RANGNATH RAMCHANDRA GALGALI Vs. PRALHAD GOPAL JOSHI

JUDGEMENT

(1.) BY this petition filed under Article 227 of the Constitution of India, the petitioner challenges the order dated 2nd May 1986 passed by the Jt.District Judge, Thane in Civil Appeal No.315 of 1984. That appeal was filed by the petitioner challenging the judgment and decree dated 14.9.1984 passed by the Civil Judge, Jr.Division, Ulhasnagar in Reg.Civil Suit No.174 of 1979. The Civil Suit was filed by the predecessor-in-title of the respondent by name Pralhad, claiming therein that he is owner of the house No.79, plot No.72 in the Suryodaya Co-op.Hsg.Society Ward No.6 of the Kansai Section, Ambernath and that the petitioner is the tenant of tenament No.4 in the suit building. The landlord sought decree of eviction against the tenant on the ground that the landlord bonafide needs the suit premises for accommodating his own family. The trial Court recorded finding in favour of the landlord and decreed the suit in his favour and directed the tenant to vacate the suit premises. In the appeal filed by the tenant, the appellate Court confirmed the findings recorded by the trial Court and dismissed the appeal. In the present petition filed by the tenant, therefore, findings recorded by both the courts below are challenged.

(2.) THE learned counsel for the petitioner submitted that on behalf of the plaintiff-Prahlad after his death his eldest son Mangesh was examined as witness. This witness for the plaintiff landlord has stated that the family of the landlord is presently occupying block No.1 in the suit house, admeasuring 260 sq.ft. He has further stated that there are 8 members in the family, who are occupying this block No.1. He further stated that the need of the family of the plaintiff would be satisfied if they get possession of one more tenament. The learned counsel pointed out that the landlord had filed civil suit for getting possession of the other tenaments in the same building namely, tenament No.2 and tenament No.3 against the tenants who were occupying those tenaments and the decree of eviction was also passed against those tenants who were occupying tenament Nos. 2 and 3. The learned counsel pointed out that this fact was brought to the notice of the appellate Court that the decree of eviction has been passed against the other tenants. However, the appellate Court did not take that fact into consideration on the ground that the landlord has not yet received possession of this tenament though a decree of eviction has been passed against the concerned tenants. The learned counsel pointed out that an affidavit dated 15th July, 1986 has been filed in the present case, sworn by the petitioner, stating therein that the Reg. Civil Suit No.172/79 for a decree of eviction, filed against Shri Wagh, who was the tenant of the tenament No.2 in the suit building, was decreed in favour of the landlord. The appeal filed by Shri Wagh against the said decree was also dismissed and in the execution proceedings the present respondent received possession of tenament No.2 on 31st January, 1985. It is further stated that for obtaining possession of tenament No.3, Reg.Civil Suit No.173/1979 was filed by the respondent-landlord against the tenant of tenament No.3 - Shri Gavankar. That suit was also decreed in favour of the landlord and the respondent has received possession of tenament No.3 on 31st January, 1985. The learned counsel submitted that though this affidavit is sworned on behalf of the petitioner and though there is a specific order passed by this Court dated 9.9.1986, taking this affidavit on the record, there is no counter affidavit filed by the respondent.

(3.) IN the result, the petition succeeds and is allowed. Rule made absolute in terms of prayer clause (a) of the petition with no order as to costs.