SAYYAD DAGADU KARIM Vs. R C RODRIGUES

JUDGEMENT

(1.) THIS writ petition under Article 227 of the Constitution of India takes exception to the judgment and decree passed by the District Judge, Nashik dated 27th July, 1988 in Civil Appeal 452 of 1981.

(2.) THE respondent Nos.1 to 3 herein are the landlords in respect of the premises admeasuring 15 x 12ft. in House No.49, situated at Rest Camp Road, near Devi Mandir, Deolali Camp, Nasik. The said respondents instituted suit against the original respondent No.4 who was impleaded as defendant No.1 in the said suit for possession of the suit premises. The petitioner herein was also impleaded in the said suit as defendant No.2. According to the plaintiff the original respondent No.4-defendant No.1 was inducted in the suit premises as tenant sometime in 1970 on monthly rent basis. The petitioner herein was the son in law of the original respondent No.4 who is since deceased. According to the plaintiffs, the defendant No.1 as well as defendant No.2 being his son-in-law, occupied the suit premises. It is further alleged that the petitioner herein-original defendant No.2 was unlawfully inducted by the respondent No.4 (defendant No.1) as sub-tenant. Besides the ground of unlawful subletting, the suit was also instituted on the ground of default committed by the tenant within the meaning of section 12 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred as the Bombay Rent Act). It is not necessary to burden this judgment with other details except to point out that in that suit the defendant No.2 petitioner herein filed written statement and took specific plea that he was the tenant in respect of the suit premises and rent receipt was got issued in the name of defendant No.1 only as a matter of convenience between the parties and that the plaintiff No.1 had no objection for petitioner occupying the suit premises. In other words, the stand taken in the written statement is that the petitioner-defendant No.2 was the tenant in respect of the suit premises and not defendant No.1-respondent No.4 herein. The parties went for trial and the courts below have neither accepted the case as set up by the plaintiffs against the petitioner-defendant No.2 of being unlawful sub-tenant, nor the case pleaded by the petitioner-defendant No.2 that he was tenant in respect of the suit premises. The Appellate Court in the impugned judgment has, however, observed that the occupation of the suit premises by the petitioner was in the nature of a gratuitous licensee. The Appellate Court decreed the suit in favour of the plaintiffs on the ground of default committed by the tenant-defendant No.1 within the meaning of section 12 of the Bombay Rent Act. It is this decision which is the subject- matter of challenge before this Court under Article 227 of the Constitution of India.

(3.) HOWEVER , to my mind, if the findings of facts recorded by the courts below are closely examined, it would appear that the courts below have positively held that the petitioner-defendant No.2 was neither a tenant nor a sub tenant in the suit premises. The Appellate Court on analyzing the evidence on record has, however, returned a clear finding that the respondent No.4-defendant No.1 was accepted as tenant by the plaintiffs. The Appellate Court has adverted to the evidence of defendants' witness which clearly establishes the position that the plaintiffs were not willing to accept the petitioner-defendant No.2 as their tenant and the parties were fully ad idem that the tenancy was created only in favour of respondent No.4-defendant No.1. In the wake of this finding of fact recorded by the courts below, it necessarily follows that the defendant No.1 was the tenant in the suit premises and occupation by the defendant No.2-petitioner was only being his family member. If that be so, since the defendant No.1 has not questioned the decree passed in respect of the suit premises against him, the present petitioner who is incidentally his son in law and merely because he is occupying the suit premises would not become entitled to question the correctness of the decree so passed against the tenant.