MADHUKAR PUNJARAM SONAWNW Vs. GAJANAN VITHAL KHANDEKAR

JUDGEMENT

(1.) This Writ Petition under Article 227 of the Constitution of India is directed against the judgment and decree passed by the Additional District Judge, Nasik dated 12.07.1991 in Civil Appeal No. 223 of 1989 thereby allowing the tenant' As ppeal and setting aside the decree of possession of the suit premises passed in favour of Petitioner/Plaintiff and instead dismissed the suit filed by the Petitioners/Plaintiffs.

(2.) The Petitioners had filed suit for possession of the premises situated in Municipal House No. 1173, CTS No. 2482 consisting of one room ad measuring 15' X 10' on the first floor of said house against the Respondent/tenant amongst others on the ground of bonafide and reasonable requirement of the suit premises for personal use and occupation. The Trial Court decreed the suit for possession in favour of the Plaintiffs/landlords accepting the ground of bonafide and reasonable requirement of Plaintiff No. 1 for his own use and business. That decision was carried in Appeal by the tenant which in turn has reversed the said opinion of the Trial Court and instead, dismissed the suit for possession preferred by the Petitioners/Plaintiffs.

(3.) Before proceeding to examine the matter further, it would be apposite to advert to the basis on which the Trial Court proceeded to consider the case to answer the issue in favour of the Petitioners/Plaintiffs. I shall not be burdening this judgment with other issues involved in the suit but confine the discussion to the ground for possession of the suit premises for personal use and occupation of Plaintiff No. 1. The relevant discussion in this behalf can be discerned from paragraphs 6 and 7 of the judgment of the Trial Court. The Trial Court has considered the issue of comparative hardship in Paragraphs 8 and 9. In so far as the case made out by the Plaintiffs, it is common ground that the Plaintiffs have generally stated that suit property were required for bonafide and reasonable requirement for personal use and occupation of the Plaintiff No. 1. In the plaint, it is clearly asserted that Plaintiff No. 1 has no other accommodation for starting his business. The matter went for trial when the Plaintiffs' witness has spoken about the requirement of suit premises for personal use and occupation of Plaintiff No. 1 to start his business therein. The Trial Court has adverted to this aspect and then proceeded to examine the matter. It found that admittedly, no other property was standing in the name of Plaintiff No. 1 except the suit property which was purchased jointly by both the Plaintiffs. The suit premises in occupation of the Respondent is situated in front portion of the first floor. Behind the said room, there is another room which is also in possession of tenant namely Baburao Bhavsar. The Trial Court has also noticed that there is a shoe and chappal shop stall in the name of Bharat Leather on the ground floor which belongs to Plaintiff No. 2. The Trial Court has also found that it is not in dispute that the Plaintiff Nos. 1 and 2 are real brothers and they are having family business of cobbler and to sell shoes and chappals. The Plaintiff No. 1 has been examined at Ex 50. That evidence has been analysed by the Trial Court wherein he has deposed that the house was purchased by him for opening shop in the suit premises and he has no other alternate accommodation for starting his business. He has deposed that he was doing business of selling chappals and shoes on the road for which he was prosecuted by the police by filing criminal cases. The fact that Plaintiff No. 1 was prosecuted by the police is established from the evidence of Plaintiff's witness who is an independent person and was responsible to lodge prosecution against the Plaintiff No. 1. The Trial Court has then noticed that Defendant's case is that the Plaintiff' sfather has a shop of shoes and chappals on the ground floor and other places and they have also properties at other places. The Plaintiffs' family was living jointly and have common house property. This argument has been considered by the Trial Court to hold that there was no material on record to substantiate the position that the Plaintiff No. 1 had right in any other property for running business. On the other hand, the evidence would indicate that the Plaintiff No. 1 was staying separately along with his wife and children. The Trial Court has also adverted to the record which supported the claim of the Plaintiffs that the Plaintiff No. 1 was staying separately as he had procured separate ration card which established that the place where he was staying along with his wife and children was different than the place where his father and brother was staying. Taking all these aspects into account, the Trial Court proceeded to hold that Plaintiffs have established that the Plaintiff No. 1 had no other alternative accommodation except the suit property for running his business and further the requirement of Plaintiff No. 1 in respect of suit premises for his personal use and occupation deserves acceptance. With regard to issue of hardship, the Trial Court has adverted to the evidence that the Plaintiff No. 1 had stated that the Defendant has his own property bearing CTS No. 3627 which was admeasruing about 92 sq mtrs in which he had constructed portion only of 10' X 10'. The said house was situated in Lane called Peth Galli and in same lane, there is office of municipality and weekly bazar of Nangaon town is conducted in front of municipality office. The Trial Court has adverted to the fact that the property of the Defendant was situated in a crowded locality wherein weekly bazar was held. On that basis, it has found that the Defendant has alternate accommodation of his own and would not suffer much hardship. Above findings recorded by the Trial Court have been reversed by the Appellate Court on the reasoning that the suit brought by the Plaintiff should fail as the plaint does not disclose any particulars as to which business Plaintiff No. 1 intended to run in the suit premises. The Appellate Court was of the view that mere averment in plaint that the Plaintiffs require possession of the suit premises for own business is not enough to infer that the Plaintiff has real intention to start his business. The Appellate Court has referred to the observation of this Court in a case reported in, Abdul Alim v. Vora,1986 BRC 147 in support of the above opinion. The Appellate Court then proceeded to hold that there was no evidence from which it could be gathered that the real intention of the Plaintiff was to start his own business in suit premises after getting possession. It, then found that there was no evidence as to whether the Plaintiffs were in need of the premises or what difficulties he had to face for want of premises. On that reasoning, the Court proceeded to infer that it was a case of mere desire of the landlords which was not sufficient to order possession of the suit premises.