[Cites 3, Cited by 0]
Bombay High Court
Dnyanoba Dhodiba Kasab And Ors. vs Mulla Abbasbhai Kadarbhai Abdulji ... on 10 March, 2026
Author: Milind N. Jadhav
Bench: Milind N. Jadhav
2026:BHC-AS:11648
SA.898.2017+WP.1246.2004.doc
Ajay
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 898 OF 2017
WITH
CIVIL APPLICATION NO. 1904 OF 2017
IN
SECOND APPEAL NO. 898 OF 2017
Dnyanoba Dhondiba Kasab .. Appellant
Versus
Mulla Abbasbhai Kadarbhai Abduji Charity Trust
& Ors. .. Respondents
WITH
WRIT PETITION NO. 1246 OF 2004
WITH
INTERIM APPLICATION NO. 12783 OF 2025
IN
WRIT PETITION NO. 1246 OF 2004
Dnyanoba Dhondiba Kasab .. Petitioner
Versus
Mulla Abbasbhai Kadarbhai Abduji Charity Trust
& Ors. .. Respondents
....................
Mr. Rajesh More, Advocate for Appellant / Petitioner.
Mr. R. N. Sanghavi, Advocate for Respondents.
....................
CORAM : MILIND N. JADHAV, J.
DATE : MARCH 10, 2026.
P.C.:
1. Heard Mr. More, learned Advocate for Appellant / Petitioner
and Mr. Sanghavi, learned Advocate for Respondents.
2. Parties are interse opponents in both these proceedings.
Second Appeal No. 898 of 2017 challenges order dated 21.09.2017
passed by District Judge-14, Pune in Civil Appeal No.285 of 2007
SA.898.2017+WP.1246.2004.doc
challenging Judgment and order dated 21.09.2017 passed by 6th
Additional Judge, Small Causes Court, and Joint Civil Judge, Senior
Division, Pune in Regular Civil Suit No.2021 of 1996 filed for recovery
of possession and perpetual injunction.
3. Writ Petition No. 1246 of 2004 challenges order dated
19.12.2003 passed by 10th Additional District Judge, Pune in Civil
Appeal No.263 of 2003 filed for declaration and mandatory injunction.
Facts are identical in both cases. Parties shall be referred to as
Appellant - Petitioner (Tenant) and Respondent No.1 - Trust
(Landlord) for convenience.
4. The dispute between the parties has given rise to two
separate sets of proceedings. The first set of proceedings arise from
Regular Civil Suit No.2021 of 1996 filed by Respondent No.1 - Trust
seeking recovery of possession of the suit premises. By judgment and
decree dated 21.03.2003, the learned 6th Additional Judge, Small
Causes Court and Joint Civil Judge, Senior Division, Pune decreed the
suit in favour of Respondent No.1 - Trust. The Appellant preferred
Civil Appeal No.285 of 2007 before the learned District Judge-14,
Pune, which came to be dismissed by judgment and order dated
21.09.2017. Aggrieved thereby, the Appellant has filed the present
Second Appeal No.898 of 2017.
5. The second set of proceedings arise from Civil Appeal
SA.898.2017+WP.1246.2004.doc
No.263 of 2003 decided by the learned 10th Additional District Judge,
Pune by judgment dated 19.12.2003, which is challenged in Writ
Petition No.1246 of 2004. Since both proceedings arise out of dispute
concerning the same suit premises and involve identical issues, they
are heard and disposed of together.
6. Brief facts necessary for adjudication of the present
proceedings are as under:
6.1. One Abdul Sattar Khan (Original Owner) owned Room No.3
admeasuring 8 × 10 sq. ft., constructed upon land bearing Municipal
No.558/A, Nana Peth, Pune, (for short 'suit property'). Suit property is
presently owned by Respondent No.1 - Trust of which Respondent
Nos.2 to 7 are the trustees. Suit property is a single room in a chawl
which belongs to the Trust - Landlord.
6.2. After demise of Abdul Sattar Khan, his legal heirs sold suit
property to Respondent No.1 - Trust. The suit premises was leased to
late Ramchandra and rent receipts were issued in his name.
6.3. According to Appellant / Petitioner, his grandfather Vithoba
had two sons, namely Ramchandra and Dhondiba. Appellant /
Petitioner is the son of Dhondiba. Dhondiba was residing in Room
No.10 in the same chawl, while Ramchandra resided in the suit
property namely Room No. 3. It is Appellant / Petitioner's case that
both rooms were taken on tenancy by the two brothers from the
SA.898.2017+WP.1246.2004.doc
original owner and they were residing in close proximity and using
both the premises as members of one family.
