Bombay High Court
Popat Shivlal And Company Thru ... vs Shankar Sitaramseth ... on 11 August, 2025
2025:BHC-AUG:21815
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 3834 OF 1998
1. Popat Shivlal and Company,
By it's Partner and Owner,
Popatlal Shivlal Kathewadi,
since deceased by his heirs
1a. Jagdishchandra Popatlal Shah,
Age 42 years, Occ. Trade,
R/o. At Amalner, Dist. Jalgaon.
1b. Smt. Aruna Anilkumar Shah,
Age 43 years, Occ. Household,
R/o. Govisa Apartments,
25, Adarsha Society,
Behind Onkar House, Navrangpura,
At Ahamadabad (Gujrath).
1c. Sau Kokilabai Hasmukhlal Shah,
since deceased by her LR
Hasmukhlal Vardhman Shah,
Age 45 years, Occ. Trader,
R/o. Venus Automobiles Godown Road,
Nizamabad (A. P.). ------Petitioners
VERSUS
1. Shankar Sitaramseth Shimpi
since deceased through his LRs.
1a. Smt. Subhadrabai Shankarsheth Shimpi,
Age 69 years, Occ. Household.
1b. Suresha Shankarsheth Shimpi,
(Died) through LRs
1b-1. Saroj Suresh Shimpi (Bhandarkar)
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Age : 66 years, Occu. Household
1b-2. Sameer Suresh Shimpi (Bhandarkar)
Age : 49 years, Occu. Agriculture
1b-3. Tushar Suresh Shimpi (Bhandarkar)
Age : 47 years, Occu. Agriculture
1b-4. Trupti Nitin Mandage
Age : 46 years, Occu. Household.
1b-1 to 1b-4 R/o. Wadi Chowk, Amalner,
Taluka - Amalner,
District - Jalgaon.
1c. Umesh Shankarsheth Shimpi,
(Died) through LRs
1c-1 Bharti Umesh Shimpi (Bhandarkar)
Age : 58 years, Occu. Household.
1c-2 Dipesh Umesh Shimpi (Bhandarkar)
Age : 31 years, Occu. Agriculture,
1c-3 Gautami Gaurav Waluj
Age : 35 years, Occu. Household
1c-1 to 1c-3 R/o Wadi Chowk, Amalner,
Taluka - Amalner,
District - Jalgaon.
1d. Sau Manda Murlidhar Shimpi,
Age 53 years, Occ. Household,
R/o. Kastar Park, Shimfalli Road,
Guru Tapasaya, Borivali (West),
Mumbai
1e. Sau Manik Sudhakar Shimpi,
Age 50 years, Occ. Household,
R/o. Near Tieguard Room Petrol Pump,
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Nagar Society, Nagpur Road,
At Pune.
1f. Sau Indira Bhaskar Shimpi,
Age 50 years, Occu. Houshold,
R/o. Sahyadri Colony,
Trimurti Housing Society,
At Kalva (Thane).
1g. Bharti Dilip Borse,
Age 42 years, Occ. Household,
R/o. Professors Quarters,
B. N. N. Colony, Dhaman Naka,
Bhivandi (Dist. Thane).
1h. Sandhya Ahit Khairnar,
Age 40 years, Occ. Household,
R/o. Vivekanand Housing Society,
Saraswat Colony,
Near Thakurli Station,
At Dombivali (East).
1j. Sau Chhaya Devidas Khairnar,
Age 38 years, Occ. Household,
R/o. Viveknand Nagar Hsg. Society,
Saraswat Colony,
Near Thakurli Railway Station,
At Dombivali (East). ---------Respondents
Mr. S. P. Shah, Advocate for Petitioners
Mr. R. M. Deshmukh, Advocate for Respondent Nos. 1-A to 1-J
CORAM : R. M. JOSHI, J.
RESERVED ON : 06 AUGUST, 2025
PRONOUNCED ON : 11 AUGUST, 2025
WP-3834-1998.odt 3 of 9
JUDGEMENT :
-
1. This petition filed under Article 227 of the Constitution of India
takes exception to the judgment and decree passed by the Appellate Court in
Civil Appeal No. 555/1989 whereby the judgment and decree passed in Civil
Suit No. 192/1983 came to be reversed and the suit for possession of the suit
property on the ground of sub-letting under Bombay Rents, Hotel And Lodging
House Rates Control Act, 1947 is decreed.
2. Parties are referred to as "Tenant" and "Landlord" for the sake of
convenience.
3. Landlord filed suit against tenant for recovery of arrears of rent
and possession of the suit property on the ground of non user, arrears and sub-
letting of first floor to use it as a video parlour and ground floor as a godown to
sub-lettee without permission of the landlord. Tenant filed written statement
denying the allegations and avernments made in the plaint. There is denial of
the fact of sub-letting as alleged by the plaintiff.
4. Parties after framing of the issues led evidence. During the course
of the hearing of the suit, the ground of non user was given up. Learned Trial
Court dismissed the suit with observations that landlord has failed to prove
sub-letting of the suit premises. Landlord being aggrieved by the said judgment
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and decree preferred appeal being Appeal No. 555/1989. Appeal came to be
partly allowed and the decree of eviction was passed against the tenant for sub-
letting ground floor of the suit premises. Tenant being aggrieved by the said
judgment and decree, filed this petition.
