DATTARAM DAULAT KODARE Vs. SHANTABAI ZIMJI JAGTAP

JUDGEMENT

(1.) BY this petition, the petitioner taker, exception to the judgement and order dated 14th April 1991 passed by the VIth Addl. District Judge, Thane dismissing Civil Appeal No. 417 of 1998 and confirming the decree for possession passed in favour of the respondent-landlord.

(2.) THE respondent, is the landlady The suit premises were let out to Dattnram, the original petitioner for residence in the year 1961. Dattaram died during the pendency of the petition and his write and sons are brought on record as the present petitioners. The respondent filed a suit against dattaram bearing regular Civil Suit no. 2/4 of 1983 for possession on several grounds. The trial Court held that Dattaram had acquired suitable residential accommodation elsewhere and was not using the suit premises for the purpose for which they were let out viz. the residence for a period of more than six months prior to the institution o a suit. The trial court also held that Dattaram had carried out constructions in the suit premises without the consent of the respondent. The trial Court decreed the suit. The appellate Court also held that the original respondent had acquired suitable residential premises elsewhere. The appellate Court however, held that the respondent was aware 01 The change of user of the premises for many years and her inaction amounted to waiver or her rights. In view of the findings that the original petitioner had acquired the suitable residential prettiness elsewhere the appellate Court confirmed the decree for possession passed by the trial Court. There judgement is impugned in this Writ Petition.

(3.) IT is not disputed that the suit premises art residential and were let out to the Dattaram in the year 1961 for the purpose of residence, In the year 1972, Dattaram became an Advocate. It appears that after 1972, Dattaram continued to occupy the said premises for the purpose of his residence and started using the part of the premises for the purpose of his profession of an Advocate. The suit premises consists of only one room and the same room was used for residence and also for meeting the clients for a few hours of the day. Therefore, prima facie it appears that there was no change of dominant use which continued to be of residence. The appellate court has held that the respondent had engaged dattaram as her Advocate for some other litigation and she was aware that he was using part of the suit premises for conducting his profession as an advocate. As the respondent had not complaxned about it and therefore, it was held that she had waived the changed of user.