6.4. Ramchandra resided in the suit premises (Room No.3) along
with his wife Parvatibai. They had no issues / children. Ramchandra
died on 04.01.1989, after which Parvatibai continued to occupy the
suit premises (Room No.3). Parvatibai continued to pay rent to
Respondent No.1 - Trust - Landlord, however rent receipts continued
to be issued in the name of Ramchandra i.e. her deceased husband.
6.5. Parvatibai addressed letters dated 30.03.1989 and
13.10.1995 to Respondent No.1 - Trust requesting it to issue rent
receipts in her name however no response was received and rent
receipts continued to be issued in her name upto December 1995.
6.6. It is the case of Appellant / Petitioner that due to Parvatibai's
old age and frail health, he was residing with her in the suit property
(Room No.3) and looked after her until her demise. On 15.11.1995 she
expired in the suit property and her obsequies were performed by
Appellant / Petitioner. Thereafter he addressed letter dated
01.01.1996 to Respondent No.1 - Trust requesting to transfer the rent
receipt to his name. Respondent No.1 received the aforementioned
letter but took no action. Further, since January 1996, Respondent
No.1 - Trust stopped accepting rent payment from Appellant /
Petitioner, despite the same being sent by him by money order to the
Trust.
SA.898.2017+WP.1246.2004.doc
6.7. Respondent No.1 - Trust filed Regular Civil Suit No.2021 of
1996 seeking possession and injunction in respect of the suit premises
(Room No.3) and disputed the alleged tenancy right and possession
claimed by Appellant / Petitioner.
6.8. Respondents filed written statement and additional written
statement, denying that Appellant / Petitioner was residing with
Parvatibai during her lifetime or that he was entitled to tenancy rights
in Room No.3. According to Respondents, suit property was vacant
after Parvatibai's demise and Appellant / Petitioner made false claims
relying upon fabricated documents.
6.9. On the basis of pleadings and evidence, by judgment and
decree dated 21.03.2003, the learned 6th Additional Judge, Small
Causes Court and Joint Civil Judge, Senior Division, Pune decreed
Regular Civil Suit No.2021 of 1996 in favour of Respondent No.1 -
Trust. Being aggrieved thereby, Appellant / Petitioner preferred Civil
Appeal No.285 of 2007 before the learned District Judge-14, Pune,
which came to be dismissed by judgment and order dated 21.09.2017.
Hence the Second Appeal.
6.10. As a counterblast to the Landlord's suit, Appellant -
Petitioner filed a separate parallel Suit No.677 / 1997 on 03.10.1997
seeking declaration as Tenant in respect of Room No.3. The learned
Trial Court decreed the suit in favour of Plaintiff and declared him as
SA.898.2017+WP.1246.2004.doc
Tenant. The Respondent No.1 - Trust being aggrevied filed Civil
Appeal No.263 of 2003 against the said declaration. Civil Appeal
No.263 of 2003 was allowed by the learned 10th Additional District
Judge, Pune by judgment and order dated 19.12.2003, which is the
subject matter of challenge in Writ Petition No.1246 of 2004 by the
Appellant / Petitioner.
6.11. Second Appeal No.898 of 2017 and Writ Petition No.1246 of
2004 arise from the aforesaid proceedings with respect to the same
Suit property and the same cause of action and are therefore being
heard and decided by this common judgement.
7. Mr. More, learned Advocate for Appellant / Petitioner relying
upon Written Statement dated 09.10.1997 and Additional Written
Statement dated 27.07.2001 filed on record would submit that lower
Courts below failed to appreciate that Appellant / Petitioner was
residing in the Suit premises as a member of the family of the deceased
tenant Parvatibai (wife of Ramchandra) for a considerable period of
time prior to her demise on 15.11.1995 and was therefore entitled to
statutory protection under Section 5(11)(c) of the Maharashtra Rent
Control Act, 1999 (for short 'the said Act'). He would submit that the
impugned judgments suffer from errors apparent on the face of the
record and warrant interference by this Court. He would submit that
the original tenant Ramchandra of Room No.3 and his wife Parvatibai
were issueless and were being looked after by the Appellant /
SA.898.2017+WP.1246.2004.doc
Petitioner, who is their nephew (son of Dhondiba, brother of
Ramchandra) and that Appellant / Petitioner and his family members
were residing in close proximity in Room No.10 to Parvatibai and using
the suit premises (Room No.3) as members of one single joint family.
