1 wp4693-98 rpa IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURSIDICTION WRIT PETITION NO. 4693 OF 1998 Bhalchandra Narayan Patil .. Petitioner V/s. Vijay Bhawantrao Naik & Ors. .. Respondents ..... Mr. S. V. Pitre for the petitioner. None for the respondents. ..... CORAM : A.S.OKA, J. DATE : NOVEMBER 22, 2011. ORAL JUDGMENT : Heard the learned counsel appearing for the petitioner. None appears for the respondents. The petitioner is the second defendant in a suit filed by the first and second respondents. The suit premises consists of two rooms more particularly described in the plaint. The case made out in the plaint was that one Narayan, the father of the petitioner and third respondent was inducted as a tenant in the suit premises. It is contended that at the time of his death, the third respondent (first defendant) was residing in the suit premises along with him. It was contended that the first and second respondents accepted the third respondent as the monthly tenant after the demise of the original tenant Narayan and the petitioner acquiesced in the relationship 2 wp4693-98 between the first and second respondents on one hand and the third respondent on the other hand. The suit was filed by the first and second respondents on the ground of bona fide requirement and on that ground that the third respondent has built a suitable premises at Nigadi, Pune. Possession was also claimed on the ground of non user for the period of six months prior to the institution of the suit. 2. The third respondent contested the suit by filing the written statement. The third respondent contended that he along with the petitioner were residing with their father at the time of his death. It was contended that the petitioner was the co-tenant who was not served with any notice. The petitioner filed a written statement contending that at the time of the death of his father, he was residing with his father in the suit premises and rent receipt was transferred in the name of the first defendant/third respondent only for the sake of convenience. 3. The trial Court held that it was the third defendant who become the tenant after demise of the original tenant and the petitioner was not entitled to claim tenancy. A decree for eviction was passed only on the ground that the third respondent who was the tenant has built a new house. Appeal was preferred by the petitioner before the District Court. Appeal was dismissed by 3 wp4693-98 confirming the decree of the trial Court. 4. The learned counsel appearing for the petitioner submitted that there is nothing brought on record to show that after demise of the father of the petitioner, there was any agreement between the legal representatives of the father by which it was agreed that the third respondent shall become tenant. He submitted that even assuming that the third respondent was residing in the suit premises along with the father at the time of demise of the father, even the petitioner was also residing in the suit premises at the time of death of the father. In the absence of agreement between the petitioner and the third respondent, the petitioner will continue to exercise rights as a tenant. He submitted that there is no finding recorded regarding any agreement between the legal representatives of the deceased tenant that the third respondent should become the tenant. He submitted that in absence of any agreement, the Courts below committed an error by holding that the petitioner has no right as regards the tenancy. He submitted that Courts below committed an error by holding that only the third respondent was a tenant. He, therefore, submitted that the petitioner could not be thrown out on the ground that the third respondent has built a house. 5. I have given careful consideration to the submissions. 4 wp4693-98 Clause (c) of Section 5(11) of the Bombay Rents, Hotel Lodging, House Rates Control Act,1947 (hereinafter referred to as “the said Act”) and in particular Sub Clause (i) of Clause (c) provides that in case of premises let out for residence, any member of family of the tenant residing with the tenant at the time of his death, or in absence of such member, any heir of the deceased tenant, as may be decided in default of agreement by Court is entitled to become a tenant in place of deceased tenant. The consistent view of this Court is that for the purposes of Section 5(11)(c) of the said Act, it can be only one person who can be regarded as a tenant. This view can be found in various Judgments starting from the decision in the case of Gool Rustumji Lal V/s. Jal Rustomji [(1971) 73 Bom. L. R. 600]. In default of agreement between the persons claiming tenancy after the death of tenant, the conflict has to be resolved by the Court. 6. Coming back to the facts of the case, suit was filed in the 1991. The father of the petitioner admittedly died in the year 1966. In the cross-examination, the petitioner has admitted the following factual aspects: (i) After the death of the father, till 1992, the third respondent resided in the suit premises. (ii)The first and second respondents regularly issued 5 wp4693-98 rent receipts in the name of the third respondent. (iii)The petitioner did not raise any dispute for issuing rent receipts in the name of the third respondent. (iv)He never approached the first and second respondents for informing them that they should not accept the rent from the third respondent. (v)He never raised any dispute with the third respondent regarding tenancy. (vi)It was with his consent that rent receipts were issued in the name of the third respondent. 7. Agreement contemplated by Section 5(ii)(c)(i) can be inferred from the conduct of the parties. The aforesaid statements made on oath by the petitioner clearly show that after the demise of the father, the petitioner consented to the third respondent being treated as the tenant in respect of the suit premises and, therefore, in view of the clinching admissions of the petitioner, no fault can be found with the concurrent finding of fact recorded on the issue of right of tenancy by the Courts below. 8. The finding of fact recorded by the trial Court is that there is acquisition of a suitable residence by the third respondent who is the tenant. Perusal of the Judgment of the Appellate Court shows 6 wp4693-98 that there is no point framed on the question of acquisition by the third respondent which shows that the said finding was not assailed by the petitioner before the Appellate Court. 9. Hence, there is no merit in the petition. The petition is rejected. Rule is discharged with no order as to costs. 10. On the prayer made by the petitioner, the decree for possession shall not be executed for a period of 12 weeks from today subject to condition that the petitioner shall not create any third party rights and shall not part with possession of the suit premises. (A.S.OKA, J.)