HARACHAND ANANDRAO JAMALPURE Vs. GOPAL SHRINIVAS SIRASIKAR

JUDGEMENT

(1.) BY this petition filed under Article 227 of the Constitution of India, the petitioner challenges the order dated 30th August 1982 passed by the learned Extra Assistant Judge, Solapur in Civil Appeal No.345/1980. Civil Appeal No.345/80 was filed by the petitioner-tenant, challenging the order dated 21st February 1980 passed by the learned IVth Joint Civil Judge, Junior Division, Solapure in Regular Civil Suit No.994/1974. The Regular Civil Suit No. 994/74 was filed by the respondent-landlord, claiming therein that he is owner of the Municipal House No.395 situated at West Mangalwar Peth, Solapur and that the petitioner is a tenant of two rooms in the said house. The landlord sought a decree of eviction against the tenant on several grounds. One of the grounds, was that the tenant has acquired suitable residential accommodation in as much as he has purchased a bungalow of one Vardhaman Shastri for Rs.65000/- (Rs.Sixty five thousand). The Trial Court by its judgment dated 21.2.1980 recorded a finding in favour of the landlord on the ground mentioned in Clause (1) of sub-Section (1) of Section 13 of the Bombay Rent Act and passed a decree of eviction against the tenant. The decree was challenged before the Appellate Court by the tenant and the Appeal was dismissed. The tenant has, thus approached this Court, challenging the judgments of both the Courts below.

(2.) THE learned counsel appearing for the petitioner submits that it is clear from the provisions of Section 13(1)(1) of the Bombay Rent Act, that in order to get a decree against the tenant under that section, the landlord has to establish that the tenant has acquired a suitable residence after the coming into operation of the Act. The learned counsel further submits that it was the case of the landlord, that the tenant has acquired bungalow from one Vardhaman Shastri by way of purchase. However, the tenant had produced material on the record to show that the said bungalow was purchased by his son. In the submission of the learned counsel, the moment the tenant pointed out to the court that the bungalow was purchased by his son, the burden was on the landlord to establish that the bungalow was purchased by the tenant himself but in the name of his son. In the submission of the counsel, there is no material produced before the Court by the landlord even to suggest that the consideration for purchase of the bungalow had flown from the tenant. The learned counsel submits that the Courts below have relied on conjecture and surmises to reach a conclusion that the son of the petitioner-tenant, who was in service only as a teacher was in no position to purchase the bungalow. The Appellate Court has even referred to the statement in the deposition of the witnesses, which do not exists.

(3.) NOW , it is an admitted position on record that the son of the tenant has purchased a bungalow of one Vardhaman Shastri for consideration of Rs.65000/-. It is also on the record that the son of the tenant is in service as a teacher. The tenant had produced the sale deed of the bungalow, which shows that the bungalow was purchased by the son of the petitioner-tenant and that the consideration was paid by him. In my opinion, the moment the sale deed was produced by the tenant, showing that it is not the tenant who purchased the bungalow, but that it is his son who purchased the bungalow, the burden shifted on the landlord to show that though the bungalow is purchased by the son but the consideration for the purchase has flown from the tenant and not from the son of the tenant. In the present case, the learned counsel for the respondent also conceded that except for saying that at the time when the purchase was made, the tenant had received an amount of gratuity and provident fund after his retirement from service, the landlord has not led any evidence to show that the consideration was actually paid by the tenant. It has also come on the record that the son of the petitioner-tenant is in service as a teacher. The Trial Court referring to this aspect of the matter has concluded that as the son of the petitioner is in service for the last 10 years only as a teacher, he can be in no position to purchase the bungalow. It is pertinent to note here that there is no material produced on record as to in which school son of the petitioner-tenant was working as a teacher and what salary is drawn by him. In my opinion, the inference drawn by the Trial Court is impossible. An inference about the capacity of the son of the petitioner to purchase the bungalow cannot be drawn merely from the fact that he is working as a teacher. It is further to be seen here that the Appellate Court while recording a finding in favour of the landlord has observed that the son of the vendor of the bungalow, who has been examined as a witness, has stated that his father has agreed to sell the bungalow to the tenant. However, perusal of the deposition of the son of the vendor shows that he has not made any such statements. It is thus clear that the Courts below have taken into consideration the material which is not on record for recording a finding in favour of the landlord. In my opinion, the basic approach adopted by the Courts below was wrong that the burden was on the tenant to prove as to who has paid the amount for purchase of the bungalow, despite producing the sale deed on record, which shows that the purchase was made by the son of the petitioner and that his son had actually paid the amount of consideration. In my opinion, the sale deed established that it is the son of the petitioner who had paid the amount of consideration and had purchased the bungalow. The burden was therefore, on the landlord to show that the consideration was not actually paid by the son of the petitioner-tenant, but by the petitioner-tenant himself. As I find that the basic approach adopted by the Courts below was wrong, in my opinion, this is a fit case where this Court should interfere with the orders of the Courts below in exercise of its jurisdiction under Article 227 of the Constitution of India.