Sudamdeo Sonu Nikam vs Anantrao Raoji Shinde ...
2018 Latest Caselaw 293 Bom

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               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD

                          WRIT PETITION NO. 5368 OF 1995


 Sudamdeo Sonu Nikam,
 Age 69 years, Occ. Retired
 servant, R/o. Patankar's Wada,
 Behind Tadi Shop,
 Near Mamaji Talkies,
 Satara File, Bhusawal
 District Jalgaon                                           ...Petitioner

          versus

 Anantrao Raoji Shinde,
 (since deceased by his L.Rs.)

 1A)      Smt. Vijaylaxmi Anantrao Shinde
          Age 62 years, Occ. Household

 1B)      Prataprao Anantrao Shinde,
          Age 47 years, Occ. Stamp
          Vendor and Partition writer
          in Mamlatdar's Office,
          Bhusawal.

 1C)      Vijayshinha Anantrao Shinde
          Age 42 years, Occ. Spare part
          and scooter repairer,
          Nos. 1A to 1C resident of
          Methaji Plots, Behind Vasant
          Talkies, Before Dr. Bholane's
          Dispensary, Bhusawal,
          Tq. Bhusawal, District Jalgaon                    ...Respondents

                                     .....
 Mr. V.T. Choudhari, advocate for the petitioner
                                     .....

                                              CORAM : V. K. JADHAV, J.

DATED : 11th JANUARY, 2018

ORAL JUDGMENT:-

1. The petitioner-plaintiff has instituted a suit being Regular Civil

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Suit No. 168 of 1985 under the provisions of Bombay Rent Act for

possession of the suit premises on the ground of default in payment

of rent as well as on the ground of personal bonafide requirements

as provided under Section 13(1) (g) of the Bombay Rent Act.

According to the petitioner-plaintiff, the defendant is tenant in the suit

premises, paying rent Rs.105/- p.m.. The defendant has paid rent up

to the end of January, 1981. It is the contention of the petitioner-

plaintiff that he is residing in another house and present

accommodation came to the share of his brother Dattatraya in

partition. After partition, since the said property was allotted to the

share of brother of the plaintiff, the plaintiff is residing in the house as

a tenant. Thereafter, dispute arose between the plaintiff and his

brother Dattatraya and said brother Dattatraya had instituted a suit

for possession in the year 1975. In the year 1976, the respondent

defendant was in need of house accommodation and accordingly

demanded the suit premises for residence on rent. It is contended

that at that time plaintiff gave idea to the respondent-defendant that

his brother has already instituted a suit to vacate the present

premises and therefore, he would require the suit premises in case

his brother succeeds in the pending litigation. The suit instituted by

said brother Dattatraya came to be decided against the petitioner-

plaintiff and though the petitioner-plaintiff has preferred appeal

against the said judgment and decree insisting the defendant to

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vacate the premises, even said pending appeal also came to be

decided against the petitioner-plaintiff. However, the defendant has

refused to vacate the suit premises. According to the petitioner-

plaintiff, he is having reasonable need and having bonafide

requirements of the suit premises for his residence purpose. He has

no other accommodation available to reside except the suit premises.

The petitioner-plaintiff is retired in the month of January, 1983. He is

having four daughters and one son. The defendant is doing the

business of stamp vendor and petition writer. Accordingly, the

petitioner-plaintiff has issued notice to the defendant of his

requirement of suit premises for his bonafide need and instituted the

suit.

2. The defendant has strongly resisted the claim by filing written

statement below Exh.12. He has admitted monthly tenancy of the suit

premises. The defendant has paid the monthly rent till December

1985 to the petitioner-plaintiff from time to time. The defendant never

agreed to vacate the suit premises and the petitioner-plaintiff has not

informed him the pending litigation, if any, with his brother. It has

also been contended that the petitioner-plaintiff is not in bonafide

need of the suit premises. It has been specifically contended that if

the suit premises is vacated by him he has to come on road. There

are 8 family members of the defendant. It has been specifically

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pleaded that the petitioner-plaintiff is desiring to sell out the suit

premises as he will get the good market price and the petitioner-

plaintiff is also having suitable alternate accommodation. It has also

been contended by the defendant that the petitioner-plaintiff is not in

bonafide requirement but has filed the suit to get excessive rent and

defendant would suffer greater hardship if the suit is decreed.

3. On the basis of rival pleadings of the parties to the suit, the trial

court has framed as many as six issues. The parties led oral and

documentary evidence in support of rival contentions. The trial court

has dismissed the suit after passing the order fixing the standard rent

of the suit premises.

4. Being aggrieved by the said, the petitioner-plaintiff preferred

Regular Civil Appeal No. 29 of 1987 before the District court, Jalgaon

and by judgment and order dated 3.12.1994, the 4th Additional District

Judge, Jalgaon dismissed the appeal. The respondent-tenant had

also preferred Civil Revision Application No. 5 of 1987 as against the

standard rent fixed by the trial court. Learned Additional District

Judge has also dismissed the civil revision application No. 5 of 1987.

5. So far as the issue pertains to bonafide need of suit premises

by the petitioner-plaintiff is concerned for seeking decree of eviction

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under the provisions of 13 (1) (g) of the Bombay Rent Act, the

learned Judge of the trial court while answering issue No.4 has

observed that though the brother of the petitioner-plaintiff has

instituted R.C.S. No. 525 of 1975 against the petitioner-plaintiff, but

on the very next day of institution of suit, the petitioner-plaintiff let out

the suit premises to the respondent-defendant. As such, from the

facts of the case, it is evident that the petitioner-plaintiff had no

bonafide and reasonable need of the suit premises. Further, from

30.12.1975 till 21.8.1981, the petitioner-plaintiff had issued receipts

showing that he received rent from the defendant and till that he has

never issued any notice to the defendant to vacate the premises

owing to his bonafide need of the suit premises. The trial court has

also observed that it has come in the evidence of the petitioner-

plaintiff that he sold out another property on 10.5.1985 when he was

owner of two residential house properties. It thus appears that the

trial court has discussed oral and documentary evidence at great

length and recorded a finding to issue No.4 in negative holding

thereby that the petitioner-plaintiff has failed to prove that he is in

bonafide need of the suit house for his residence. The learned

Judge of the trial court has also recorded a finding in negative to

issue No.5 with specific observations that defendant will suffer great

hardship if the suit is decreed.

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6. On perusal of judgment and order passed by the learned

Additional District Judge, Jalgaon, it appears that the learned

Additional District Judge has dealt with the submissions that since

inception the plaintiff was in need of suit premises and it was for this

reason he instituted the suit before the trial court in the year 1985.

After scrutinizing the evidence minutely, the lower appellate court has

concurred with the finding of trial court that it was the desire of the

plaintiff to occupy the suit premises but there was no need right from

1976 to 1985. The lower appellate court has also recoded finding in

negative and dismissed the Regular Civil Appeal.

7. On perusal of the judgment and order passed by the courts

below, I do not find any substance in this writ petition. Both the

courts below recorded a concurrent finding of facts. There is no

substance in the writ petition.

8. In view of above, writ petition is dismissed. Rule discharged.

9. In the circumstances, there shall be no order as to costs.

( V. K. JADHAV, J.)

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