RAJARAM GANPAT PAWAR Vs. GOVIND NARAYAN KONDALKAR

JUDGEMENT

(1.) The remand order which is impugned in this petition deserves to be set aside because it is passed after wrongly throwing burden on the respondent, who had taken out an obstructionist notice against the petitioner in execution of the decree passed against the erstwhile tenant, to establish that the room of which possession is sought in execution of the decree is not declared as a slum area.

(2.) The petitioner landlord obtained a decree of eviction against the original tenant in respect of Room No. 3, Rajaram Ganpat Pawar Chawl, Altaf Nagar, Golibar Road, Shivaji Chowk, Ghatkopar, Bombay. He took out execution by way of warrant of possession, but the same was obstructed by the respondent. The petitioner, therefore, took out the obstructionist notice for removing obstruction and for executing the warrant of possession. The respondent obstructionist resisted the notice mainly on two grounds, viz. (1) that he was in use and occupation of the suit premises as a licensee since before 1st February, 1973 and hence he is protected under section 15-A of the Bombay Rent Act and (2) that the suit premises are declared to be a slum area under the Maharashtra Slum Area (Improvement, Clearance and Re-development) Act, 1971 and hence the landlord would not be entitled to execute the decree. The learned Judge of the Small Cause Court, who heard the obstructionist notice, held that the respondent obstructionist failed to prove that he was in possession of the suit premises as a licensee as on 1st February, 1973 or that the premises in question were declared as a slum area. He found nothing on record to show that Card, Exhibit 5, declaring a temporary structure in Gopal Bhuvan in occupation of the obstructionist related to the room in question. Consequently the learned Judge made the obstructionist notice absolute and directed that the petitioner shall be put in possession of the suit premises by removing the obstruction caused by the respondent.

(3.) Being aggrieved by this order the respondent preferred an appeal to the Appellate Bench of two Judges of the Small Cause Court. At the hearing of the appeal the respondent produced a letter issued in his name stating that the structure bearing Census No. NX 745/10 situated in C.T.S. 2139 of village Ghatkopar is declared as a slum area vide Notification No. STN/DCK/2724 dated 14-12-77. This letter also did not improve the position in favour of the obstructionist. The only additional information contained in this letter was that the structure bearing Census No. 745/10 is situated in C.T.S. No. 2139. This information also did not establish that the structure, which is declared as a slum areas, is the same as the suit premises. The learned Judges of the Appellate Bench, therefore, found fault with the plaintiff petitioner in not mentioning in the plaint the city survey number of the property of which the possession was sought. They observed that the plaintiff has not disclosed city survey number of the suit premises in the plaint and he ought to have disclosed and particulars which were within his knowledge at least when a contention was raised by the respondent about the declaration of the slum area. They found that this deficiency in the evidence necessary for the respondent to prove that the suit premises are declared as a slum area occurred because of the fault of the plaintiff in not discharging the burden of supplying all the relevant details required to disprove the contention. They, therefore, set aside the order making the obstructionist notice absolute and remanded the matter to the trial Court for deciding the two issues (1) What is the survey number and C.T.S. number of the land on which the suit premises are situated, (2) whether the patch holders Card Exhibit 5 is in respect of the suit premises. It is this order of remand which is sought to be quashed by the petitioner-landlord.