Bombay High Court
Miss Zarina D/O Late Abdul Karim ... vs Ashok S/O Bandulal Mehta on 27 March, 2017
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 2504 OF 2015
1] Miss. Zarina d/o late Abdul Karim,
aged about 70 years, Occ. Retired.
2] Miss. Kamarbano d/o Late Abdul Karim,
aged about 66 years, Occ. Retired,
Both resident of Sammiullah Khan Marg,
Sadar Bazar, Nagpur ...... PETITIONERS
...VERSUS...
Ashok s/o Bandulal Mehta, aged about
57 years, Occ. Business, resident of Samiullah Khan
Marg, Sadar Bazar, Nagpur....... RESPONDENT
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Shri Masood Shareef, counsel for Petitioners.
Shri S.S..Sharma, counsel for Respondent
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CORAM: R. K. DESHPANDE, J.
th
DATE : 27 MARCH, 2017 .
ORAL JUDGMENT
1] Rule made returnable forthwith.
Heard finally by consent of the learned counsels
appearing for the parties.
2] The petitioners are the original plaintiffs who are
the owners of house property bearing NMC House No. 256,
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situated at Sammiullah Khan Marg, Sadar Bazar, Ward No.
67, Nagpur. The property consists of ground plus two floors
and the front portion is abutting towards road on the ground
floor and consists of three shop blocks. Shop Block No. 3 is
in occupation of the plaintiffs and the shop Block No. 2 is in
possession of the respondent-original defendant and the
shop block No. 1 is in possession of one another tenant, who
is the petitioner in Writ Petition No. 2360 of 2015. The area
of Shop Block No. 2 in possession of the defendant
admeasures 170 sq. feet. At the time when the suit was
filed for eviction and possession, the plaintiffs, who are the
real sisters, were aged 66 and 62 years respectively and now
they are of 73 and 71 years respectively.
3] The case of the plaintiffs was that they were
residing on the second floor and they wanted to occupy the
residential portion behind the shop blocks in question as
due to their old age they are unable to climb stair case. The
area in occupation of the defendant is to be utilized for
ingress and egress as well as for parking of the vehicles. The
trial Court was satisfied with the bonafide requirement put
forth by the parties and therefore, decree for eviction and
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possession was passed. The lower appellate Court has
reversed the findings of the trial Court and hence, the original
plaintiffs are before this Court in this writ petition.
4] The lower appellate Court holds that, "it is
conveniently established by the evidence of the plaintiffs that
they are having sufficient way for approaching the back side
portion. It holds that the plaintiffs are having space behind
the suit Shop Block No. 2 in their possession. The plaintiffs
failed to give any details of the said portion in their
possession and even have not taken any endevour to
demonstrate as to how it is insufficient for their
accommodation". In the absence of this, according to the
lower appellate Court, the plaintiffs have not established
that, "the space is not sufficient for their use and occupation
due to the old age and ill health". It holds that the plaintiffs
have not produced any documentary evidence to show that
they are unable to climb stair case upto the second floor.
The family of the plaintiffs comprises of only two persons and
it is mere desire which is expressed and there is absence of
element of necessity.
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5] The findings recorded by the lower appellate
Court seems to be based upon the misconception of facts.
The plaintiffs were in occupation of the portion on the second
floor and wanted to occupy the portion for their residence on
the ground floor, which is behind the shop block. The
sufficiency or insufficiency of space in their possession on the
second floor was not a relevant fact. It was not necessary for
the plaintiffs to have produced any Doctor Certificate to
establish their inability to climb the stair case. There was no
dispute about the existence of way to approach the back side
portion of the shop block in question. The requirement put
forth was not only for the enlargement of approach way, but
also to have a parking space by demolishing the Shop Block
No. 2 in possession of the defendant.
6] The trial Court has considered the evidence of
the defendant in paragraph 19 and 22 of the judgment, which
are reproduced below.
"19. D.W.1 Ashok Mehta in cross-examination,
admitted that plaintiff alongwith sister is residing. The
plaintiffs are residing on the second floor. Adjoining to
the suit shop block, there is shop block of Modern
Scientific Company and there is shop block of plaintiffs
having xerox and dress material shop. On the back
side of the shops, there are rooms. That rooms are in
possession of the plaintiffs, lying vacant. He further
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admitted that there is four feet way from east west to
enter in that room. In front of his shop, there is
hardware shop. That, distance between hardware shop
and his shop is of twenty feet. There is public road
after 7 ft. He further admitted that suit block is situated
in commercial area of Sadar, Nagpur. Family members
and brothers of the plaintiff used to visit regularly.
Relatives and guests also used to visit plaintiffs house.
He do not know that the relatives have to park their
vehicle in Sadar Chowk and by walk has to attend the
plaintiffs house. The parking space is available on the
public road. He used to park his vehicle in front of the
shop on road. The plaintiffs are more than 65 years of
age. Due to their old age, they are unable to climb up
and down. The rooms behind the shop blocks are the
most suitable space available to the plaintiffs to reside.
Thus, he also admitted plaintiffs had issued notice in
the year 2009 for vacating suit shop block. He has
replied the notice through Adv. Solanki.
22. In respect of rebuttal charges levelled against the
defendant, he was unable to adduce further evidence
from Corporation and R.T.O Office to put forth that
there is parking area in front of suit shop block which is
meant and de-marketed for parking space and
availability of parking space in that area. Therefore, the
need of the plaintiffs put forth to have parking space in
front of the building is itself proved by the plaintiffs and
the testimony on that count are remained unchallenged
and unrebutted".
7] The trial Court has taken into consideration the
fact that the defendant had an alternate accommodation in
Sadar in Maghnath Chawl. The findings recorded by the
lower appellate Court being in ignorance of the aforesaid vital
admissions given by the defendant, cannot be sustained.
The same will have to be quashed and set aside.
8] In the result, the writ petition is allowed. The
judgment and order dated 15.01.2015 passed by the lower
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appellate Court in Regular Civil Appeal No. 23 of 2014 is
hereby quashed and set aside. The decree passed by the
trial Court on 15.11.2013 in Regular Civil Suit No. 375 of
2009 is hereby restored. No order as to costs.
Rule is made absolute in above terms.
JUDGE
Rvjalit
