VISHNU SIDESHWAR GODBOLE Vs. SHURMAL RATANJI OSWAL

JUDGEMENT

(1.) THE petitioner before me is the landlord, who as the plaintiff had filed Regular Civil Suit No. 297 of 1976 against the tenant (respondent before me) claiming possession of the demised premises on the ground that he required them bonafide and for personal occupation by himself and his family members. The suit was on the file of the Civil Judge, Junior Division, Wai. After recording evidence the learned Judge found that the plaintiff had proved his bonafide and reasonable requirements. However, on the question of relative hardship the learned Civil Judge. Junior Division, was of the opinion that the entire premises ought not to be given to the plaintiff. This conclusion was reached after comparing the needs of the plaintiff's family of three as against the tenant's family of 18. The trial Judge thereupon visited the premises and mentally decided how they ought to be bifurcation and divided as between the landlord and the tenant. The scheme of bifurcated which we may refer to and later on required an additional stair case being constructed in respect of which the learned trial Judge was of the opinion that the cost for same should be borne by the defendant (tenant). The defendant was not agreeable to this course. Since the trial Court was of the opinion that the bifurcation as was suggested by it was the only practical solution the defendant was not willing to carry out, the suit was fully decreed in favour of the landlord.

(2.) AGGRIEVED by this decision and the eviction decree passed against him, the tenant preferred an appeal which was designated as Civil Appeal No. 168 of 1978. The same was heard by the Extra Assistant Judge, Satara. The learned Extra Assistant Judge found in the record a letter from the landlord in which the landlord had demanded some small area (one, which a shed had been constructed) from the tenant. It would appear in the course of the said appeal, an undertaking was given by the tenant that he would part with the same if directed to do so and on the basis of the said undertaking the appellate Court set aside the judgment and decree of the lower Court and in substitution thereof passed in favour of the landlord an eviction decree to the extent of four Khans as mentioned in the tenant's undertaking at Ex. 70.

(3.) HAVING considered the matter, it is clear to me that the appellate Court was not right in giving to the landlord only what he had sought for in the initial correspondence and as per the undertaking given by the tenant during the course of appeal. Before litigation, a party may be willing to accept much less than what he is entitled to as a manner of legal right. That does imply that what is sought at the earlier stage is the only thing to which that party would be entitled after going through the gamut of litigation in the Court. The Appellate Court has, in my opinion, lightly brushed aside the personal observation made by the trial Court, which had come to the conclusion that there was only one method of dividing the premises which required certain amounts to be spent by the tenant and since the tenant was not willing to do so, the only alternative was to give the full demised premises to the landlord. The course adopted by the trial Court was substantially correct despite the extremity of the order ultimately passed.