GOKALDAS HANSRAJ Vs. KISHANLAL LAXMIDAS

JUDGEMENT

(1.) THIS is a petition challenging the Order dated 19th January, 1995 passed by the Appellate Court under the Bombay Rent Act dismissing the Appeal No.173 of 1992 filed by the Petitioner and confirming the order dated 10th March, 1992 passed by the Small Cause Court, Bombay, in R.A.E.Suit No.217/1385 of 1971 dismissing the said suit.

(2.) THE facts giving rise to this petition are that the suit premises are Block No.19, 2nd floor, Diamond Building. Lohar Chawl, Bombay 400 002. It consists of two rooms. One Dindayal Damodar was the original tenant of the suit premises. He has expired on 23rd March, 1965. The present Petitioner Gokaldas Hansraj claims to have become the tenant of the premises after the death of said Dindayal Damodar as a result of the Will executed by the deceased Dindayal Damodar. The present petitioner had filed RAE Suit No.3313 of 1968 on 26th June, 1968 for eviction of one Hansaben Laxmidas Dawawala, who was described in the plaint as sub-tenant of the suit premises. The said suit was decreed in favour of the Petitioner as it was not contested by Hansaben Laxmidas Dawawala. During the execution of the decree passed in that suit, Respondent No.1 Kishanlal Laxmidas and Respondent No.2 Shakuntala Kishanlal obstructed execution. The Obstructionist Notice No.176 of 1969 taken out by the present Petitioner Gokaldas was discharged by the Court by its order dated 17th July, 1970. Therefore, the petitioner filed the RAE Suit No.217/1385 of 1971 praying for setting aside the order dated 17th July, 1970 passed by the learned Judge, C.R.No.7, in Obstructionist Notice No.176 of 1969. To this suit, Kishanlal Laxmidas and Shakuntala Kishanlal, who had obstructed the execution, and the other legal representatives of Laxmidas were joined as Defendants. In the suit, it is the case of the petitioner that the sub tenancy was created by Dindayal Damodar in favour of Hansaben Laxmidas Dawawala, who was the wife of Laxmidas, who is the tenant of the adjoining Block No.20 and therefore, it is the case of the Petitioner that the decree of eviction secured by the Petitioner against Hansaben is legal and valid, and the legal representatives of Laxmidas who was the husband of Hansaben, have no interest in the suit premises. The main defence of the Defendants was that it is Laxmidas who was the original sub-tenant and not his wife Hansaben, therefore, the decree secured by the Petitioner against Hansaben alone was illegal in the absence of the other legal representatives of the original sub-tenant Laxmidas. Both led oral and documentary evidence and the trial Court by its order and judgment dated 10th March, 1992 dismissed the said suit. The petitioner carried an appeal to the Appellate Court and that appeal has also been dismissed on 19th January, 1995. It is against these two orders, the present Petitioner has come before this Court by way of present Petition.

(3.) THE Courts below have also relied on the Will executed by Laxmidas Dahyabhai and the family arrangement dated 30th April, 1967. I find that the submissions that have been urged by the learned counsel for the petitioner relate to the appreciation of the evidence on record. The Courts below have recorded their findings after appreciating the evidence on record. The evidence cannot be reappreciated by this Court in its jurisdiction under Article 227 of the Constitution of India. The Supreme Court, in para 7 of its judgment in the case of Mohd.Yunus V. Mohd.Mustaqim and Ors. reported in AIR 1984 Supreme Court 38, has, insofar as jurisdiction of this Court under Article 227 of the Constitution is concerned, observed as follows: