NARIMAN HORMUSJI Vs. BEHRAM GORE POCHKHANWALA

JUDGEMENT

(1.) Both these Writ Petitions are arising out of a common judgment and order passed by the Additional Chief Judge of Small Causes court (for short "appellate Court") at Bombay dated 28th September, 1993, whereby, both the Appeals filed by the common petitioners/heirs of the original petitioner - paying guest - in both these Writ Petitions have been dismissed and confirmed the common judgment and order passed by the Small causes Court (for short "trial Court") and resultantly dismissed the Declaratory suit No. 1590/5450 of 1974 filed by the petitioners and confirmed the suit for possession filed by the respondent-owner (now deceased) [for short "the respondent-owner"]. Therefore, these two separate Writ Petitions by the common petitioners (heirs) against common respondents (heirs).

(2.) The premises is a flat on the second floor of Bhiwandi House standing at 92, August Kranti Marg Bombay - 400 026, which consists of a hall and three bed rooms, a kitchen, bathrooms and WCs. The original petitioner (deceased petitioner) expired on 1/12/2002 The paying guest (petitioners heirs referred as "paying guest") when he was a bachelor in the year 1958 used to reside with his mother in the suit premises i. e. one big room facing to the road, separate bathroom and lavatory with a common passage and kitchen in the said flat. After marriage, the deceased petitioner has been living with his wife, mother and daughter. There was no written agreement of any kind with the deceased respondent. Mrs. Khorshed Peshtom Pockhanawala. The additional amenities have been provided to use gas for cooking and electricity. The deceased respondent-owner used to charge from the paying guest, 50% of the total monthly gas bill and lump sum of Rs. 9/- towards electricity bill. The paying guest used to pay monthly amount of Rs. 150/- for the suit premises in addition to the charges referred above, as a "paying guest". The paying guest used to get the facilities of tea and breakfast, including eggs and bread and butter in the morning and tea and snacks in the evening. There was another tenant Mrs. Kapadia who was also occupying the room as a "paying guest". These two paying guests were enjoying the common facilities including passage, kitchen, WC, as referred above.

(3.) An Ejectment Application No. 617 of 1961 was filed by the respondentowner against the other paying guest Mrs. Kapadia, a Parsi woman for recovery of possession of the premises. The deceased petitioner in support of the other paying guest, as a witness, stated on oath that they are in occupation of the premises as paying guests. The said Ejectment proceedings ended with the recovery of possession of the premises.