UTTAMCHAND KACHARDAS DAGDE Vs. DAGDULAL SAKHARCHAND GUJRATHI

JUDGEMENT

(1.) THIS is a tenants petition challenging the order dated 2.5.1992 passed by the Additional District Judge, Malegaon, in Civil appeal No.169/89, dismissing the appeal filed by the petitioners and confirming the order dated 16.4.1987 passed by the Civil Judge, Junior Division, Manmad, decreeing the suit for eviction filed by the respondents.

(2.) THE respondent-landlords filed a suit against the petitioners claiming a decree of possession in relation to the suit premises. The trial Court held that the tenants had challenged the user of the suit premises. It also held that defendant No.1, who was the original tenant, created sub-tenancy in favour of defendant No.2 and, therefore, passed a decree of eviction on these two grounds. So far as the ground of bonafide need is concerned, the Court held that the aspect of bonafide need was not established by the landlords. The Appellate Court not only confirmed the decree on the grounds of change of user and sub-letting but reversed the finding of the trial Court on the question of bonafide need.

(3.) THE second ground to be considered now is the ground of change of user. Learned counsel appearing for the petitioners, Shri Gorwadkar, submitted that perusal of the plaint shows that it is the case of the plaintiff-respondents that when the tenancy was created in favour of petitioner No.1, the suit property was given only for the purpose of business and not for residence and because the tenant used the suit premises for business and residence, it amounted to change of user whereas it was the case of the tenants that the tenancy was created for a composite purpose, namely, business-cum-residence and that from the very beginning defendant No.2, who was manager of defendant No.1 was using part of the premises for his residence. Shri Gorwadkar submitted that so far as the claim of the landlords in the plaint that the tenancy was created only for the purpose of business is concerned, the findings recorded by both the courts below are not based on any evidence on record. Shri Rege, learned counsel appearing for the respondents submitted that apart from the statement made by the respondent No.1 in his deposition that tenancy was created only for the purpose of business, the landlord has produced on record municipal records to show that defendant No.1 was residing elsewhere and not in the suit premises initially.