KASHINATH KISAN CHUDHARI Vs. PRABHAVATIBAI PRABHAKAR

JUDGEMENT

(1.) BY this petition filed under Article 227 of the Constitution of India, the petitioner challenges the order dated 18.12.1986 passed by the 2nd Addl. District Judge, Pune in Civil Appeal No. 647/85. That appeal was filed by the petitioner, challenging the judgment and decree dated 18.7.1985 passed by the Civil Judge, Jr. Dvn., Pune in old Civil Suit No. 1616/1977 and Civil Suit No.597/82. That civil suit was filed by the respondent claiming to be owner of house No.360 Guruwar Peth, Pune. It is further claimed by the respondent that one room on the ground floor has been let out to the petitioner as a tenant. It appears from the issues that have been framed by the trial court that the landlady was seeking a decree of eviction against the tenant on the following grounds:-

(2.) TAKING up the ground of raising a permanent structure on the suit premises, the learned counsel appearing for the petitioner urged before me that it is clear from the issue that has been framed by the trial court, that the issue was framed under section 13(1)(b) of the Bombay Rent Act, namely, that the tenant has errected permanent structure on the suit premises without obtaining written permission from the landlady. In the submission of the learned counsel mainly the allegations that have been made in the plaint in this regard are that the tenant has closed the entrance of the loft (potmala), which is in the passage and he has made opening to the loft from the suit premises by removing the bricks and made entrance from the side of the shop premises and started using that loft for storing clothes and other articles. In the submission of the learned counsel, therefore, creating the opening to the loft from the suit premises would not amount a permanent structure. An allegation of a permanent structure that is being made is of closing the opening to the loft which is in the passage, which even according to the landlord has not been let out to the tenant. In the submission of the learned counsel, therefore, no decree under section 13(1)(b) of the Act could have been passed against the tenant.

(3.) NOW considering these rival submissions, it is clear that there is no allegation against the petitioner that he has errected any permanent structure on the suit premises. Creating an opening in the wall may not amount to an errection of a structure which may amount distruction of the existing demised structure, and which can be covered by section 13(1)(b) of the Act. However, in the plaint there is a definite allegations of distruction of the demised structure and therefore, the trial court ought to have, in my opinion, framed an issue in this regard. Similarly is the case with regard to the alleged encroachement by the tenant on the loft in the passage, which has admittedly not been let out to the tenant. In my opinion, therefore, for the reasons the suit is liable to be remitted back to the trial court with a direction to re-frame the issue and decided the suit in accordance with law.