RAJESAHEB SHAHMIDSAHEB NADAF PINJAR Vs. DATTATRAYA APPA RAWAL

JUDGEMENT

(1.) BY this writ petition filed under Article 227 of the Constitution of India, the petitioner who was original defendant takes exception to the judgment and decree passed by the 3rd Addl. District Judge, Sangli on 22nd September, 1989 confirming the judgment and decree passed by the IInd Joint Civil Judge, Jr. Division, Sangli on 29th September, 1983.

(2.) DATTATRAYA Appa Rawal, the respondent herein is owner of the property viz. Block No. 98, Room No. 12, situate at Shukrawar Peth, Madhavnagar, Miraj, Sangli. For the sake of convenience, the respondent owner shall be referred to hereinafter as "landlord" and the said property as "said premises". The petitioner Rajesaheb Shahamit Saheb Nada Pinjari was inducted as tenant in the said premises by the landlord at a monthly rent of Rs. 9/- per month by the erstwhile owner somewhere in the year 1954. For the sake of convenience, I shall refer the petitioner hereinafter as "tenant". The said premises were purchased by the landlord on 9-11-79. The landlord filed a suit for eviction registered as R. C. S. No. 287 of 1981 seeking possession of the said premises from the tenant on the ground that he required the said premises for his own use and occupation. The landlord also sought the eviction on the ground that the tenant has changed the user of the premises from residence into tethering goats and lambs and that the tenant was causing nuisance and annoyance to him and the adjoining neighbours by not keeping the premises clean and in proper condition. The suit was contested by the tenant. The tenant set up the defence that he was using the premises for the purpose of residence and tethering goats etc. since 1954 and the erstwhile owner never raised any objection whatsoever. He, therefore, denied the ground of change of user and nuisance as set out by the landlord. The tenant also set up the plea that premises in question are not required by the landlord for his use and occupation. The trial Court framed various issues and after recording the evidence negatived the landlords claim for eviction on the ground of reasonable and bona fide necessity. However, the trial Court held that the landlord has been able to establish the grounds of nuisance and change of user and accordingly, decreed the plaintiffs suit. The tenant filed appeal challenging the judgment and decree of the trial Court. However, the appeal was dismissed giving rise to the present writ petition.

(3.) THE learned Counsel for petitioner challenged the judgment and decree passed by courts below on the grounds viz. (1) that the courts below failed to consider the provisions of section 6 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 as there was no change of user from residence to business merely because the premises were used for tethering goats; (2) that the tenant by cogent evidence has proved that he has been using the premises for the same purpose for which it was let out to him and therefore, no case for change of user was made out; and (3) that the tenant has been tethering goats etc. in the open space for the last so many years but was never objected to by the erstwhile landlord and rather he waived the ground of nuisance and therefore, the present landlord has no right to seek eviction on that ground. In this connection, the learned Counsel for petitioner relied upon the judgment of this Court in (Kumari Parvati Kevalram Moorjani v. Madanlal Anraj Porwal), reported in A. I. R. 1988 Bombay 354.