VITHAL ABAJI BARGE Vs. KRISHNA TUKARAM ACHARYA

JUDGEMENT

(1.) BY this petition filed under Article 227 of the Constitution of India, the petitioner challenges the order dated 28.9.1983 passed by the II Extra Assistant Judge, Satara, in Regular Civil Appeal No.381/1981. That appeal was filed by the present respondent challenging the judgment and decree passed by the Civil Judge, Junior Division, Koregaon, dated 23.10.1981, in Civil Suit No.33/1976. That civil suit was filed by the present petitioner claiming therein that he is owner of southern half of City Survey No.552/2A/1A of Koregaon. He claimed that there was a shed constructed on this land which was previously owned by his brother Baburao. Baburao executed a Will bequeathing the property to the petitioner. It is further alleged that this property was given on lease by agreement dated 1.7.1969 to the respondent which is being used by him for running a hotel and also for residence. The landlord claimed a decree of eviction against the tenant on the ground that the tenant is not ready and willing to pay rent. The suit was resisted by the tenant who claimed that the petitioner is not the owner of the suit premises and that the suit premises, on the death of Baburao, have devolved on his wife. The tenant claimed that he has been paying rent to the widow of Baburao. The trial court by its judgment dated 23.10.1981 held that by virtue of the Will executed by Baburao, the present petitioner has become the owner of the property and therefore he is the landlord. The trial Court also held that the tenant has failed to prove that he was paying rent to the widow of Baburao. The Court held that even after receiving the demand notice, the respondent-tenant did not make payment of rent to the petitioner-landlord and therefore it concluded that he is not ready and willing to pay rent. In the result, a decree for eviction of the respondent was passed by the trial Court. In the appeal filed by the tenant, the appellate Court held that the petitioner has proved his title to the suit property. It also held that the provisions of the Bombay Rent Act were applicable to the suit property. However, the appellate court held that the tenant cannot be said to be not ready and willing to pay rent; with the result, the appeal was allowed and the decree of eviction passed against the tenant was set aside. It is this judgment of the appellate court which is challenged in the present petition.

(2.) WHEN the petition was called for final hearing, none appeared for the petitioner. However, with the help of the learned counsel for the respondent, Kum.Rumana Bagdadi, I have gone through the record of the case. It is revealed that so far as the findings recorded by the trial court that the petitioner is owner of the suit premises and that the provisions of the Bombay Rent Act are application to the suit premises are concerned, the appellate court has confirmed both these findings. Learned counsel appearing for the respondent also did not make any effort to show that the findings recorded by both the courts below on these two points are in any way erroneous.

(3.) IN the result, therefore, the petition succeeds and is allowed. Rule is made absolute in terms of prayer clause (a) with no order as to costs.