DHARMAPPA JARAPPA SHETTY Vs. K R SUNDARAM

JUDGEMENT

(1.) BY this petition filed under Article 227 of the Constitution of India, the petitioners challenge the order dated 11th July 1986 passed by the VIth Additional District Judge, Thane in civil appeal No.365 of 1982. That appeal was filed by the respondents challenging the judgment and decree dated 31st August 1982 passed by the Civil Judge, Junior Division, Kalyan in R.C.S. No. 299 of 1976, that civil suit was filed by the present petitioner Dharmappa claiming therein that he is owner of municipal house No. D-65, situated at Kopar Road, Shastrinagar, Dombivali and that one K.R. Sundaram of whom the present respondent Nos. 1(a) to 1(e) are the legal representatives, was a tenant. The landlord sought a decree of eviction against the tenant under section 13(1)(e) of the Bombay Rent Act. It was the case of the landlord that in the year 1975, the tenant left the suit premises and went to Delhi to his son who was posted at Delhi and the tenancy was assigned by the tenant to his son-in-law, the defendant No.2 who is respondent No.2 in the present petition, according to the landlord, this assignment was unlawful and therefore, a decree of eviction was sought. The Trial Court found in favour of the landlord and decreed the suit in his favour and directed the defendants to vacate the suit premises. In the appeal filed by the defendants, however, the appellate Court reversed the finding recorded by the Trial Court and allowed the appeal, set aside the judgment and decree passed by the Trial Court and dismissed the suit. In this petition filed by the landlord therefore, the order of the Appellate Court is challenged.

(2.) THE learned counsel appearing for the petitioners urged that it is the case of the landlord that the tenant had only one son who was posted at Delhi. The tenant himself was ailing and therefore, the tenant left the suit premises with his family for Delhi and he introduced the defendant No.2 in the suit premises. The learned counsel submitted that the Trial Court had recorded the finding in favour of the landlord after appreciating the entire evidence on record, however, the Appellate Court reversed the finding recorded by the Trial Court without giving any cogent reasons for disturbing the finding recorded by the Trial Court. The learned counsel submitted that the Appellate Court failed to take into consideration even the basic evidence on record.

(3.) NOW , if in the light of these rival submissions the record of the case is perused, it becomes clear that the landlord in his deposition in clear terms had stated that the original tenant shifted to Delhi seven to eight months before the service of the suit notice on the tenant. The suit notice was served on the tenant in the month of April 1976. The landlord has also stated that when the tenant shifted to Delhi, he shifted alongwith his household articles and kept the premises vacant. It was his case that the defendant No.2 was introduced in the premises unauthorisedly by the tenant. Now, it is clear from that evidence on record that it is not in dispute that the defendant No.2 and his wife who is a daughter of the original tenant, started residing and are presently residing in the suit premises. Therefore, the only question that was required to be considered was whether the defendant No.2 is residing in the suit premises as an assignee of the original tenant or as a member of his family. It appears that the Appellate Court has relied on the entries in the ration card to hold that the defendant No.2 was residing in the suit premised alongwith the members of the tenant's family. However, perusal of the entries in the ration card shows that the entries are contrary to the admitted position between the parties. It is clear from the deposition of the son of the original tenant Ramaswami that at Delhi his father was looked after during his illness by his mother and sister Kalyani. It is thus clear that Kalyani was not living in the suit premises during the period from 1975 to 1978. In so far as the presence of Janki is concerned, it is true that the suggestion has been given to the landlord during his cross-examination that when the tenant left the premises for Delhi, his daughter Janki who is stated to be mentally retarded was left behind and to look after her, the defendant No.2 came to the suit premises. However, in his entire deposition, the defendant No.2 has no where said that when his father-in-law left for Delhi, Janki was left behind and to look after her, he came to the suit premises. It is further to be seen that so far as the son of the original tenant Ramaswami is concerned, in his examination-in-chief, he says that Janki and Mahalaxmi (Janki is the daughter of the original tenant who is alleged to be mentally retarded and Mahalaxmi is the wife of the defendant No.2) were staying the suit premises during the illness of his father. However, during his cross-examination, he says that during the illness of his father, his mother and sisters were at Delhi. He also says that he does not remember whether the names of his mother and sisters were dropped from that ration card. It is further interesting to note here that there is no documentary evidence brought on record on behalf of the defendants to show that though the tenant, his wife, his other daughter Kalyani left the suit premises for Delhi, Janki continued in the suit premises. In my opinion, the theory of the defendant No.2 coming to the suit premises as a caretaker of Janki also cannot be accepted because had that been so, there was no reason for defendant No.2 to continue in the suit premises as according to him, after the death of his father-in-law, his mother-in-law, the widow of the original tenant returned to the suit premises. The learned counsel for the defendants lead much stress on the suit summonses being served on the widow of the original tenant and daughter Kalyani at the suit premises. However, in my opinion, an inference cannot be drawn of their continued residence in the suit premises, because the summonses were served on the address of the suit premises. Now, it is a settled law that the Appellate Court, which is, no doubt, a Court of fact, cannot disturb the findings recorded by the Trial Court without giving cogent reasons for getting aside those findings of fact recorded by the Trial Court. It is further to be seen here that the Appellate Court has excluded from its consideration the material part of the deposition of the two witnesses examined on behalf of the defendants viz. the defendants No.2 and the son of the original tenant Ramaswami and therefore, in my opinion, the appellate Court was not justified in disturbing the findings recorded by the Trial Court .