IBRAHIM HAJI SHAKOOR SADULLAH Vs. M D SALIAN

JUDGEMENT

(1.) BY this petition filed under Article 227 of the Constitution of India, the petitioner challenges the order dated 23-10-1986 passed by the Division Bench of the Small Causes Court at Bombay in Appeal No.471/1976. That appeal was filed by respondent No.1 - M.D. Salian, challenging the judgment and decree dated 21-4-1976 passed by the Single Judge of the Small Causes Court at Bombay in R.A.E. Suit No. 3457/1968. That suit was filed by the petitioner, claiming therein that he is owner of Chhotumiya Chawl now known as "Haji Shakoor Chawl" bearing No.96 situated at S.V. Road, Jogeshwari, Bombay and that respondent No.1 is a tenant in shop No.3. The landlord sought decree of eviction against the tenant on the ground that the tenant has caused nuisance and annoyance to the adjoining occupiers, that the tenants has carried our additions and alterations of permanent nature without consent of the landlord in the suit premises and that the tenant has caused waste and damage. The trail court however, found in favor of the landlord on only one ground, namely carrying out works of permanent nature in the suit premises without obtaining consent of the landlord and the trail court decreed the suit in favour of the landlord and directed the tenant to vacate the suit premises In the appeal filed by the tenant, however,the appellate court on re-appreciation of the evidence on the record, reversed the findings recorded by the trail court in favor of the landlord and held that the evidence on record was not sufficient to hold that the tenant has made any permanent construction or alterations in the suit premises without consent of the landlord. The appellate court allowed the appeal, set aside the judgment and decree passed by the trail court and dismissed the suit. In this petition filed by the landlord, therefore it is the order passed by the appellate court which is challenged.

(2.) WHEN the petition was called for final hearing none appeared for the petitioner and none appeared for the respondents. However, I have gone through the record of the case. Perusal of the record reveals that it was the case of the landlord that in so far as the ground of permanent construction is concerned, the tenant has demolished rear wall; the bhatti and mori and has constructed a new wall and a room in the hotel and he has removed the signboard and replaced the same by a new one. It was further alleged that the tenant has constructed a gutter in the rear side of the building. It was further alleged that the tenant removed the roof and put iron bars and fixed the same with wooden frame. According to the landlord, this has been done without obtaining consent of the landlord. The appellate court found that in order to appreciate the contentions of the landlord that these constructions in the suit premises were made by the tenant which was necessary for the landlord firstly to establish what was the nature of the premises originally and therefore, it was necessary for them to place original plan on the record. The appellate court has found that in the absence of the landlord placing the original plan on the record, it cannot be said and proved that there are any additions and alterations made in the suit premises. The appellate court has held that deposition of the Architect, examined by the landlord is full of errors and if the admissions given by the Architect are considered then a conclusion cannot be drawn from that deposition that the tenant has made permanent construction. The appellate Court has further found that the tenant had produced a letter of permission granted to him for repairs by the previous landlord in the year 1962 and that the tenant had carried out the repairs in the suit premises pursuant to that permission. The above permission was given by the previous landlord because there was a notice issued by the corporation for carrying out repairs. It appears that there was some objection raised to the admission of the document in the evidence, namely the consent given by the previous landlord. However, the appellate court has found that the lower court marked that the document as Exh.3 and admitted it in the evidence at the instance of the learned counsel for the plaintiff himself. It is thus clear that the appellate court has reversed the findings recorded by the trail court after appreciation of the evidence on the record. The entire case turns thus on appreciation of the evidence on the record. It is further to be seen here that the appellate court categorically observed that it was not even the case of the landlord that because of these alleged alternations and additions made in the suit premises, the suit premises are damaged in any way, In these circumstances therefore, in my opinion, this is not a fit case where the findings of facts recorded by the appellate court can be disturbed by this court in its jurisdiction under Article 227 of the Constitution of India.