Shri. Kukeshali Shriniwasa Hegde ... vs Smt. Radha Sadanandan (Deleted ...
2022 Latest Caselaw 7203 Bom

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                                                           7.CRA.354.2022 .doc


         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 CIVIL APPELLATE JURISDICTION

        CIVIL APPELLATE JURISDICTION NO. 354 OF 2022

Shri Kukehalli Shriniwasa Hegde (since
deceased) through Smt. Sumathi
Sriniwas Hegde & Ors.                                ..Applicants
      Versus
Smt. Radha Sadanandan (Since deceased)
Miss. Flymy Sadanandan & Ors.                       ..Respondents

Mr. J. M. D'silva i/b. Adv. Jacqueline Dsilva for the applicants.


                             CORAM : NITIN W. SAMBRE, J.

DATED : 26th JULY, 2022 P.C.:

1. The respondents/plaintiffs initiated R.A.E. Suit No. 931/1612

of 2008 on the ground of subletting and change of user.

2. The change of the user alleged was from the commercial to

storage, whereas subletting was pursuant to leave and license

agreement entered into between the defendant no. 1 on one hand

and defendant nos. 2 & 3 vide agreement dated 18/10/2007 which

is claimed to have continued by the present applicants who are

legal representatives of the original defendant no. 1.

3. The said suit came to be decreed vide the judgment and

order dated 13.06.2013.

4. The applicants feeling aggrieved preferred an Appeal No. 36

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of 2013 which was also dismissed on 11.04.2022.

5. The contentions of the counsel for the applicants are both

the Courts below have committed an error of jurisdiction in failing

to appreciate the fact that the applicant, who have completed his

education in hotel management was also running a catering

business as against the original business of his father i.e.

defendant no. 1 of managing lunch home.

6. He would then urge that even if intermediately the premises

were used for storage, the permissible user was never changed.

7. In addition, the contentions are, even if certified copy of the

leave and license agreement dated 18/10/2007 entered into

between defendant no. 1 on one hand and defendant nos. 2 & 3 is

brought on record and was exhibited, the contents thereof were

not proved by examining witnesses particularly in the backdrop of

the fact that the applicants has denied execution of any such

document.

8. That being so, he would urge that both the Courts below

have committed error in relying on the aforesaid peace of

evidence i.e. certified copy of leave and license agreement dated

18/10/2007.

9. So as to substantiate his contentions, he has invited my

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7.CRA.354.2022 .doc

attention to the affidavit of examination of chief of non-applicants/

plaintiffs, their cross examination, so also the cross examination of

the applicant/defendant no. 1.

10. I have appreciated the said submissions.

11. At this stage, the counsel for applicants seeks time till

tomorrow so as to enable him make a statement whether the

applicants intend to surrender the possession of the suit premises

pursuant to the decree already granted.

12. Stand over to 27/07/2022 (FOB).

          Digitally signed
ANANT     by ANANT
KRISHNA
                                                              (NITIN W. SAMBRE, J.)
          KRISHNA NAIK
          Date: 2022.07.26
NAIK      19:53:20 +0530




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