Vivek Shinde And Others vs Dropadi Astagaonkar And Others
2022 Latest Caselaw 6811 Bom

                                                                               17 CRA-125-2021.doc

BDP-SPS-TAC



  BHARAT
  DASHARATH
  PANDIT
                                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
   Digitally signed by
   BHARAT
   DASHARATH
   PANDIT
                                              CIVIL APPELLATE JURISDICTION
                                      CIVIL REVISION APPLICATION NO. 125 OF 2021
   Date: 2022.07.19
   11:17:45 +0530




                         Vivek Dattatray Shinde and Ors.                 .... Applicants.
                                    V/s
                         Dropadi Shankarrao Astagaonkar
                         and Ors.                                        .... Respondents.

                         Mr. Vishal Kanade @ Janhavee Joshi i/b Sanjay S. Gawde for the
                         Applicants.

                                              CORAM: NITIN W. SAMBRE, J.

DATE: JULY 18, 2022

P.C.:-

                         1]       Heard.



                         2]       This Revision is by the Defendants to Civil Suit No.404 of 2009

initiated under Section 33 of the Maharashtra Rent Control Act. The

said suit for restoration of possession came to be decreed on

18/3/2016. Revision Applicants' Appeal being Appeal No. 545 of

2016 came to be dismissed by affirming the aforesaid judgment on

13/3/2020. As such, this Revision.

17 CRA-125-2021.doc

3] Facts necessary for deciding present Revision are as under:-

4] Respondents/Plaintiffs initiated aforesaid Suit being Suit No.404

of 2009 alleging dispossession, as according to them, they were

licensees of the suit premises. Suit claim was resisted by the

Applicants/Defendants vide Written Statement Exhibit-26. According

to the Applicants, Respondents/Plaintiffs went for pilgrimage during

the period from 24/5/2009 to 2/6/2009 before which they have

surrendered possession of the suit premises. Based on rival claims,

issues were framed at Exhibit-34. Accordingly, suit of the Respondents

came to be decreed and also appeal preferred by the Applicants was

dismissed.

5] Contentions of Counsel for the Applicants are, relationship as

that of landlord and tenant is not in dispute. However, according to

him, claim of the Respondents/Plaintiffs is decreed solely on the

ground that there was electric meter and outstanding dues were paid.

He would urge that both the parties have examined their respective

witnesses and Court below committed an error in relying on the

17 CRA-125-2021.doc

evidence of Respondents/Plaintiffs. He would further urge that in

view of tenancy being surrendered by the Respondents, both the

Courts below ought to have recorded finding that possession of the

suit premises was validly and lawfully delivered to the Applicants.

6] I have appreciated the aforesaid submissions in the light of the

evidence which has been looked into by both the Courts below of that

of Respondent/Plaintiff No.2 at Exhibit-50. The evidence of present

Applicants/Defendant No.1 at Exhibit-89 and of D.W. 2 Sagar Suresh

Shinde at Exhibit-105. The aforesaid evidence is considered in the

light of issues which were framed at Exhibit-34. The said issues with

findings thereon read as under:-

ISSUES FINDINGS 1] Whether plaintiffs prove that, defendants dispossessed them from the In the affirmative. suit premises without following the due process of law, as contended?

1A] Does plaintiffs prove that, landlord-

tenant relationship exists between In the affirmative plaintiffs and defendants?

     1B] Whether suit is bad for non-joinder
     of necessary parties?                   In the negative.





                                                        17 CRA-125-2021.doc


     1C] Whether suit is within limitation?    In the affirmative
     1D] Whether this Court has jurisdiction

to try and entertain the present suit? In the affirmative.

2] Whether plaintiffs are entitled for the restoration of possession of the suit In the affirmative. premises, as contended?

3] Whether plaintiffs are entitled for the relief of possession etc. against the In the affirmative. defendants, as prayed for?

4] What order and decree? Suit is decreed with costs.

7] The Trial Court on appreciation of evidence has noticed that

Respondents/Plaintiffs have got electric connection in their name and

have produced communication at Exhibit 59 issued to the Electric

Supply Company not to disconnect their supply in the absence of any

express prayer from their side. In addition, electricity bill which is

cleared by the Respondents for the period from February 2009 to

March, 2009 is also relied upon. The said electricity bill at Exhibit-57

is duly appreciated by the Courts below.

8] In the aforesaid backdrop, having regard to the fact that non-

applicants/Plaintiffs have established their relationship of landlord

17 CRA-125-2021.doc

and tenant which in fact is not in dispute in the present proceedings,

burden shifts on the Applicants to prove that Respondents/Plaintiffs

have lawfully surrendered possession.

9] The evidence of Defendants' witnesses if appreciated as is

reflected in the orders impugned, it can be noticed that evidence of

Applicants' witnesses has not established the said fact of receiving

lawful possession from the Respondents/Plaintiffs of the suit property.

10] Apart from above, the lower Appellate Court has re-appreciated

entire evidence and has reached to a conclusion that there exists

landlord-tenant relationship and the Applicants have failed to

establish that they have received possession of the suit property

lawfully.

11] In this backdrop, in my opinion, against the concurrent findings,

no illegality of jurisdiction or failure to exercise jurisdiction is noticed.

Revision as such lacks merits and same stands dismissed.

( NITIN W. SAMBRE, J. )