7.1. He would submit that after the demise of Ramchandra,
Parvatibai continued to occupy suit property (Room No.3) and
Respondent No.1 - Trust accepted rent from her thereby
acknowledging subsistence of tenancy, though all rent receipts
continued to be issued in the name of the original tenant Ramchandra
i.e. her deceased husband.
7.2. He would submit that Parvatibai addressed letters dated
30.03.1989 and 13.10.1995 to Respondent No.1 - Trust requesting
issuance of rent receipts in her name and had specifically stated
therein that Appellant / Petitioner was residing with her as a member
of her family, which fact was never disputed or denied by Respondent
No.1 - Trust (Landlord).
7.3. He would submit that Respondent No.1 - Trust did not reply
to the above letters which amounts to acquiescence and implied
acknowledgment of Appellant / Petitioner's residence in the suit
property (Room No.3) along with Parvatibai.
7.4. He would submit that after the demise of Parvatibai on
15.11.1995, Petitioner being her close relative and having resided with
SA.898.2017+WP.1246.2004.doc
her continuously prior to her demise, became entitled to transmission
of tenancy rights in view of the provisions of Section 5(11)(c)(i) of the
said Act.
7.5. He would submit that the lower Courts erred in holding that
mere absence of rent receipts in the name of Parvatibai or Appellant /
Petitioner would defeat the statutory right of transmission, when
continuous residence and family membership are the determinative
factors under the said Act. He would submit that both lower Courts'
finding that Appellant / Petitioner was an unauthorized occupant is
therefore erroneous, as Petitioner was in settled possession even during
the lifetime of Parvatibai and continued to occupy the suit property
(Room No.3) thereafter in his own right as a statutory tenant.
7.6. He would submit that after January 1996 Respondent No.1 -
Trust refused to accept rent tendered by Appellant / Petitioner to them
with the sole object to defeat his lawful claim of tenancy over the suit
property (Room No.3).
7.7. He would submit that Respondents initially filed suit for
injunction simpliciter without seeking possession or any declaratory
releifs as they themselves were not in possession of the suit premises.
7.8. He would submit that the Trial Court and the Appellate
Court both failed to consider that issue of tenancy and transmission of
tenancy under Section 5(11)(c) of the said Act falls within the
SA.898.2017+WP.1246.2004.doc
exclusive jurisdiction of the Tenancy Court and that the Civil Court
lacked jurisdiction to decide the same.
8. PER CONTRA, Mr. Sanghavi, learned Advocate for
Respondents would draw my attention to the Affidavits dated
11.02.2003 and 21.02.2003 of Shri Kaizar Abdeali Poonawala, Trustee
of Respondent No.1 - Trust, and Shri Mohammadbhai Kurbansussen
Poonawalla, employee of the Trust and would submit as under:-
8.1. He would submit that the suit property namely Room No.3
admeasuring 10' x 8' situated at 558/A, Nana Peth, Pune is owned by
Respondent No.1 - Trust and was originally let out to Ramchandra
Vithoba Kasab. He would submit that at the time of his demise on
04.01.1989 only his wife Parvatibai was residing with him and
therefore tenancy devolved solely upon her. He would submit that
Appellant / Petitioner is the son of Dhondiba Kasab who was a tenant
of a different room bearing No.10 in the same chawl. He would
submit that tenancy of Room No.3 and Room No.10 were separate,
distinct and independent. He would submit that Appellant / Petitioner
has failed to establish any legal relationship entitling him to claim
succession as successor - in - title to the tenancy of Room No.3 being
the suit property.
8.2. He would submit that entire case of Appellant / Petitioner is
based on the assertion that he was providing care and residing with
SA.898.2017+WP.1246.2004.doc
Parvatibai at the time of her death on 15.11.1995. This fact is
specifically denied by the Trust since Appellant / Petitioner has not
produced any cogent documentary evidence such as ration card,
electoral record or any independent witness to establish his continuous
residence with the deceased tenant's wife until her demise.
8.3. He would further submit that Appellant / Petitioner
purchased a MHADA flat at Yerawada, Pune in the year 1989 and was
infact residing there with his family. Hence he would submit that in
such circumstances, contention that he was residing in the suit
property (Room No.3) along with Parvatibai is wholly improbable
rather falsity.
8.4. He would rely upon the Affidavit of evidence filed by Shri
Kaizar Abdeali Poonawala, Trustee of Respondent No.1 - Trust, who
has deposed that after demise of Parvatibai, the premises were vacant
and Plaintiff illegally put his lock on the said room and thereafter
claimed alleged tenancy rights.
