JAGANNATH NARAYAN TIGDI Vs. ALZIRA XAVIER LOBO

JUDGEMENT

(1.) THIS is a petition filed by the original plaintiff-landlord of whom the present petitioners are the heirs and legal representatives. The original petitioner Jagannath died during the pendency of this petition on 5th of June 1996. Civil Application No.1270 of 1997 was filed to bring the legal representative of the deceased Jagannath on record and I have, by an order separately passed on that Civil Application, allowed that Civil Application.

(2.) THE suit premises are situate in House No.126-E, which comprises of 6 rooms, at Worlikoliwada, Prabhadevi, Bombay. The respondent is tenant in relation to 3 rooms in this house, namely, Rooms 'D', 'E' and 'F'. The original petitioner filed civil suit, being R.A.E. Suit No.1186/1979 before the Small Causes Court at Bombay seeking a decree of possession against the respondent-tenant on the ground that he needs the premises bonafide for accommodating the members of his joint family. In the suit filed by the original petitioner-landlord Jagannath, it was his case that he along with his two brothers, namely, Mahadev and Jivan constituted a Hindu joint family and this joint family owns 3 house properties, namely, House No.54A, one Patra Chawl and the suit house, namely House No.126-E. He contended that in his joint family he has 20 members and the accommodation available to the joint family is not sufficient to accommodate all the members of the joint family and therefore he needs the suit premises bona fide for his own occupation. After trial, the trial Court by its judgment dated 29.9.1982 held that the landlord Jagannath had proved his case that his family needs the suit premises bona fide for his own occupation. However, considering the aspect of comparative hardship, the trial Court directed the tenant-respondent to hand over possession of only one room in her occupation, namely Room 'D'. The tenant was to continue to occupy Rooms 'E' and 'F'. This partial decree passed by the trial Court was challenged by the tenant by filing Appeal No.591/1982. That appeal has been allowed by the Appellate Court by its judgment dated 6.4.1983. The Appellate Court reversed the finding recorded by the trial Court on the question of bona fide need and dismissed the suit filed by the landlord Jagannath. It is against this order of the Appellate Court that the present petition has been filed.

(3.) LEARNED Counsel for the respondent, on the other hand, submitted that so far as the suit house is concerned, it is presently occupied by Shashikant, who is the son of the landlord Jagannath Jivan, who is the brother of the landlord Jagannath and Vishwanath who is the son of Jivan. He contended that, considering the accommodation that is already available with the landlord, it is not necessary for the landlord to occupy the room which is presently occupied by the tenant, namely Room 'D'. He further pointed out that it is clear from the judgment of the trial court that the trial court had recorded a finding that additional room is necessary for the family of the landlord and the tenant was directed to vacate Room 'D' because Dattatray, who is son of Jagannath, namely the landlord, was to get married and for accommodating him, additional room, according to the trial court, was necessary. Learned counsel for the respondent urged that in view of the additional affidavits filed in this petition, it is now an admitted position that Dattatray is presently residing in Zimbabwe and therefore, in the submission of the learned counsel, it cannot be said that the joint family of the landlord is in need of additional accommodation.