SHAMRAO DINANATH BHATTE Vs. SULOCHANA DIVAKAR PARKAR

JUDGEMENT

(1.) BY this petition, the petitioner challenges the judgment of the Appellate Bench of the Small Causes Court at Bombay in Appeal No.346 of 1980, dated 13.8.1981. The appeal was filed by the petitioner challenging the order of the Additional Judge, Small Causes Court at Bombay, dated 2.4.1980, in R.A.D.Suit No.5472/1975.

(2.) THE facts giving rise to the present petition are that the present petitioner, Shamrao, is monthly tenant in respect of Shop No.13 in a building situate at the Corner of Gokhale Road and N.C.Kelkar Road, Dadar, bearing Plot No.177, T.P.S. No.IV, Mahim Division, Bombay. Respondent No.1, Sulochana, filed R.A.D.Suit No.5472/1975 before the Small Causes Court at Bombay, claiming that the shop premises were given to her on licence by the present petitioner and therefore she is a protected licensee of the premises, being in the premises on 1.2.1973. She also claimed a mandatory injunction against defendants Nos. 2 to 11, who are respondent Nos. 2 to 11 in the present petition, directing them to deliver possession of Shop No.2 in the new building to her, namely the plaintiff in the suit. It appears that the entire building was purchased by the respondent No.2 Shri Shiv-Sena Trust. They wanted to erect a new building on the plot and therefore possession of Shop No.13 was handed over to the respondent No.2-Trust pursuant to an agreement entered into on 7.4.1975 between the petitioner and the said Trust whereby it was agreed that in the new building to be constructed on the plot, a shop will be allotted to the petitioner. Pursuant to that agreement, new building has been constructed on the plot and Shop No.2 is available for allotment. The respondent No.1 therefore claimed that it is she who is entitled to the possession of that shop as she is sub-tenant of the petitioner. In the civil suit, the respondent No.1 had filed an application for injunction and by order dated 4.7.1978, there was an injunction issued against the Trust and its Trustees restraining them from handing over possession of the Shop No.2 in the new building to the present petitioner.

(3.) PERUSAL of the plaint allegations shows that it is the case of the plaintiff-respondent No.1 in the suit that a sub-tenancy was created in her favour by the agreement dated 3.9.1962. Perusal of the judgments of the Courts below shows that they have found that, according to the petitioner he was conducting a bicycle repair business in the premises at Shop No.13. However, in the agreement, he has not specified the nature of the business that he was carrying on in the suit shop. It is further found by the Courts below that the respondent No.1 was carrying on the business of library and book-selling in the suit premises. The Courts have found that in the agreement, it is nowhere stated that the stock-in-trade would be transferred to the respondent No.1- plaintiff. The Courts have also found that pursuant to the agreement dated 3.9.1962, the respondent No.1 was placed in exclusive possession of the premises and that she was carrying on her library business in the premises to the total exclusion of the petitioner. Thus, the finding of both the Courts below on this aspect of the matter, namely, that by the agreement dated 3.9.1962, a sub-tenancy was created in favour of the respondent No.1, is based on the evidence on record. The Courts below have recorded this finding of fact after appreciating the evidence led by both the parties in the suit. The Courts below have further found that the plaintiff-respondent No.1 continued to pay rent to the present petitioner upto April 1975. Therefore, it is obvious that even after expiry of the period which was mentioned in the agreement dated 3.9.1962, the respondent No.1 continued on the premises. The Courts have found that as the plaintiff continued in the premises as sub-tenant on 1.2.1973, she becomes a deemed tenant of the premises and her sub-tenancy is protected by law. The trial Court, in paragraph 18 of its judgment has observed thus :