ADINATH BALA UPADHYA Vs. LALLUBHAI RAICHAND SHABA

JUDGEMENT

(1.) There is no merit in this petition filed by the original plaintiff, Adinath Bala Upadhye, under Art. 227 of the Constitution. The plaintiff who died during the pendency of this petition was the owner of the property bearing House No 1870 in 'C' Ward, Laxmipuri, Kolhapur. The building has a ground floor and two upper floors. The suit premises which consisted of five rooms and a verandah on the eastern side of the second floor is in possession of the respondents as tenant. The petitioner filed a suit in the Court of the Civil Judge, Junior Division, Kolhapur, for possession of the suit premises under the Bombay Rent Act on various grounds. The only ground pressed before me is that the premises are reasonably and bona fide required by the petitioner for his personal use and occupation. The requirement mentioned in the plaint is that the petitioner and his family staying on the first floor would shift to the ground floor and the first and second floors would be used for starting a lodging house. It appears that the ground floor was in possession of other tenants and the petitioners had also filed a suit for possession of the ground floor premises against those tenants. Though a decree was passed, by reason of some obstructionist proceedings the petitioners could not get the possession of the premises till the disposal of the appeal.

(2.) On a careful appreciation of evidence led by the parties, both the courts below have recorded a concurrent finding of fact that the petitioner has failed to prove that he bona fide and reasonably required the suit premises for his personal use and occupation as contended by him. The evidence shows that the petitioner was old even when the suit was filed and as stated above died during the pendency of this petition. His one son Vardhman is serving in a Bank. It was the case of the petitioner that the lodging house was to be conductive by the petitioner and his other son Popat. However, it is found that in view of the old age of the petitioner, Popat was looking after the management of the family agricultural lands. In order to support his contention of bona fide requirement, the petitioner relied on a contract for alterations and renovations of the suit premises so as to be useful for the purpose of starting a lodging house. The courts below have not accepted this agreement as genuine and has further found that as per this agreement no steps have actually been taken to carry out the work of alterations and renovations. The main contention of the petitioner-landlord was that his son Popat was to look after the lodging house which claim does not appear to be genuine, having regard to the fact that he has to took after and manage the lands belonging to the family. The concurrent finding of fact recorded by the courts below is based on evidence. The finding is not shown to be perverse or arbitrary in any manner.

(3.) Moreover, on behalf of the respondents an affidavit of his son Mayoor dated March 3, 1987, has been filed in this petition. The contents of this affidavit which are not controverted show that the possession of the ground floor premises ad measuring 18' x 51' was obtained by the petitioner in the year 1984 and after obtaining the possession he again let out the entire ground floor premises to other tenants for conducting their business. One of the tenants is conducting the business in confectionery and the other tenant deals in cloth business. The fact that immediately after obtaining possession of the ground floor premises the petitioner let out the same to third parties clearly shows that he does not require the premises nor does he intend to start a lodging house. In view of this additional circumstances there is no doubt that the petitioner does not require this premises for personal use and occupation as alleged. No other point is urged.