Wani predecessor of the respondents herein, who had become owner under the said Will expired and, therefore, the original respondents Sapadu Krishna Wani and legal heirs of Hari Krishana Wani instituted suit for possession of the suit property against the petitioners being Regular Civil Suit No. 78 of 1979 in the Court of Civil Judge, J. D. Satara. In the said suit, the relief of possession was sought on the ground of default, bona fide and reasonable requirement, change of user, and tenant having erected permanent construction unauthorizedly. This suit was resisted by the tenant. Specific plea was taken by the tenant that the plaintiffs were not the owners of the suit property. The tenant questioned the ownership of the plaintiffs on the ground that he had no knowledge about the execution or existence of the Will. Accordingly, the parties proceeded with the trial. The plaintiffs caused to examine the scribe of the Will as well as the attesting witnesses and the beneficiary Dattatraya Jagannath, so as to counter the claim set up by the tenant-petitioners that no such Will was in existence and they had no knowledge about that document. Besides that, the parties adduced evidence on other issues relating to grounds pressed into service for possession. The trial Court by judgment and decree dated 21-1-1984 decreed the suit in favour of the plaintiffs by holding that the plaintiffs proved that they have become the owners of the suit house by virtue of the Will made by Mrs. Gopikabai original landlady. The trial Court has however, negatived the ground of default and answered the same against the plaintiffs. The trial Court on analyzing the materials on record has taken the view that the plaintiffs have established the need pressed into service being reasonable and bona fide. Even the issue of comparative hardship has been answered against the defendants and in favour of the plaintiffs. The trial Court has also answered the issue that tenant having erected permanent construction in the suit house illegally but only in regard to the flooring and of erecting a wall. Accordingly, the suit came to be decreed for the aforesaid grounds against the defendants and in favour of the plaintiffs. The petitioners herein therefore carried the matter in appeal before the District Court being Regular Civil Appeal No. 101 of 1984. Even the appeal has been dismissed by the Appellate Court. It is not in dispute that the plaintiffs filed cross-objection before the District Court and both the appeal as well as cross-objections were heard together and the same were dismissed. In other words, the Appellate Court has affirmed the findings of fact recorded by the trial Court on the relevant issues namely that the plaintiffs have proved that they have become owners of the suit house by virtue of the Will made by Gopikabai as well as on the issue of need of the plaintiffs was reasonable and bona fide and that comparative hardship will be caused to the plaintiffs if the decree was to be refused. The Appellate Court has also affirmed the finding of fact recorded by the trial Court on the issue of unauthorized permanent construction erected by the tenants in the suit house. It is against this concurrent findings of fact, the present writ petition has been filed.