8.5. He would also rely upon Affidavit dated 21.02.2003 of Shri
Mohammadbhai Kurbansussen Poonawalla, who has been collecting
rent from tenants for several years and who has categorically stated
that only Parvatibai was residing in the suit premises and at no point of
time Appellant / Petitioner was residing with her therein.
8.6. He would therefore submit that Appellant / Petitioner failed
SA.898.2017+WP.1246.2004.doc
to satisfy mandatory requirement of continuous residence as a member
of Parvatibai i.e. tenant's family at the time of her death under Section
5(11)(c) of the said Act and is merely an unauthorized occupant and
hence both the Courts below have correctly ruled in favour of the
Respondent No.1 - Trust and against the Appellant / Petitioner.
9. I have heard Mr. More, learned Advocate for Appellant /
Petitioner and Mr. Sanghavi, learned Advocate for Respondents and
with their able assistance perused the record of the case. Submissions
made by the learned Advocates have received due consideration of the
Court.
10. The central issue arising for determination in the present
proceedings is whether the Appellant / Petitioner has established his
entitlement to transmission of tenancy in respect of the Suit property
i.e. Room No.3 admeasuring 8 × 10 sq. ft., situated at Municipal
No.558/A, Nana Peth, Pune (hereinafter referred to as "the suit
premises"), consequent upon the demise of Parvatibai on 15.11.1995.
Parvatibai is the wife of the original tenant Ramchandra who expired
on 04.01.1989. The claim is founded upon Section 5(11)(c) of the
Rent legislation, which provides for devolution of tenancy upon such
member of the tenant's family who was residing with the tenant at the
time of death.
11. The present Second Appeal arises from concurrent findings
SA.898.2017+WP.1246.2004.doc
of fact recorded and concluded by the learned Trial Court and upheld
by the learned First Appellate Court, whereby the suit for possession
instituted by Respondent No.1 - Trust has been decreed and the
defence of tenancy set up by the Appellant / Petitioner has been
rejected on merits.
12. It is trite that in order to succeed in a claim of transmission
under Section 5(11)(c), the claimant must establish two foundational
requirements: first, that he is a member of the tenant's family; and
second, that he was residing with the tenant at the time of the tenant's
death. The condition of residence is not merely procedural or
incidental; it is substantive and mandatory. Unless residence at the
relevant time is strictly proved, the statutory protection cannot be
invoked.
13. The admitted position on facts in the present case is that the
original tenant of the suit premises was Ramchandra Vithoba Kasab.
Upon his demise on 04.01.1989, his widow Parvatibai continued in
occupation of the premises. Rent receipts continued to be issued in the
name of the deceased tenant Ramchandra. There is no dispute
regarding transmission of tenancy to Parvatibai as the tenant's wife
after the demise of Ramchandra in 1989. However until 1995 the
tenancy remained in the name of Ramchandra. The controversy has
arisen only upon Parvatibai's death on 15.11.1995, when the Appellant
SA.898.2017+WP.1246.2004.doc
/ Petitioner has asserted succession to the tenancy.
14. The case of the Appellant / Petitioner is that owing to
advanced age and deteriorating health of Parvatibai, he has shifted to
the suit premises (Room No.3) and was residing with her until her
demise. Merely on this premise, it is contended that the tenancy stood
transmitted to him by operation of law.
15. However, the burden to establish such continuous residence
lay squarely upon the claimant i.e. Appeallant - Petitioner. A statutory
right cannot be presumed; it must be proved. In matters concerning
residence, particularly when such residence forms the foundation of a
statutory entitlement, the Court expects cogent and reliable evidence.
16. In the present case, apart from his own oral deposition and
reliance upon certain letters allegedly addressed by Parvatibai to the
Trust, no other independent documentary evidence has been produced
by the Appellant / Petitioner to establish that he was residing in the
suit premises either with the Original Tenant Ramchandran or after his
demise with Parvatibai as claimed by him during the relevant time. No
entries from ration cards, electoral rolls, municipal records or any
contemporaneous public documents have been brought on record
Appellant - Petitioner. No independent witness from the locality has
been examined to corroborate the claim of residence.
17. The absence of such evidence assumes greater significance
SA.898.2017+WP.1246.2004.doc
in light of the material brought on record by the Respondents.
