VASANT BANDOO KULKARNI Vs. YASIN AHMED MUJAWAR

JUDGEMENT

(1.) The petitioner-plaintiff is the owner of an open plot of land admeasuring 30 feet x 18 feet situate at Somwar Peth, Kaiad, District Satara, which will be hereinafter referred to as the said plot. The respondent-defendant is admittedly a tenant of the petitioner in respect of the said plot and has been carrying on business dt coal and firewood in a temporary shed constructed thereon by the respondent The petitioner asked for the return of the suit plot by notice dated 6th February, 1974 as he bona tide and reasonably required it for erection of a building thereon. He also claimed possession on the ground of default in payment of rent Since the respondent failed to comply with the notice, the petitioner filed Regular Civil Suit No. 67 of 1974 in the Court of Civil Judge, Junior Division, Karad for possession of the suit plot on both the above grounds. The respondent resisted the suit and contended that he was not a defaulter. He further contended that the petitioner had sufficient residential accommodation for his family and moreover he had sufficient open space in C.T.S. No. 432/1. Not only that but the petitioner owns three gunthas of open land at Karad. Hence, it cannot be said that the petitioner required the property for bona fide purpose. Finally the respondent contended that he is doing his business of coal and firewood. If a decree for possession is passed, he will have no business and would suffer greater hardship.

(2.) The trial Court accepted the petitioner's case that he required the suit plot bona tide and reasonably under section 13(1)(i) of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947. The trial Court held that the object of the provision is to encourage the landlord to construct a building in order to avoid acute shortage of residential premises. The petitioner has prepared the plan and estimate vide Exs. 46 and 47, respectively. The plan prepared by the petitioner has been sanctioned by the Municipality vide Ex.48. The petitioner has also produced evidence to show that he has sufficient funds to construct a building. Thus the petitioner has honest intention to construct a building. The trial Court negatived the argument of the respondent that the petitioner has got enough open space around his residential house on the ground that the extent of the space has not been established. The argument of the respondent that the petitioner was in possession of another open plot was also negatived on the ground that he had sold the same before filing of the suit. While decreeing the suit of the petitioner under section 13(1)(i), the trial Court rejected the claim for eviction on the ground of default.

(3.) An appeal came to be filed against the decree by the respondent before the District Court, Satara. The learned District Judge, Satara, inter alia, held that the petitioner has failed to establish that he bona tide and reasonably required the suit plot for the purpose of construction of a building. It was noticed by the learned Judge that the ptan 6 and estimate were prepared nearly two years after the filing of the suit. It was also noticed that the estimate prepared by Mr. Umarani vide Ex. 46 is extremely meagre. The learned Judge rejected the explanation offered by the petitioner that since he is going to construct the building in the bricks, sand and mud and, therefore, the estimate of Mr. Umarani cannot be said to be meagre. The learned Judge found that the evidence does not show that the petitioner is in possession of sufficient funds to raise the construction. One additional reason given by the learned Judge was that in the year 1974 the petitioner had acquired much bigger plot of land admeasuring 66 feet x 99 feet. The learned Judge found that the said plot was sold after the filing of the suit. In this view of the matter, the learned Judge allowed the appeal and dismissed the petitioner's suit for possession.