GAURISHANKAR J GANDHI Vs. NEW POONA EDUCATION SOCIETY

JUDGEMENT

(1.) BY this writ petition filed under Art 227 of the Constitution of India, the petitioners seek to challenge the correctness of the judgment dated 24.7.1986 passed by 2nd Extra Joint District Judge, Pune whereby he dismissed the appeal and affirmed the judgment passed by 2nd Additional District Judge, Small Causes Court, Pune on 24th October, 1983 though on different grounds.

(2.) THE petitioners (for short, 'landlord') filed the suit for eviction against the respondents herein (for short, 'tenant') inter alia on the grounds of change of user, subletting, nuisance and permanent additions and alterations without the prior consent of the landlord in the Court of Small Causes, Pune at Pune. The case of the landlord pleaded in the plaint is that the tenant had carried-out permanent additions and alterations in the suit premises without its consent and knowledge by removing doors and windows, demolishing common wall in between two rooms, converting two rooms into one big room and by demolition of walls. The landlord also averred that the suit premises were let-out to tenant for running only primary school but it sublet portion of the premises to different classes and school. The tenant allowed the suit premises for holding drama rehearsals and marriage and thread ceremonies and for running Adarsh Shishu Shala. According to the landlord, the tenant also changed the user of the premises. About the ground of nuisance, the landlord pleaded that children in the school caused disturbance, nuisance and annoyance to other tenants of the plaintiff and to the plaintiff. Due to increased number of schools, classes and activities run by or allowed to be run by the tenant, existing latrines, urinals and bathrooms are being subjected to a tremendous pressure. The premises have become unhygenic and cause great nuisance to the plaintiff and other tenants in the property. The tenant contested claim of the landlord and denied the allegations on all grounds. The trial court framed five issues in all. After recording evidence though the trial court found that the tenant has sublet suit premises to some third parties, changed the user of the premises and was guilty of conduct amounting to nuisance and annoyance but dismissed landlord's suit on the ground that the discription of suit property was not given properly. Dissatisfied with the judgment and decree passed by the Small Causes Court dismissing the landlord's suit, the landlord preferred appeal which was ultimately heard and disposed of by 2nd Extra Jt. District Judge, Pune at Pune. The appellate court permitted the landlord to amend the plaint about description of the suit property and thereafter heard the learned counsel for the parties on all issues. The appellate court found as a fact that landlord failed to prove that it has sublet the premises in question. The appellate court also found that neither the change of user has been proved by landlord nor the ground of nuisance and annoyance could be established. The appellate court, therefore, dismissed the landlord's appeal. 2.Mr. Patwardhan, the learned counsel for landlord only challenged the finding of the appeal court on the ground of subletting. According to him the appellate court in very cursory and cryptic fashion reversed the finding of the trial court on the issue of subletting without taking into consideration the entire evidence on the point of subletting. Mr. Patwardhan would submit that the evidence led by the plaintiffs clearly establishes the ground of subletting and there was no justification for the appellate court to hold otherwise. Mr. Patwardhan accordingly took me through the relevant evidence led by the landlord and also the cross-examination of the defendants witnesses.

(3.) THE trial court held the issue of subletting in favour of landlord by holding that the induction of Vikas Krida Mandir in suit premises and allowing Adarsh Shikshan Shala being run therein amounted to subletting. The appellate Court however reversed this said finding. It is admitted position that Adarsh Shishu Shala is run by tenant society as part and parcel of its institution. The learned counsel for landlord could not dispute the fact that Adarsh Shishu Shala is run by tenant institution as part of it. Adarsh Shishu Shala is a montessory school run by tenant and, therefore, the appellate court rightly held that use, enjoyment and possession of the suit property or running of the school in the name of Shishu Shala was not subletting in any manner whatsoever. The main thrust of the argument of Mr. Patwardhan was also with regard to the school run in the name of Vikas Krida Mandir. He vehemently submitted that Vikas Krida Mandir is run by a different organisation and has nothing to do with the tenant institution and, therefore, induction of Vikas Krida Mandir in the suit premises amounts to subletting. Upon perusal of the evidence I find that DW-1 who is also secretary of the tenant deposed in unequivocal terms that Vikas Krida Mandir is run in the suit premises from June-1982. The said school is primary school having four teachers, the salary of the teachers and expenses of running the school are paid by tenant society and it has also passed resolution for taking over the management of Vikas Krida Mandir. The DW-1 has deposed that prior to June-1982 Vikas Krida Mandir was run by Vikas Krida Mandir Shikshan Mandal but by an agreement dated 1st May, 1982 between the tenant and Vikas Krida Mandir Shikshan Mandal the management has been taken over by tenant society. The said agreement has been placed on record. Though this witness has been cross-examined extensively, his deposition in-chief has not at all been shattered in any manner. The available evidence, therefore, shows that pursuant to the agreement between the tenant and Vikas Krida Mandir Shikshan Mandal, from the month of June, 1982 the said school is managed and run by tenant. The salary of the teachers and expenses of the school Vikas Krida Mandir are borne by tenant. There is no separate account of Vikas Krida Mandir. The tenant institution has taken over the management of Vikas Krida Mandir. It is true that before taking over the management the tenant did not take appropriate permission and sanction from the concerned education department but the fact remains which is amply established by evidence on record that Vikas Krida Mandir is run by tenant after the agreement of merger was entered into and it is the tenant who is managing and running the Vikas Krida Mandir. In making out a case for sub-letting, parting with possession or assignment warranting eviction of tenant, the landlord has to establish positively that demised or part of it are in possession of such sub-lessee or assignee on exclusion to the tenant. If the tenant retains control over the suit premises, question of sub-letting or parting with possession or assignment cannot arise. Legal control of the tenant over the tenanted premises is sufficient to negative landlords's claim for eviction on the ground of sub-letting. When the tenant has taken over of management of Vikas Krida Mandir and running that school under its control in the tenanted premises, it cannot be said that tenant does not have legal control over the tenanted possession or that tenant does not retain legal possession over the tenanted premises. The running of school Vikas Krida Mandir under its management by the tenant without permission of Education Department may entail consequences flowing from such non-permission but by such at it cannot be inferred that tenant has sub-let or parted with possession. The deposition of PW-7 pressed in service by learned counsel for the landlord also does not help much because he has testified in his cross-examination that the education department of the Corporation has no knowledge about that institution which runs Vikas Krida Mandir. Therefore, it cannot be said that the tenant has sublet or parted with or assigned the suit premises of any part thereof to Vikas Krida Mandir to its exclusion or that the tenant does not retain lawful possession over the suit premises.