VIMLABAI DIGAMBAR GARE Vs. VISHWANATH NARHARI MALWADKAR

JUDGEMENT

(1.) This Petition is filed by the tenant, the original tenant being the husband of the Petitioner, who is no more, challenging the concurrent findings of both the Courts that the landlords needed the premises in question for their bonafide residence. The tenant originally had in his possession four rooms out of which he handed over one room to the landlords some time in the year 1960. The respective families of the landlords seem to be growing as a result of the children being born in the family or sons getting married. A suit was, therefore, filed against the tenant in the year 1965 being Civil Suit No. 854 of 1965 for ejectment from the remaining premises. That matter came to be settled, the tenant agreeing to hand over one more room to the landlords. A fresh proceeding was taken up by the landlords again in 1968 by filing another suit on the ground of Bonafide requirement. That suit came to be dismissed and while the appeal was pending the landlords were permitted to withdraw the suit itself with liberty to file a fresh suit. Thereafter the plaintiffs filed the present suit No. 3366 of 1973 in which according to the landlords the total number of the members of their family was 18 while there are only five rooms in their possession which were extremely insufficient and they, therefore, asked for eviction of the tenant. The trial Court found that there were 16 members staying at Poona while the 17th member occasionally uinits Poona on Sundays and Holidays. Applying its mind to the question as to whether the five rooms were sufficient for 17 members, the trial Court found that out of 17 members four were couples Out of the four sons of the plaintiff No 1, two were married while the only son of plaintiff No. 2 was also married. Thus, according to the trial Court with four couples permanently residing in Poona along with the other members of the family, the need of the plaintiff was proved. On the question of hardship, the trial Court found that the tenant was residing at Talegaon where he has his own house since February 1975. The trial Court, therefore, passed a decree for possession. A decree for rent amounting to Rs. 244. 29 inclusive of educational cess was also passed, It appears that in the mean time the tenant had died and his widow, therefore, filed an appeal. The appellate Court also held that the family of the plaintiff No. 1 consisted of his wife, four sons, two daughters-in-law and four grand-children and the family of plaintiff No. 2 consisted of him self his wife, son, daughter-in-law and grand-child and for these 16 members and the plaintiff No. 1, who used to visit Poona on Holidays and Sundays, the accommodation was not sufficient. He therefore, dismissed the appeal holding that since the plaintiffs were ready to make available one other room on the ground floor for accommodating the original tenants wife, he would not be put to any hardship. The tenant's widow has now filed this Special Civil Application.

(2.) It is contended in this Petition on behalf of the tenant by Miss Kapadane that the landlords are harassing the tenant because on two cccations the tenant had handed over one room each and that the landlords should have proceeded against other tenants who were also in occupation of accommodation belonging to the plaintiffs. Now, it is primarily for the landlords to decide which accommodation is more suitable for them and against which tenant they want to proceed, it is no douts, true that the plaintiff No. 1 has admitted that there are two other tenants and each one of them has one room in his possession But according to the londlords the premises with these tenants would not be sufficient for their needs. Tae landlords could not be compelled to proceed against any particular tenant, more so, when, according to the landlords, the accommodation in the possession of the other tenants, if made available, would not be sufficient. It was then contended that since the landlords had expressed their willingness to make alternative accommodation in the form of one room available to the tenant, the landlords must be held to be in possession of six rooms and not five rooms. However, there is nothing in the evidence of the two landlords on which it can be held that the landlords had in their Possession six rooms. On the other hand, the plaintiff No. 1 has clearly stated that he was in possession of only five and not six rooms. How these five rooms are utilised is also explained by him. According to him, out of the five rooms, there are two kitchens, which are bound to be smaller, one room is used as a living room, the other room is used by the married son of plaintiff No. 1 and one room is used by plaintiff No. 1 along with his son. Thus five rooms have been accounted for and it is this accomnodation which, according to the landlords, was insufficient having regard to the number of the members of the family. It was then eontended by the learned Counsel that the premises which were situated at some distance from Poona were not suitable for the tenant and, therefore, hardship would bs caused to the tenant if she is evicted from the premises. It has been held concurrently by both the Courts that since the tenant was being offered one alternative room, no hardship would be caused In any case, having regard 10 the comprative needs of the landlords and the tenants, it would be clear that the landlords were entitled to accommodation in the possession of the tenants. There is thus no substance in this Petition.

(3.) The Petition fails and is rejected. However, there will be no order as to costs of the petition.