KRISHNA S SAPRE Vs. RAJARAM VASUDEO BADVE

JUDGEMENT

(1.) BY this petition under Article 227 of the Constitution of India, the Petitioners challenge the order dated 20th June, 1995 passed by the Fourth Additional District Judge, Pune in Civil Appeal No. 498 of 1994. By the order dated 20th June, 1995 the Fourth Additional District Judge, Pune dismissed the Civil Appeal No.498 of 1994. The Civil Appeal No.498 of 1994 was filed by the Petitioners challenging the judgment dated 24th March, 1994 passed by the VIIth Additional Judge, Small Causes Court, Pune in Civil Suit No.199 of 1989. By that judgment, the trial Court decreed the suit filed by the Respondent for a decree of eviction against the petitioners. Civil Suit No.199 of 1989 was filed by the Respondents claiming that they are the owners of House No.336/B, Rasta Peth, Pune. They claimed that one block of three rooms from this house was let out to Krishna S.Sapre of whom the present petitioners are the legal representatives. The decree of eviction was sought by the landlord against the tenant on two grounds namely (i) that the tenant has acquired alternate accommodation and (ii) that the landlord needs the suit premises for their bonafide occupation. The trial Court decreed the suit on the ground that the tenant has secured alternate accommodation. The appeal filed against that judgment by the tenant as stated above has been dismissed. Hence, the present petition is directed against the orders of both the Courts below under the Bombay Rent Act passing the decree of the eviction against the tenants.

(2.) IT is the case of the landlord that the tenants have secured vacant possession of a bungalow situate in Parishram Society at Viman Nagar, Pune where the tenants are presently residing and therefore accordingly to the landlord he is entitled to a decree of eviction against the tenants. The learned Counsel for the petitioners urged before me that the bungalow in Parishram Society which is presently being occupied by the tenants was owned by sister of their deceased father Krishna by name Damayanti. She expired on 13th May, 1985. The learned Counsel submitted that the Co-operative Society in whose lay out the bungalow is constructed had issued a public notice for auctioning the bungalow for recovery of certain amounts which were due to that society. The learned Counsel submitted that the Petitioners have approached the Co-operative Court challenging the action of the Society and the Co-operative Court has passed interim order staying the auction of the property and has also made an order protecting possession of the petitioners' property which was owned by Damayanti. He further urged that apart from the original tenant, Krishna's two sisters have also a share in the property left behind by Damayanti and therefore in the submission of the learned Counsel acquiring of the bungalow by the tenants would not amount to acquiring vacant possession of premises by the tenants so as to make him liable for a decree of eviction under Section 13(1)(1) of the Act. For this purpose the learned Counsel relied on a judgment of the Supreme Court in the case of B.R.Mehta versus Smt.Atma Devi & Ors. reported in A.I.R. 1987 S.C. 2220 and a judgment of the Gujarat High Court in the case of Francis Dias versus Harde Sumatilal Halabhai reported in A.I.R. 1985 Gujarat 171. It is led down in both these judgments that in the alternate premises the tenant must have a right. Even assuming that the submission of the learned Counsel on the basis of the above two judgments referred to above that in the alternate premises the tenant must have a right is taken to be correct then also in my opinion no fault can be found with the judgments of both the Courts below impugned in this petition. It is to be seen here that the deceased tenant Krishna in his deposition has stated that his sister Damayanti expired on 13th May, 1985. He has also stated that he has paid various amounts to the Society towards construction costs of the bungalow. It is also clear from the record that since the death of Damayanti, it is the original tenant and his legal representatives who are dealing with the property and are in possession of the property. Their possession of the property is also protected by the orders of the Co-operative Court. It is true that the tenant has said that his two sisters are claiming a share in the property but it is to be seen that Damayanti has expired on 13th May, 1985 and till today the two sisters of original tenant Krishna have not lodged their claim in any Competent Court claiming shares in the property. Even perusal of the say filed by the two sisters of deceased tenant Krishna filed in Co-operative Court shows that they are not claiming a share in the property but only a right of residence. Taking an over all view of the materials on record, it is clear that the petitioners have a definite interest and right in the bungalow which is being occupied by them presently. It cannot be forgotton that their possession of the bungalow is also protected by the order made by the Co-operative Court. So far as litigation with the Co-operative Society is concerned, that is not a litigation relating to the ownership of the bungalow. The litigation relates to certain amounts that the society is seeking to recover from the owner of the bungalow. In my opinion, therefore, the findings recorded by both the Courts below are based on the materials on record. In a petition under Article 227 of the Constitution of India a concurrent findings recorded by the subordinate court can be disturbed by this Court if it is pointed out that the concurrent findings recorded by the Courts below suffer from violation of principles of natural justice or there is an error of jurisdiction or that there is any manifesto or apparent error of law. In so far as the present case is concerned, there is ample material on record to show that hot only the tenants are presently occupying an independent bungalow but that they have a right in relation to that bungalow. Therefore in my opinion there is no reason to disturb the findings recorded by the Courts below. In the result, therefore, the petition fails and is dismissed. Rule discharged. No order as to costs.