NARENDRA AMRITLAL Vs. BHAGIRATH RUPCHAND CHAUHAN

JUDGEMENT

(1.) THE petitioner in Writ Petition No. 3486 of 1983 filed a suit being Rent Act Declaratory Suit No.16 of 1978, in the Court of Small Cases at Bombay for a declaration that he is the tenant of the premises on the ground floor of the building known as Hingkee Building including the premises of the room under the staircase and the open passage in front of the said premises. From the prayer which I have reproduced it is clear to me that the plaintiff wanted declaration that he is the tenant not only of the premises on the ground floor but also the premises of the room under the staircase and the open passage in front of the said premises. The respondent in this petition has become the owner of the building in which the premises are situated by purchase of the building in which the premises are situated by purchase of the building in the year 1977. He denied the claim of the plaintiff. As a result, issue of the tenancy of the petitioner in respect of the premises apart from the room below the staircase and open space also were framed by the trial Court and was answered in the affirmative by the trial Court. The trial Court negatived the claim of the petitioner in respect of the premises consisting of the room below the staircase and the open space in the front. By its judgment and order dated 30th April, 1980 the trial Court dismissed the suit by holding that the petitioner was not entitled to the declaration or injunction in respect of the premises consisting of the room below the staircase and the open space on front. The decree of the dismissal of the suit was confirmed by the appellate Bench of the Small Cause by its judgment and order dated 25th August 1983 in appeal No. 401 of 1980 preferred by the petitioner. In the appeal, Court, it was suggested on behalf of the petitioner that the trial Court was in error in dismissing the suit totally when in fact the finding was that the petitioner was a tenant in respect of the ground floor premises excluding the premises comprised in the room below the staircase and the open space. The appellate Bench thought that there was no dispute about the same and basically the relief claimed by the petitioner was in respect of the other premises. On this ground the appeal Court found that the judgment and decree of the trial were correct. Aggrieved by the aforesaid order of the appellate Bench, the petitioner has apprehended this Court under Article 227 of the Constitution.

(2.) MR . Abhyankar, the learned Advocate appearing in support of the petition, has in the first place criticised the judgment of the appeal Court by contending that it was erroneous to confirm the order of dismissal of the entire suit when the finding has been given that the petitioner was a tenant of the premises on the ground floor excluding the other part of the premises referred to above. To that extent at least, the petitioner was entitled to a declaration. An issue had in fact been raised on this aspect and had been answered in the affirmative by the trial Court and this finding has not been disturbed by the appeal Court. In fact the appeal Court concurred with the finding given by the trial Court. If this is so, says Mr. Abhyankar, a declaration, though of a limited nature, ought to have been given.

(3.) MR . Abhyankar further sought to criticise the judgment of the two Courts below in so far as they relate to the room below the staircase and the passage in the open space in front of the premises tenanted by the petitioner. The fight in the Courts below in fact took place mostly on these two aspects. Large evidence was led on behalf of both the parties. Considering the probabilities of the case, the conduct of the parties and other attendant facts and circumstances the two Courts of facts have come to the conclusion that the room below the staircase and the open space in front of the tenanted premises could not have at any time formed part of the tenancy of the petitioner or of his predecessor-in-title. I do not find any error, let alone error of law, in the judgment of the two Courts below.