Bombay High Court
Kapil Bacharam Sharma (Since ... vs Haji Mohamed Rashid Jitekar ... on 26 July, 2022
Bench: Nitin W. Sambre
CRA-210-21 aw CRA 282-21.doc
BDP-SPS-TAC
BHARAT
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
DASHARATH
PANDIT
Digitally signed
CIVIL APPELLATE JURISDICTION
by BHARAT
DASHARATH
PANDIT
Date: 2022.07.27
16:33:55 +0530
CIVIL REVISION APPLICATION NO.210 OF 2021
Rajdeo Bacharam Sharma ..Applicant
Versus
Haji Mohamed Rashid Jitekar
Since deceased through legal heirs
Mohamed Ebrahim Jitekar & Ors. ..Respondents
WITH
CIVIL REVISION APPLICATION NO.282 OF 2021
Kapil Bacharam Sharma
Since deceased through legal heirs
Smt. Sheiladevi Kapil Sharma ..Applicant
Versus
Haji Mohamed Rashid Jitekar
Since deceased through legal heirs
Mohamed Ebrahim Jitekar & Ors. ..Respondents
Mr. Surel Shah a/w Mitaali Shah i/by Vaibhav Mehta & Associates, for
the Petitioner in both the above Civil Revision Applications
Mr. Reshant Shah i/by M/s. Lex Conseiller, for the Respondents in
both the above Civil Revision Applications.
CORAM: NITIN W. SAMBRE, J.
DATE: JULY 26, 2022
P.C.:-
1] Both these Civil Revision Applications are by the Defendants to
RAE Suit No.706 of 1998 which was decreed on 30/1/2013 and the
judgment therein was confirmed in Appeal Nos. 7 and 8 of 2013,
CRA-210-21 aw CRA 282-21.doc
which were preferred by Defendant No.2, Defendant Nos. 1(a) to 1(d)
respectively.
2] Facts necessary for deciding present Revisions are as under:-
3] The suit property is located at Jitekar Wadi, Thakurdwar,
Mumbai, being Room No.88. Claim of the Respondents/Plaintiffs -
Non-applicant herein is, Rajaram Sharma was employed for collection
of rent for several years who subsequently introduced his son-in-law
Ram Bachha Bansidhar Sharma (For short "Ram Baccha") in 1955-56
to the father of the Plaintiffs who was permitted to work as rent
collector and manager. It is claimed that said Ram Bachha was
initially on monthly salary of Rs 90/- and was occupying Room
No.88-G for which rent of Rs 10/- was deducted per month. It is
claimed that in 1982, salary was increased to Rs 550/- of which
Rs 50/- were deducted as monthly rent and in 1985 rent of the
premises was increased to Rs 87/- as against in 1991, his salary was
Rs 700/-.
CRA-210-21 aw CRA 282-21.doc
4] Plaintiffs alleged that said Ram Bachha was service/gratituous
tenant and as such sought his eviction. Said claim for eviction was
resisted by Defendant Nos. 1(a) to 1(d) by filing Written Statement at
Exhibit-30 and that of Defendant No.2 at Exhibit-48. Both have raised
common defence as regards monthly tenancy and as a sequel
availability of protection under the then Rent Act.
5] Trial Court while allowing the suit, recorded finding that
deceased Ram Bachha was permitted to occupy and reside in the suit
premises as an employee and as such Applicants/Defendants are
unlawful occupants. Trial Court also recorded finding that present
Applicants/Defendants failed to prove that Ram Bachha and after him
Defendant No.1 were paying rent to the Plaintiffs. The aforesaid
decree was upheld by the Appellate Court. That being so present
Revisions.
6] Mr. Surel Shah, learned Counsel appearing for the Applicants
would urge that judgments impugned are not sustainable as very
decree is without jurisdiction. So as to substantiate his claim, he has
CRA-210-21 aw CRA 282-21.doc
drawn support from the alleged order dated 19/6/2000 passed in
Interim Notice dated 4338 of 1998, claim of deduction of rent from
salary of deceased Ram Bachha and positive finding recorded by the
Appellate Court in favour of the Applicants. So as to further
substantiate his claim, he has drawn support from the pleadings and
evidence of the respective parties
7] While countering aforesaid submissions, Counsel for
Respondents would support the Judgment impugned, as according to
him, suit was initiated in 1998 and for last 24 years decree is not
permitted to be executed. According to him, once employment is not
disputed and Applicants have come out with a case of deduction of
rent from salary, burden is on the Applicants to prove the said fact
which they have failed to, which rightly has led to passing of decree.
8] I have appreciated aforesaid submissions.
9] The case from record as could be inferred is, present Applicants
have admitted that Ram Bachha was in employment of the Plaintiffs
CRA-210-21 aw CRA 282-21.doc
as rent collector. Father-in-law of Ram Bachha viz. Rajaram was
working as rent collector prior to tenure of Ram Bachha. It is claimed
that Applicants have admitted relationship of landlord and tenant and
have raised an issue of payment of rent by way of deduction from
salary, whereas Plaintiffs have come out with a case of
service/gratituous tenant.
10] As against the claim of the Plaintiffs/non-applicants of
service/gratituous tenancy, Defendants/Applicants have come out with
a case of payment of rent which they have failed to establish by
adducing cogent evidence as their pleadings were very specific as
regards monthly deduction, rise in rent, rise in salary etc. That being
so, Trial Court was justified in framing of issue as regards burden of
Defendants to prove the same and failure of the Applicants to
discharge the said burden. Similarly, Appellate Court had regard to
relationship inter se between the parties i.e. employer-employee and
gratituous tenancy.
11] In this backdrop, what can be inferred is , status of Rajaram was
CRA-210-21 aw CRA 282-21.doc
that of a person having personal privillage of occupation granted to
him and not alleged gratituous tenant. Fact remains that Ram Bachha
through whom Defendants/Applicants are claiming tenancy has
expired on 4/9/1997. As a consequence, his employment
automatically ceased. So as to prove general tenancy, as observed
hereinabove, Applicants have failed to discharge their burden.
12] In this backdrop, both the Courts below, in my opinion, were
justified in recording finding that Applicants have failed to discharge
their burden of proving monthly tenancy. In this backdrop, findings
recorded by both the Courts below appear to be in tune with the
provisions of law. That being so, no case for interference is made out.
As such, Both these Revisions Applications fail and same stand
dismissed.
( NITIN W. SAMBRE, J. )
