MOHAMED SHAFTI LALMOHAMED Vs. MOHAMED YASIN MOHAMED HUSAIN

JUDGEMENT

(1.) BY this petition filed under Article 227 of the Constitution of India, the petitioner challenges the order passed by the Division Bench of the Small Causes Court at Bombay dated 24.6.1986 in appeal No.479/1977. That appeal was filed by the respondents challenging the judgment and decree dated 29th August 1977 passed by the Civil Judge, of the Small Causes Court at Bombay in R.A.E. No.4652/1974. That suit was filed by the petitioner, claiming therein that they are owners of property No.54 Kasaiwada, Kurla, Bombay and that the respondent is a tenant of room No.4 in the suit property. The landlord sought decree of eviction against the tenant on two grounds, namely, that the tenant is not ready and willing to pay the rent and that the tenant has made permanent alterations in the suit premises without written consent of the landlord. The trial court found against the landlord on the question of default committed by the tenant in payment of rent. However, the trial court found in favour of the landlord on the question of permanent alterations. As a result, the suit filed by the landlord for a decree of eviction against the tenant was decreed in favour of the landlord and the tenant was directed to vacate the suit premises. In the appeal filed by the tenant, the appellate court, however, reversed the finding recorded by the trial court that the tenant has erected permanent structure on the suit premises without written permission from the landlord. As a result the appeal was allowed. The judgment and decree passed by the trial court was set aside and the suit filed by the landlord was dismissed. It is this judgment of the appellate court, which is challenged by the landlord in the present petition.

(2.) WHEN the petition was called for final hearing, none appeared for the petitioners and none appeared for respondents. However, I have gone though the record. In this petition the only question that arises for consideration is whether the appellate court was justified in setting aside the finding recorded by the trial court that the tenant has erected permanent structure on the suit premises without consent of the landlord. Perusal of the record shows that the allegation was made by the landlord in relation to three structures, namely, loft, mori, and otla. So far as loft is concerned, both the courts below are unanimous that it does not amount to permanent structure. So far as the other two constructions are concerned, the appellate court after appreciating the evidence on the record has held that the landlord has failed to prove that the otla and mori are part of the demised premises. The appellate court after going through the evidence of the Architects has held that the landlord has failed to prove as to when these structures were raised. It is thus clear that the finding recorded by the trial court has been reversed by the appellate court after appreciating the evidence on the record. Therefore, it is clear that entire case turns on appreciation of the evidence on the record. I do not find any material or manifest error of law in the findings recorded by the appellate court. In my opinion, therefore, no interference in the jurisdiction of this court under Article 227 of the Constitution of India is called for.