ssm sm sm IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO. 925 OF 1996 PETITION NO. 925 OF 1996 PETITION NO. 925 OF 1996 Gurunath Jayawant Banawalikar, R/o.Somwarpeth Malwan, Ta.Malwan Dist.Sindhudurg. ...Petitioner. Vs. 1. Prabhakar Vaman Hirlekar, R/o. Somawarpeth, Malwan, Tq.Malwan, Dist.Sindhudurg. 2. Gurunath Mahadev Dhavade, R/o. Somawarpeth, Malwan, Tq. Malwan, Dist. Sindhudurg. ...Respondents. Shri G.S.Godbole with Mr.R.S.Desai with Mr. S.S.Kanetkar for the Petitioner. Mr.A.S.Khandeparkar for Respondent No.1. CORAM CORAM CORAM : : : ANOOP V.MOHTA, J. ANOOP V.MOHTA, J. ANOOP V.MOHTA, J. DATED DATED DATED : 18th November, 2008. : 18th November, 2008. : 18th November, 2008. JUDGMENT:- JUDGMENT:- JUDGMENT:- The Petitioner-Tenant/ Original Defendant No.1 has challenged the impugned order passed by the Courts below granting the decree of possession against him, on the ground of subletting. 2. The relevant facts as alleged are:- . The Petitioner is a tenant of the Suit premises for the past 40 years at a rent of Rs.17.50 of a portion of the House excluding Varanda and room. 3. On 15/03/1974, Respondent No.1 gave a Notice to ( 2 ) deliver peaceful possession on the ground that Respondent No.2 was given Varanda portion. The Petitioner replied to the notice denying the allegations. No suit was filed for the next 12 years. 4. In the year 1986, another notice terminating tenancy was issued to the Petitioner on the ground of subletting part of the premises to Respondent No.2. Respondent No.1 also filed a suit in the Court of Civil Judge, Junior Division, Malvan. 5. On 09/06/1988, the learned Trial Court decreed the suit of Respondent No.1 and directed the Petitioner to handover possession to Respondent No.1. 6. In the year 1988, the Petitioner filed Appeal in the District Court, Sawantwadi challenging the order of the Trial Court. 7. On 06/11/1995, the Petitioner’s appeal filed in the Additional District Court, Sawantwadi was dismissed, hence the present petition. 8. The property is described by the Appellate Court in Paragraph 8 is as under:- ( 3 ) . The house No.1836, admittedly is of the Plaintiff-landlord. That consists of Varandah, and 4 rooms, and the first floor on it. The Plaintiff-landlord who examined himself at Exhibit 25 has stated that varandah and 4 rooms having floor is in possession of Defendant No.1 as a tenant so to say entire property, the house No.1836 is the tenement. Admittedly, no details regarding tenements the areas of the tenement, were averred in the plaint. Only it is contended that the varandah is the part of the tenements. 9. The Plaintiff has lead his own evidence and placed on record the material documents including notice and rent receipts. The Petitioners lead his own evidence and evidence of Respondent No.2 and notice issued by Respondent landlord in the year 1974. 10. In the notice of 15/03/1974 the landlord had complained and issued a notice to Defendant No.1 about the illegal subletting of premises to father of Defendant No.2 and terminated the tenancy and demanded possession, as well as, arrears of rent. The documents are also relied by the Petitioner. In the ( 4 ) evidence, Defendant No.2 has admitted the possession from 1974. Respondent No.2 failed to prove that they were paying rent directly to the landlord or they have any relationship or permission to occupy the premises from the landlord. The unauthorized occupation by Respondent No.2 and specifically of the Varandah with one room, remained undisturbed and uncontroverted since 1974. The Courts below rightly come to the conclusion that the landlord-Plaintiff has discharged the burden and proved that Respondent No.2 is sub-tenant. The occupation of Defendant No.2 in the premises with above description let out the premises to Defendant No.1-Original tenant and further proved the unauthorized occupation of Defendant No.2 as permitted by Petitioner-Defendant No.1. 11. The submission that there was no proper description given by the landlord-plaintiff, has no force as description recorded by the Appellate Court and as there is an ample material that Defendant No.2 was occupying portion of this premises, in my view that is sufficient to maintain the orders passed by the Courts below granting the permission against the Petitioners-original tenant. Therefore, the subletting so created by the tenant without written ( 5 ) consent and permission from the plaintiff-landlord, there is no denial to the same at any point of time including the earlier notice of the year 1974, merely because, action was not taken immediately that itself in no way the reason to discard the landlords case on the ground of any acquisition or implied permission. The good relations even if landlord and sub-tenant during this period that itself cannot be the reason to throw away the landlords case on the ground of sub-tenancy. Delay in filing such proceedings of eviction in the facts and circumstances of the case in no way sufficient to overlook the concurrent findings given by the Courts below. Both the tenants failed to prove that any relationship of tenancy with regard to the portion of the property/premises in question with the landlord-plaintiff, however destroy their case as I fail to prove such relationship including written permission or consent with regard to the sub-tenancy. The long occupation and possession of part of the premises by the sub-tenant that is sufficient to consider the case of the sub-tenancy as he is enjoying the same without consent and permission from the landlord and may be with the consent and permission of the tenant in the present case, therefore, AIR 1990 AIR 1990 AIR 1990 S.C. S.C. S.C. 1208, Delhi Stationers and Printers, M/s. 1208, Delhi Stationers and Printers, M/s. 1208, Delhi Stationers and Printers, M/s. ( 6 ) V.Rajendra V.Rajendra V.Rajendra Kumar Kumar Kumar as relied upon by the learned counsel appearing for the Petitioner, is not applicable. The tenant and the sub-tenant are not related to each other. It is difficult for landlord to prove the nature of agreement of tenant or sub-tenant with regard to the compensation or rent, even if any. Once, the landlord proved illegal and exclusive possession of portion of the rented premises to the tenant by the sub-tenant, third person and that remained and the notice/complaint made to that, remained unanswered, merely because the landlord unable to place on record the monetary consideration. Compensation or rent paid by the sub-tenant to the tenant, in my view no ground to overlook, to proved case of sub-tenancy of the landlord. The finding of both the Courts with this regard cannot be interfered. Therefore, a reliance on Jostna Laxmidas Pujara & Anr. Jostna Laxmidas Pujara & Anr. Jostna Laxmidas Pujara & Anr. Vs. Vs. Vs. Kailasbhai Shukaram Tiwari, 2002(Supp.) Bom.C.R. Kailasbhai Shukaram Tiwari, 2002(Supp.) Bom.C.R. Kailasbhai Shukaram Tiwari, 2002(Supp.) Bom.C.R. 598 598 598, is no assistance to the Petitioner. The facts are distinct and distinguishable of cases cited by the Petitioners. 12. Taking all this into account, I am of the view that the Judgment and decree passed by the Lower Court and confirmed by the Appellate Court, need no ( 7 ) interference. 13. The Petition is dismissed. The interim order so granted, stands vacated. 14. At the request of the learned counsel appearing for the Petitioner, as he is in possession since long, the effect and operation of the Judgment is stayed for eight weeks from today. Stay is granted on the condition that he should not create any third party right and interest in the premises in question, in the meantime. (ANOOP (ANOOP (ANOOP V.MOHTA, J.) V.MOHTA, J.) V.MOHTA, J.)