Evidence of the Rent Collector prima facie has proved that Parvatibai
had lived all alone after Ramchandra's demise in 1989 until she passed
away in 1995 and after which Appellant - Petitioner put his lock on
Room No.3. It has come in evidence that the Appellant / Petitioner had
before Parvati's demise purchased an independent residential
accommodation at Yerawada in the year 1989 and was residing there
with his family. It is seen that this flat was alloted to Appellant -
Petitioner by MHADA on him filing declaration that he did not have /
own any other premises in Pune area. The existence of separate
residential premises in his name is not a trivial circumstance. It directly
bears upon the credibility of his assertion that he had shifted
permanently to the suit premises (Room No.3) and was residing there
continuously as a member of Parvatibai's family.
18. The learned Trial Court has considered this aspect in detail
and returned cogent and reasoned findings thereon which cannot be
doubted in the light of the evidence that is recorded and considered.
The Court has observed that if the Appellant / Petitioner had indeed
shifted to the suit premises permanently in the year 1989, there ought
to have been some contemporaneous documentary reflection of such
change of residence. The absence of such evidence weighed with the
Trial Court in rejecting the plea of continuous residence.
SA.898.2017+WP.1246.2004.doc
19. The Respondent - Trust examined Landlord examined Shri
Mohammadbhai Kurbansussen Poonawalla, the Rent Collector on
behalf of the Trust for several years. His testimony is categorical to the
effect that only Parvatibai was residing in the suit premises until her
demise in 1995 and the Appellant / Petitioner was never residing
therein. The learned Trial Court, having had the advantage of
observing the demeanour of the witness, accepted this testimony as
credible and trustworthy.
20. The learned First Appellate Court has independently
reappreciated the entire evidence, both oral and documentary, and has
concurred with the findings recorded by the Trial Court by returning
appropriate cogent findings. The Appellate Court has specifically
observed that the Appellant / Petitioner failed to produce any reliable
material to substantiate his plea of residence and that the evidence on
record does not probabilise his case.
21. In this regard, I would like to refer to the decision of this
Court in the case of Jivatsingh Dhansinghani Vs. Padma Hemandas1
which states that mere relationship with the deceased tenant or
occasional visits do not satisfy the statutory requirement. The
expression "residing with" connotes actual, continuous and bona fide
residence at the time of death of the tenant. The statutory condition
cannot be diluted by sympathy or equitable considerations.
1 (2004) 1 Maj LJ 672
SA.898.2017+WP.1246.2004.doc
22. The contention advanced on behalf of the Appellant /
Petitioner that the Respondent - Trust did not reply to certain letters
addressed by Parvatibai and that such silence amounts to acquiescence
cannot be accepted. Transmission of tenancy is governed strictly by
statutory mandate. It does not arise from consent, waiver or omission
on the part of the landlord. In the absence of proof of residence, no
right can therefore accrue.
23. Both the Courts below have concurrently recorded findings
that the Appellant / Petitioner has failed to establish that he was
residing with Parvatibai at the time of her death. These findings are
based on appreciation of evidence and are supported by material on
record. It cannot therefore be argued that relevant evidence has been
ignored or that inadmissible material has been relied upon.
24. The scope of interference in Second Appeal under Section
100 of the Code of Civil Procedure is also well defined. This Court does
not sit as a Court of further appeal to reassess the evidence. Unless the
findings are shown to be perverse, based on no evidence, or vitiated by
misapplication of law, interference in Second Appeal is not warranted
at all.
25. In the present case, the Appellant / Petitioner has not
demonstrated that the findings recorded by the Courts below suffer
from any perversity or substantial error of law. The entire challenge is
SA.898.2017+WP.1246.2004.doc
directed towards reappreciation of evidence and substitution of a
different factual inference. Such an exercise is beyond the permissible
limits of jurisdiction under Section 100.
26. In view of the above discussion, this Court is of the
considered opinion that the Appellant / Petitioner has failed to
establish the mandatory requirement of residence with the tenant at
the time of her death under Section 5(11)(c) of the Maharashtra Rent
Control Act, 1999. Consequently, no right of transmission of tenancy in
respect of the suit premises can be claimed by the Appellant /
Petitioner.
27. The concurrent findings recorded by the learned Trial Court
and affirmed by the learned First Appellate Court are based on proper
appreciation of the evidence on record and do not suffer from any
perversity or error of law warranting interference in Second Appeal.
No substantial question of law arises for consideration.
28. Accordingly, Second Appeal No. 898 of 2017 and Writ
Petition No. 1246 of 2004 both stand dismissed. There shall be no
order as to costs. Pending Civil Application and Interim Application are
also disposed.
[ MILIND N. JADHAV, J. ]
Ajay
