ABDUL MAJID HAYATKHAR PATHAN Vs. ABDUL JABBAR DAVALSAHEB

JUDGEMENT

(1.) BY this petition filed under Article 227 of the Constitution of India, the petitioner challenges the order 9.9.1986 passed by the VIIth Addl. District Judge, Pune in Civil Appeal No.940/84. That appeal was filed by the respondent No.1 Abdul Jabbar, challenging the order dated 23.1.1984 passed by the IIIrd Addl. Small Causes Judge at Pune in Civil Suit No.691/1981. That Civil Suit was also filed by the respondent No.1 Abdul Jabbar, claiming therein that he is owner of house No.223 at Ganj Peth, Pune and that the suit premises were initially let out to the father of the original defendants No.1 and 4 as a tenant. The landlord sought a decree of eviction on the ground that the landlord needs the suit premises for his own occupation. The trial Court, however, found against the landlord and dismissed the suit. In the appeal filed by the landlord, however, the appellate court reversed the findings recorded by the trial Court allowed the appeal and set aside the order passed by the trial Court and decreed the suit for a decree of eviction in favour of the landlord and directed the tenant to vacate the suit premises.

(2.) PERUSAL of the record of the case reveals that the suit shop consists of 4 Khanas, which was initially let out to the father of the defendant Nos.1 and 4. Thereafter, it was given to the defendant No.2, who was nephew of the original tenant. However, the defendant No.2 also vacated the shop and presently it is the defendant No.3 i.e. the present petitioner Abdul Majid, who is occupying the shop. It appears that there was some controversy between the parties before the courts below as to whether the licence granted in favour of the present petitioner is valid or not. There was also a controversy whether the defendant No.3 i.e. the present petitioner becomes a tenant of the suit premises or not. However, it appears from the order of the appellate Court that the appellate Court has treated defendant No.3 i.e. the present petitioner as the sub-tenant of the premises and has considered the question of his hardship. It appears that it was the case of the landlord that his son has passed Pharmaceutical examination and that for setting up a chemist shop for his son he needs the suit premises. The appellate court on the basis of the evidence on the record has found that the landlord has made out his need for the suit premises. The appellate Court has also considered the question of comparative hardship. The appellate Court has observed that as admittedly the defendant Nos. 1 and 4 would be legal representatives of the original tenant, are not the tenant-in possession of the suit shop and therefore, there is no question of consideration of any hardships to them. As the defendant No.2 also left the shop there is no question of considering the question of hardship to him also. Therefore, the question of hardship to the petitioner is only to be considered. The appellate Court has found that so far as the present petitioner is concerned, the present petitioner already had with him two premises at house Nos. 202 and 138 for his business. The appellate Court then found that the present petitioner is using the premises No.202 at Ganj Peth as a godown and the premises at house no.138 at Ganj Peth for show room. The appellate Court has found that the present petitioner can shift his business to those premises and therefore, there is no question of any hardship being caused to the petitioner. On the other hand, the appellate Court has found that the plaintiff's son has no other shop to start his business of chemist. It is thus clear that the entire case turns on the appreciation of evidence on the record. The appellate Court, which is a court of fact has appreciated the evidence on the record and has recorded findings of facts. I do not find any manifest error of law in the findings recorded by the appellate Court so as to merit interference at the hands of this court in its jurisdiction under Article 227 of the Constitution of India.