SAVITRIBAI R MHATRE Vs. AVINASH K BENDRE

JUDGEMENT

(1.) THIS is a petition filed under Article 227 of the Constitution of India by the landlord, challenging the order dated 2.9.1991 passed by the Appellate Bench of the Small Causes Court, Bombay in Appeal No,249 of 1989. The Appellate Bench - allowed the Appeal filed by the Respondent No.1 against the judgment and decree passed by the Additional Chief Judge, Chamber matter dated 17.3.1989 in R.A.E. Suit No. 5657 of 1982, filed by the present petitioners. The present petitioners filed Civil Suit being RAE No.5657/82 before the Trial Court seeking a decree of possession in relation to the suit premises, which are a tenament on the first floor of the first Bhatwadi, 12th Mhatre House, Girgaum, Bombay. It is to be stated here that after the death of original tenant one Shri Chaubal, his widow became the tenant of the concerned suit premises. The present respondent no.1 is the nephew of deceased tenant Mrs.R.S.Chaubal, as he is her brother's son. The respondents 2 to 7 are related to the deceased tenant Mrs. Chaubal on her father's side. In the plaint it was the case of the landlords that they need the suit premises for their bonafide occupation. When the suit was filed Mrs.Savitribai, who is the mother-in-law of the petitioner no.1 and grand-mother of the petitioners nos. 2 and 3 was alive. One of the grounds on which the decree was claimed, was that the suit premises which are on the first floor, are needed for the residence of deceased landlady Mrs.Savitribai. It was also claimed that the petitioner no.2, who was the plaintiff no.2 was of a marriageable age and that he is to marry shortly and that the suit premises are necessary for accommodating his family. The petitioner no.3, who is the daughter of petitioner no.1 is married and living with her mother and therefore, her need was also pleaded. The Trial Court on the basis of evidence on record, recorded a finding that the landlady bonafide needed the suit premises and therefore passed a decree of eviction. Only the respondent no.1 filed an Appeal before the Appellate Court and the Appellate Court by the judgment impugned in the petition reversed the finding recorded by the Trial Court and allowed the Appeal.

(2.) SHRI Jahagirdar, the learned counsel appearing for the petitioners urged before me that as the original landlady Savitribai has expired, her need cannot be taken into consideration. He further urged that even if the need of the petitioner no.3, who is daughter of the petitioner no.1, is not taken into consideration and considering only the need of the petitioner no.1 and petitioner no.2, then also it cannot be said that the need of the landlords of the suit premises is neither bonafide nor reasonable. He contended that the landlords are presently residing in the tenament on the 2nd floor of the same building. The area in possession of the landlord is 350 sq.ft., which consists of a kitchen and only one room. That tenament is presently occupied by the petitioner no.1 who is 78 years of age and her son petitioner no.2 and his wife and his son. According to Shri Jahagirdar, even considering the need of this family, it cannot be said that their desire to have the suit premises which are situated on the first floor of the same building and which also have the area of 350 sq.ft. can be termed as unreasonable. He contended that the petitioner no.1 being an old lady needs a separate room for herself and the petitioner no.2, who is her son needs a separate room for himself and for his family. In the submission of Shri Jahagirdar, the Appellate Court has not properly appreciated this need.

(3.) NOW it is an admitted position before me that the second floor of the suit building consists of only one tenament which is in possession of the landlords and it is 350 sq.ft. Therefore, the observation of the Appellate Court quoted above, that apart from the kitchen and partitioned room, the landlords have entire second floor in their occupation, is factually incorrect and it is clear that it is only on this basis that the Appellate Court has appreciated the need of landlords in this regard. Therefore, in my opinion the very basis for assessing the need of the landlords is wrong and incorrect. The Appellate Court has further observed in the same paragraph :-