YOGESH DATTARAM PATHAK Vs. SHRIKRISHNA SHRIRAM JOSHI

JUDGEMENT

(1.) THIS writ petition, under Article 227 of the Constitution of India, takes exception to the order passed by the Additional District Judge, Pune dated December 31, 1990 in Civil Appeal No. 566 of 1988. The premises in question consist of four rooms situate at Survey No. 1418/b Sadashiv Peth, Pune-30. The Respondent is the monthly tenant in respect of the suit premises. The suit building was originally owned by the joint family of which the Petitioner was a coparcener. The said property was partitioned some time in 1976 and, the suit premises came to the share of the Petitioner, whereas the portion of that property bearing property No. 1418a went to the share of the Petitioner's brother, Ajay. Necessary entries have been incorporated in the relevant revenue records and City Survey record in that behalf, in 1979. At the relevant time, however, petitioner was minor and the suit property was managed by his father as his guardian. When the Petitioner became major in 1985, he started managing his property being CTS No. 1418b. It is the case of the petitioner that after the partition, the family members started staying separately and that at the relevant time (in or around 1986) the petitioner was staying in the attic portion of the building which was hardly a room with three sides covered by tin shed. According to the Petitioner, since the Petitioner felt the requirement of the suit premises for his personal use and occupation, therefore, instituted a suit before the Court of Small Causes Court, Pune, being CS No. 176 of 1986. That suit against the Respondent was filed on the ground of bonafide and reasonable requirement and also on the ground that the Respondent has unauthorisedly erected permanent structure in the suit premises on portion which was not let out to the Respondent and that the same was also causing nuisance and annoyance. The trial Court by its judgment and decree dated April 22, 1988 was pleased to dismiss the suit on all the three counts. The appeal preferred by the petitioner before the District Court at Pune being Civil Appeal No. 566 of 1988 was also dismissed by the Appellate Court. Both the Courts below have essentially proceeded to examine the case on the premise that the theory of partition pressed into service by the landlord was doubtful and that if the same was to be discarded, then, it necessarily follows that the Petitioner was staying with the joint family and, therefore, it was not possible to hold that the premises in question were required by the petitioner for his bonafide and personal requirement. The Courts below have also opined that it was inconceivable that the Petitioner was staying in the attic portion of the same building. For this, the Courts below have relied on the evidence of witness examined by the defendant Shri Rahalkar and also because the petitioner did not indicate as to when he started staying in the attic portion. These concurrent decisions are challenged in the present writ petition under Article 227 of the Constitution of India.

(2.) ACCORDING to the learned Counsel for the Petitioner, the approach of both the Courts below is manifestly wrong and impermissible, which has caused serious miscarriage of justice. he submits that, in a suit for possession filed by the landlord against the tenant, it was not open for the rent Court to examine the fact as to whether the partition has in fact taken place between the members of the joint family. He submits that in any case there is no specific plea taken on behalf of the Respondent-defendant that the said partition was malafide so as to defeat the rights of the Respondent or only to secure possession of the suit premises from the tenant. It is further submitted that the defendant on the other hand has admitted in his evidence that the Petitioner's father had informed him that the plaintiff has become landlord and since he has started managing the property himself, the defendant should start paying the rent directly to the petitioner: And that since then the Respondent has been paying rent directly to the petitioner, which presupposes that the Respondent has accepted the petitioner as his landlord. It is contended that, in this backdrop, it was not open to the Respondent to question the title of the Petitioner in respect of the suit property on the premises that the partition had never taken place as contended and, which contention has erroneously found favour with the two courts below. The learned Counsel has also relied on the CTS record and other documents and contends that the partition was recorded in the relevant records as back as in the year 1976-79. Therefore, it is incomprehensible that the partition can be said to have been effected only for the purpose of claiming possession of the suit property. The learned Counsel further contends that the finding of fact recorded by the courts below that the Petitioner was not staying in the attic portion of the suit building is based on conjectures and surmises. That the Courts below have given undue importance to some minor errors and preferred to rely upon the evidence of the defendant's witness. It is contended that the approach of the courts below was inappropriate. In so far as the question of greater hardship is concerned, the learned Counsel brought to my attention pleadings in the written statement filed by the Respondent in which there is no averment made that it was or will not be possible to get alternative accommodation in the same locality or in the city of Pune. All that has been mentioned in the written statement by the Respondent is that, it is not possible to get residential accommodation unless more deposit amount is paid and the Respondent has no funds to bear the same. In other words, it is not the case of the defendant that no premises could be secured in the city of Pune or for that matter in the same locality. Understood thus, according to the petitioner, even the issue of comparative hardship ought to be answered against the Respondent and also having regard to the fact that the Respondent was admittedly the owner of premises - one residential flat at Mumbai. The learned Counsel has also invited my attention to the affidavit placed on record before this Court by the respective parties pointing out the events that have occurred after filing of the petition. In so far as issue of Respondent having erected unauthorised structure and nuisance is concerned, the learned Counsel contends that both the Courts below have committed error in answering the said issue against the petitioner.

(3.) ON the other hand, the Counsel for the Respondent submits that two courts below have concurrently found that the need set up by the Petitioner is neither bonafide nor reasonable and, therefore, it is not open for this Court to reappreciate the evidence on record so as to over turn and said finding of fact in exercise of writ jurisdiction under Article 227 of the Constitution of India. He further submits that the courts below have not decided the issue of partition as the main issue, but they were required to answer the same incidentally for ascertaining the factum as to whether the need set up by the petitioner is bonafide and reasonable. He, therefore, submits that no fault can be found with the approach of the courts below in taking the view that the partition was doubtful. He further submits that, in any case, the courts below have rightly found that the petitioner has not been able to establish that he was staying in the attic portion of the suit building at the relevant time, and, therefore, adverse inference ought to be drawn against the petitioner - that he was having sufficient accommodation to stay elsewhere, either with his family or otherwise. In such a situation, contends learned Counsel, this Court ought not to show any indulgence to the petitioner. In so far as the issue of hardship is concerned, the learned Counsel submits that the Respondent has no other place in the city of Pune, except the suit premises. Moreover, because of his old age and conducive weather condition in Pune, he cannot now settle down in Mumbai. He, therefore, submits that it would be iniquitous to dispossess the Respondent from the suit premises; and especially when there is material on record to show that the petitioner was also the owner of other premises along with his family members. According to him, the sole intention of the Petitioner is to get possession of the suit premises so as to utilise the said premises for the lodging business and not for his personal use and occupation for residence for himself as well as his family members. In this back drop it is submitted that the finding recorded with regard to the comparative hardship also needs no interference. The learned Counsel further contends that, in so far as the issue of permanent structure and nuisance is concerned, the same have been rightly answered by the two courts below because, there was absolutely no evidence forthcoming from the Petitioner as to when the offending structure was erected. On the other hand according to the Respondent, the said structure was in existence since 1943. He therefore, submits that taking any view of the matter no interference was warranted on these two issues. The learned Counsel further contends that this court ought not to look into the affidavits which have been filed in the present writ petition, to bring on record the so called subsequent events. According to him, no corresponding amendment in the pleadings has been carried out by the parties and the facts which are attempted to be brought on record are essentially question of facts, for which amendment to the pleadings was essential. He was placed reliance on the decision of the apex Court reported in 2002 (2) SCC 256 inn Om Prakash Gupta v. Ranbir B. Goyal.