KIRIT KUMAR CHATRABHUJ BAROT Vs. RAJENDRASINH FATESINH GOLE

JUDGEMENT

(1.) Applicants have invoked revisionary jurisdiction of this Court under Sec. 115 of the Code of Civil Procedure, 1908 (the Code) to set up a challenge to the judgment and decree dtd. 21/9/2022 passed by the learned District Judge-6, Kalyan, dismissing Regular Civil Appeal No. 42 of 2018 and confirming the judgment and decree dtd. 15/3/2018 passed by the Civil Judge, Junior Division, Kalyan in Regular Civil Suit No. 45 of 2007. The Trial Court, while decreeing the Suit, has directed the Applicants/Defendants to vacate the possession of the suit premises and to hand over the same to the Plaintiff.

(2.) House property bearing 367 comprising of ground floor chawl, situated at Lane No. 55, Chickenghar within Kalyan Dombivali Municipal Corporation (KDMC) is owned by the Plaintiff. Room No. 1 divided into three rooms admeasuring 300 sq. ft. in house No. 367 are the 'suit premises'. Father of Defendant Nos. 1 to 3-late Chatrabhuj Barot was inducted as monthly tenant in respect of the suit premises on monthly rent of Rs.25.00. It is alleged by Plaintiff that Defendant No. 1- Kirit Kumar Chatrabhuj Barot was residing in the suit premises and Defendant No. 2-Bakul Chatrabhuj Barot has shifted alongwith his family in his owned house at Thakkar Co-op. Housing Society Ltd. It is further alleged that Defendant No. 3 has been residing with Defendant No. 2 in the house of Defendant No. 2 since 1996- 1997 and thereafter shifted to his own house at Mohan Park, Khadak Pada, Kalyan (W). This is how Plaintiff claimed that Defendant No. 1 alone resides in the suit premises alongwith his family. Plaintiff instituted R.C.S. No. 45 of 2007 in the Court of C.J.J.D., Kalyan on 23/1/2007 alleging that Defendant No. 1 erected permanent structure of kitchen platform and bathroom inside the suit premises, that he chiseled the wall between two rooms and installed permanent marble temple thereby endangering the wall of the suit premises. Plaintiff therefore claimed that Defendant No. 1 caused damage to the suit premises. It was further alleged in the Plaint that Defendant No. 1 is an auto rickshaw driver and was illegally parking his auto rickshaw in the open space belonging to the Plaintiff. That Defendant Nos. 2 and 3 are taxi drivers, who also parked their taxis in Plaintiff's property during nighttime. That the local hooligans were misusing the parked vehicles and creating nuisance to Plaintiff, his family members and neighbouring occupiers. It was further alleged that the wife of Defendant No. 1- Jayashri K. Barot was conducting private classes in the suit premises without the consent of the landlord and that the students attending her tuitions were creating nuisance for Plaintiff and neighbouring occupiers by their various acts such as throwing stones at mango tree, using common toilet, occupying common spaces, etc. Lastly, Plaintiff also claimed that he had decided to demolish the house structure in which the suit premises are located and to construct a new building and had expressed willingness to provide the same area in the new building to the Defendant No. 1 by charging mere construction cost, on ownership basis. That Defendant No. 1 accordingly executed consent letter dtd. 4/1/2006 and accordingly Plaintiff got plans sanctioned for construction of new building from KDMC and accordingly commenced construction of the building since May-2006. However, despite the developer engaged by the Plaintiff repeatedly calling upon Defendant No. 1 to select flat in the new building Defendant No. 1 refused to co- operate. Accordingly, Plaintiff also sought recovery of possession of the suit premises for demolition and construction of new building. The Suit was resisted by Defendants by filing their written statement contesting the claim of the Plaintiff in the Suit. Defendants denied the allegations of permanent construction, cause of damage to the suit premises, cause of nuisance /annoyance to Plaintiff/ neighbouring occupants. So far as consent letter dtd. 4/1/2006 is concerned, Defendants contended that signature of Defendant No. 1 was obtained on blank paper for preparation of false consent letter. That Plaintiff unauthorisedly secured development permission from Municipal Corporation without informing Defendants or other tenants. Defendants therefore denied that Plaintiff was entitled to secure possession of the suit premises for construction of new building in accordance with the said plans.

(3.) Based on the pleadings of the parties, Trial Court framed issues. Both parties led evidence in support of their respective contentions. Plaintiff examined Smt. Vidya S. Gole, his constituted attorney as PW1. Plaintiff also examined Dnyaneshwar C. Adke, Junior Engineer of Kalyan Dombivli Municipal Corporation to prove the development permission. Defendants examined Defendant No. 1 as their witness. Defendants also examined Anand Bhalchandra Phatak, Developer as their witness. After considering the pleadings, documentary and oral evidence, the Trial Court decreed the Suit by judgment and order dtd. 8/8/2013 directing the Defendants to handover possession of the suit premises to the Plaintiff. Defendants filed Civil Appeal No. 195 of 2013 challenging the eviction decree dtd. 8/8/2013. The District Court however dismissed the Appeal of the Defendants and confirmed the eviction decree dtd. 8/8/2013 by its judgment and order dtd. 24/6/2016. Defendants filed Civil Revision Application (stamp) No. 33563 of 2016 in this Court challenging the decree of the Appellate Court by which Trial Court's decree was confirmed. When Civil Revision Application (stamp) No. 33563 of 2016 came up before this Court on 20/12/2016, this Court recorded willingness on the part of the Revision Applicants to offer possession of the premises for the purpose of demolition thereof and construction of new building. Thereafter the Revision Application came to be disposed of on the basis of the consent of both the parties by setting aside the orders passed by the Trial Court dtd. 8/8/2013 and by Appellate Court dtd. 24/6/2016 and by remanding Regular Civil Suit No. 45 of 2007 for being decided afresh on the basis of evidence already led. After the remand of the Suit by this Court by order dtd. 27/1/2017, the Trial Court proceeded to decide the Suit afresh.