SAHEBLAL HUSENSAHEB MUJAWAR Vs. RAM LAXMAN JADHAV

JUDGEMENT

(1.) THIS is a petition by the original plaintiff-landlord who had filed Regular Civil Suit No.1072 of 1976 against the defendant-tenant for possession of the suit premises of one room bearing no.12 and a veranda on the ground that the tenant has not used the suit premises for a period of more than six months immediately preceding the date of the suit with-out a reasonable cause and that the tenant has acquired alternate suitable residence. The defendant-tenant resisted the suit and contended that he has been residing in the suit premises and it is false to suggest that he has not used the suit premises as alleged. Evidence was adduced and on the basis of material on record, the learned trial Judge held that the plaintiff has proved that the defendant has kept unused the suit premises for more than six months immediately before the institution of the suit. The learned Judge also held that the defendant has secured alternate suitable residence and he is residing there alongwith his family. Consequently, by judgment and decree dated 18.2.1980, the learned III Joint Civil Judge, Junior Division, Solapur, passed decree in favour of the plaintiff.

(2.) BEING aggrieved by the said judgment and decree, the tenant (original defendant) preferred Civil Appeal No.340 of 1980. On appreciation of evidence, the learned Assistant Judge, Solapur, held against the plaintiff-landlord on both the issues and by his judgment and decree dated 18.2.1982 allowed the appeal and dismissed the suit for possession. Being aggrieved by the aforesaid judgment and decree of the lower appellate court, the original plaintiff-landlord has filed this petition.

(3.) UNDOUBTEDLY , in writ jurisdiction under Article 227, this Court normally cannot go into questions of facts. However, on the basis of material on record in this case, I find sufficient justification in the submissions of Mr. Jamdar that the lower appellate Court has based its findings on surmises and a case which was never pleaded by the defendant.