VASANT SHIVRAM PATIL Vs. SURESH VASUDEO DONGAKAR

JUDGEMENT

(1.) BY this petition filed under Article 227 of the Constitution of India, the petitioner challenges the Order dated 29/4/86 passed by the Additional District Judge, Kolhapur, in Civil Appeal No.75/81. That Appeal was filed by the Respondent challenging the Order dated 27/2/81 passed by the Joint Civil Judge, Junior Division, Kolhapur, in Regular Civil Suit No.1296/76. That Civil Suit was filed by the Respondent claiming to be owner of house at CTS No.2974-A and that the petitioner is a tenant of 2 rooms on the ground floor of the said house. The landlord sought decree of eviction on the ground that tenant is not ready and willing to pay the rent. The trial Court found against the landlord and dismissed the suit. However, the Appellate Court reversed the findings recorded by the Trial Court and decreed the suit in favour of the landlord and directed the tenant to vacate the suit premises. In this petition filed by the tenant therefore, Order of the Appellate Court is challenged.

(2.) THE facts necessary for deciding the petition are that the landlord came to the Court with the case that the petitioner is his tenant occupying 2 rooms. He further claimed that the demand notice was issued on 8/10/76 to the tenant demanding arrears of rent from May-73 to September-76. It was claimed that the tenant has neither paid of arrears of rent nor he has filed any application under Section 11(3) of the Bombay Rent Act within one month of the receipt of the demand Notice and therefore, landlord is entitled to decree of eviction against the tenant. The defence of the tenant was that he was not tenant of the premises but the mortgagee in possession as father of tthe plaintiff Suresh had mortgaged the property with the petitioner for an amount of Rs.1,000/-. It was his case that as per the agreement after repayment of the amount the petitioner had to vacate the suit premises. The learned Counsel for the petitioner urged before me that the Power of Attorney has been executed by Suresh in favour of Vasudev on 16/1/75. The document at Exh.28 and 29 have been admittedly executed before 16/1/75 and therefore, it cannot be said that Vasudev had authority to deal with the property before 16/1/75. In the submissions of the learned counsel therefore, it cannot be said that the petitioner is not a mortgagee in possession. Perusal of the Judgment of the Appellate Court shows that this aspect of the matter, has been considered in detail by the Appellate Court. The Appellate Court has found that apart from the other documents the receipt at Exh.30 dated 28/4/78 clearly shows that the tenant was paying rent to the landlord. The Court has also relied on other evidence like assessment extract to conclude that the petitioner was tenant. It is further to be seen that the date on which transaction was entered into, Vasudev did not have authority to act on behalf of the Suresh. However, subsequent conduct of the parties shows that the action of Vasudev has ratified by Suresh. In my opinion therefore, it cannot be said that the findings of the Appellate Court is not based on evidence of record. I find that the findings is based on the material on record and therefore, it cannot be interfered with in my jurisdiction under Article 227 of the Constitution of India.