BABUTAI TANNU Vs. KISAN M BORADE

JUDGEMENT

(1.) This is a tenants petition under Article 227 of the Constitution against the appellate judgment delivered by the District Judge, Poona, allowing the plaintiffs appeal and setting aside the order of the trial Court and decreeing the plaintiffs suit for possession.

(2.) The petitioner is a tenant of a room on the ground floor of House No. 403-B, Kasba Peth, Poona, which belonged to the respondent. There is no dispute that the tenancy began prior to 1947 and that initially the rent was Rs. 6/- per month. In 1960, the respondent filed a suit against the petitioner for eviction on numerous grounds, one of which was that the suit premises were left out for residence and that the petitioner was using the suit premises for business. The suit was resisted by the petitioner. It was the case of the petitioner that the suit premises were let out for business. Ultimately the matter was compromised and a purshis was field by the parties saying that they have compromised the matter and that the plaintiff did not want to prosecute the suit further. In terms of that compromise, the rent of the suit premises was increased to Rs. 9/- per month. Thereafter the respondent-landlord gave a notice of termination of tenancy on the 6th March, 1968. He has alleged in that notice that he required the suit premises bona fide for his residence and that the petitioner has been using the suit premises for business purposes while the same were let out for the purpose of residence. He also alleged that the petitioner has erected a permanent structure on the suit premises without the permission of the landlord. The respondent also alleged that the petitioner has acquired alternative suitable vacant possession for his residence. The petitioner did not cachet the suit premises and the respondent then field a suit for possession on the above mentioned grounds. The claim of the plaintiff was resisted by the petitioner. It was stated that the petitioner has not made any change in the user of the premises. The premises were let out for the purpose of business and even if they were initially let out for residence, then there was clear admission by the landlord in the purshis that the suit premises were allowed to be used for business purpose. It was also urged that in view of the compromise the landlord was estopped from saying that the suit premises were let out for residence. It was also stated that in view of the dismissal of the previous suit, the point regarding change of the user is concluded as res judicate.

(3.) The necessary issues were framed. The parties led evidence after taking into consideration the material that was placed before him, the learned trial Judge held that the petitioner has not erected any permanent structure without the permission of the landlord. He also held that the petitioner has not acquired vacant possession of suitable premises. He held that the suit premises were let out for the purpose of business and that there was no change of user by the defendant. He held that the suit premises were not required reasonably and bona fide by the landlord. He also held that the defendant has not acquired alternative suitable residence. He, therefore, dismissed the plaintiffs suit for possession. The plaintiff therefore field an appeal in the District Court which was heard by the learned District Judge who reversed the findings regarding the user of the premises and bona fide need of the landlord. He held that the suit premises were let out for the purpose of residence and that the defendant was using the premises for the purpose of business and, therefore, there was a change of user. He made a reference to the compromise decree and observed that in the Purshis the defendant has given an unmistaken admission that there was a change of user. He also held that the compromise decree did not operate as an estoppel or res judicata against the plaintiff. He re-appreciated the evidence and came to the conclusion that the suit premises were let out for residence and the petitioner was using them for business purpose and, therefore, there was change of user and on that count the respondent was entitled for possession. He also held that the family of the landlord consisted of five members, viz., he himself, his wife and three sons who are all of marriageable age and that they were occupying a room of two khans and they established their need for larger accommodation. Therefore, the need of the landlord was reasonable and bona fide and greater hardship would be caused to the plaintiff if the decree for eviction is not passed. Consistent with these findings, he allowed the appeal and decreed the plaintiffs claim for possession. It is against this judgment that the present petition has been field.