VITHAL NANDAPPA SHETTI Vs. PRAKASH NARAYAN RUDRAKAR

JUDGEMENT

(1.) AS in both these petitions the same judgment and order passed by the VIII Addl. District Judge, Pune dated 24.4.1985 is challenged, these petitions can be conveniently disposed of by a common judgment/order.

(2.) BY both these petitions filed under Article 227 of the Constitution of India, the petitioners challenge the order dated 24.4.1985 passed by the 8th Additional District Judge, Pune in Civil Appeal No.484 of 1984. That appeal was filed by the respondent No.1 Prakash, challenging the order dated 1.2.1984 passed by the 3rd Joint Civil Judge, Jr. Dvn. Pune in Civil Suit NO.2403 of 1981, claiming therein that he is owner of single storey building constructed on C.T.S. No.347, Somwar Peth, Pune of which the present petitioner Vithal N.Shetti is the tenant. Defendants Nos. 2 to 6 to the plaint were unlawful sub tenants of the property. The landlord sought decree of eviction against the tenant on several grounds, including the ground that the tenant has made permanent alterations in the suit premises without a written consent or permission from the landlord and that the tenant has unlawfully sub-let the suit premises. The trial Court, however, found against the plaintiff landlord on all the grounds and dismissed the suit. In the appeal filed by the landlord, however, the appellate court reserved the findings recorded by the trial Court on two grounds, namely, (i) permanent alterations and (ii) unlawful subletting. The appellate Court also found in favour of the landlord on the ground of dis-claimer of the title of the landlord by the tenant. As a result the appellate Court allowed the appeal filed by the landlord, set aside the order passed by the trial Court and decreed the suit filed by the landlord against the tenant for a decree of eviction and directed the tenants and sub-tenants to vacate the suit premises. As a result the tenant Vithal Shetty has filed writ petition No.2416 of 1985 and the said sub-tenants, namely, original defendants No.4, 5 and 6 have filed writ petition No.4164/85 challenging the order passed by the appellate Court.

(3.) IT is to be seen here that though Shri Dalvi, by referring to paragraph 16 of the written statement filed by the petitioner urged that by implication this point was raised, in my opinion, Shri Dalvi is not right. In paragraph 16, the tenant has said that he constructed a building for restaurant in the year 1961, after taking prior permission of the Municipal Corporation and then owner Shri Chipulankar. However, perusal of the deposition of the tenant-petitioner shows that he has stated in his deposition that he raised the construction in the year 1961 after demolishing the shed, which was constructed by the previous tenant Patki. In my opinion, whether what was let out to the petitioner was an open land, or whether construction was raised by Patki and it is after demolishing that construction that the petitioner has raised the present construction are all questions of facts which are first to be pleaded and then to be proved by leading evidence. Obviously they cannot be allowed tot be raised for the first time before this court in writ petition.