5. Learned counsel for tenant at the outset submitted that once the
issue of non user of the suit premises is given up by the landlord, it was not
open for the Appellate Court to record finding that there was non user on the
part of the tenant on the suit premises and, therefore, it amounts to sub-letting
of the ground floor. It is his submission that the statements in the plaint are
vague and lack necessary particulars. It is his further submission that in order
to constitute an act on the part of tenant as sub-lettee, there has to be a pleading
that the tenant has lost the possession of the tenanted premises to sub-lettee and
there is profit from such sub-letting. It is his submission by referring to the
evidence on record that even the testimony of the witness Budha examined by
landlord is not reliable for want of any supporting material. It is his submission
that the statements made by this witness also lack particulars and, therefore,
evidence led by the landlord is not sufficient to pass decree of eviction against
tenant on the ground of sub-letting. To support his submissions, he placed
reliance on the judgment of the Hon'ble Supreme Court in case of Vasant
Mahadev Pandit and another Vs. Zaibunnisa Abdul Sattar and others 2001
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(3) Mh. L. J. 118 and in case of Surendra M. Wagh and another Vs.
Manohar Krishna Kale and another 2006 (5) Mh.L.J. 70.
6. Learned counsel for landlord supported the impugned judgment
and decree by submitting that the Court is required to take into consideration
the over all facts and circumstances as brought on record before it and to then
decide as to whether the tenant has lost the possession and there is sub-letting
of the tenanted premises. He drew attention of the Court to the findings
recorded by the Appellate Court in Paragrph No. 28 of the impugned judgment
which according to him are in consonance with evidence on record and
sufficient to grant decree of eviction on the ground of sub-letting. He placed
reliance on the judgment of this Court in case of Julia Rodrigues Vs. Chandra
Gulab Advani 2024 (6) AIR Bom R 579.
7. Though number of grounds were taken up by the landlord for
eviction of the tenant from the suit premises, admittedly only ground of sub-
letting of ground floor of the suit premises subsist for consideration. Landlord
filed suit with specific plea that the tenant had sub-letted ground floor to
Mohanlal Sohalal Lodha for storage of onions. It is also claimed that the said
sub-letting has been done for charges. This, contention of the plaintiff was
denied in the written statement. The initial burden therefore, was on landlord to
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prove the unlawful sub-letting of the ground floor and only if the landlord
shows that the third party is in occupation and tenant himself is not on the
premises, the onus of proving said occupation of third person would shift upon
tenant.
8. Having regard to the fact that the understanding/agreement is
between tenant and the third party, the landlord is not expected to note the
details in respect of the terms between them. It is permissible for the landlord
to infer such agreement between them on the basis of the conduct of the parties
and the facts appearing on record. Thus, it cannot be expected that the landlord
in the pleading of the plaint would give details in respect of the terms of the
agreement between the tenant and sub-lettee. Thus, it cannot be said that the
pleadings of the landlord in the instant case are vague.
9. Perusal of the evidence indicate that the landlord was in a position
to substantiate before the Trial Court that the tenant was conducting business
from the said premises and had telephone connection therein. Landlord was
further able to prove that the tenant has shifted his place of business so also the
telephone connection was also shifted to another premises. In the backdrop of
this fact, when the Appellate Court records findings that there is evidence to
indicate that the tenant has stopped conducting of the business from the suit
WP-3834-1998.odt 7 of 9
premises and has shifted his telephone and, therefore, he is no more on the
premises, cannot be considered as a perverse finding. Such view finally
possible and such possible/plausible view cannot be interferred in exercise of
jurisdiction under Article 227 of the Constitution of India. Though the landlord
has given up ground of non user but that wouldn't prevent the Court to record
findigns on the basis of evidence on record about absence of tenant on the
premises. The findings recorded to that effect could certainly be taken into
consideration for deciding connected issues, including issue of sub-letting.
This court therefore, finds no substance in the arguments advanced on behalf
of tenant that on account of surrender of ground of non user, the finding of fact
of absence of tenant on suit property cannot be recorded.
10. In so far as the occupation of the sub-letting of the premises is
concerned, there is evidence to indicate that the sub-lettee used to store his
articles on the ground floor of the tenanted premise and son of sub-lettee used
to pay for it to the tenant. The landlord therefore, has discharged the initial
burden on him to substantiate his case of sub-lettee of the ground floor by
tenant to sub-letting permission and for income. The onus thus, shifted upon
the tenant to explain the nature of possession of sub-lettee of the tenanted
premises and also to substantiate that he was still in possession of the suit
premises at all point of time. The evidence led by the tenant is not sufficient to
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discharge the said onus.
11. The Trial Court has failed to take into consideration the evidence
on record in proper perspective and committed error in dismissing the suit.
This error, however, has been rightly corrected by the Appellate Court and
decree of eviction came to be passed by the impugned judgment and decree.
Since, the findings recorded by the Appellate Court are in consonance with the
evidence on record and also are in confirmity with the possession of land, they
cannot be termed as perverse in order to cause interference therein, in exercise
of writ jurisdiction under Article 227 of the Constitution.
12. As a result of above discussion, petition stands dismissed.
13. At this stage, learned counsel for the petitioners seeks
continuation of interim relief for a period of eight (08) weeks.
14. Learned counsel for respondents opposes the said request.
15. Since, the interim relief is running in favour of the plaintiff since
02.09.1998, the same is extended by six weeks from today.
(R. M. JOSHI, J.)
bsj
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