LILAVATI MATHURDAS VALLABHADAS Vs. VIJAYKUMAR NAROTTAM KAPADIA

JUDGEMENT

(1.) BY this petition, the petitioners challenge the judgment and decree passed by the appellate bench or the Small Causes Court, Bombay on 12th july, 1989 in Appeal No. 674 of 1985 allowing the appeal of the respondent-landlords and thereby decreeing their suit for possession.

(2.) THE suit property belongs to Tracker jethabhai Govindji Nivas, a public charitable trust (hereinafter referred to as the "trust" ). The erstwhile trustees of the Trust filed a suit against Mathuradas Valiabhdas (husband of the petitioner no. 1 and father of petitioner nos. 2 to 5) for possession on the ground that he had acquired suitable residential premises at Milan cooperative Housing Society Ltd. (for short Milan society) after coming into force the Bombay rents Hotel and Lodging House Rates Control Act, 1947 (for short the Bombay Rent Act) and had gone to reside in the said premises. The Trust also claimed possession on other grounds but, they are not pressed before me. The trial court held that the tenant had acquired residential premises in Milan Society, but held that the trust had not proved that the premises were suitable for residence of the tenant and therefore, declined to pass a decree for possession. The appellate Bench while confirming the finding that the tenant had acquired residential premises at Milan also held that the said premises were suitable, and passed a decree for possession. That judgment is impugned in this writ petition. 2. Learned counsel far the petitioners does not dispute the finding of fact recorded by the courts below that the tenant through whom the present petitioners claim had purchased and/or acquired a residential flat in Milan Society. He however, submits that the landlords had not proved that the flat acquired by the tenant was suitable for him. He further submits that the burden of proving that the flat at Milan Society acquired was suitable for residential premises was on the respondent-landlords and as they had failed to discharge the burden the trial court had rightly dismissed the suit.

(3.) LEARNED counsel for the respondents on the other hand submits that the initial burden of proving that the tenant had acquired residential premises elsewhere lay on the landlords but once the said burden was discharged and the acquisition or other residential premises was proved, the burden of proving that the premises were not suitable was on the tenant. The tenant had acquired self contained flat admeasuring 600 sq. ft in Milan Society. Assuming that the burden of proving suitability was an the landlords, the burden was discharged by proving that the fiat at Milan Society was of 600 sq. ft as compared with the suit premises which consist of only one residential room admeasuring about 8' x 16.