1 wp4862 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.4862 OF 1994 Sundar Ramchandra Jadhav (since deceased by L.Rs.) 1 Sudhir Sunder Jadhav 2 Sunil Sunder Jadhav 3 Suresh Sunder Jadhav 4 Shakuntala Sunder Jadhav 5 Sunita Sunil Shinde ...Petitioners vs. Kantilal Chhotalal shah (Since deceased through L.Rs.) 1 Savita w/o Kantilalshah 2 Vineet Kantilal Shah 3 Ujwala Kantilal Shah 4 Samir Kantilal Shah ...Respondents Mr.Madhav Jamdar for the petitioners Mr.N.B.Shah for respondent no.1 CORAM :A.S.OKA,J. DATE: NOVEMBER 30, 2010 ORAL JUDGMENT: 1 The present writ petition is filed by the defendant-tenant for challenging the decree of partial eviction passed by the Trial Court on the ground of bona fide and reasonable requirement which has been confirmed in appeal by the District Court. 2 The respondents are the legal representatives of the plaintiff Kantilal who was claiming to be the landlord and owner of the suit premises. For the sake of convenience, the parties are hereinafter referred to with reference to their status in the trial Court. 2 wp4862 3 The defendant is a tenant of a residential premises situated. The suit was filed by the plaintiff by alleging that he was residing in a rental premises and the rental premises were insufficient to satisfy the needs of his family. It was contended that the petitioner was having his own property and therefore, no hardship will be caused to the petitioner. The suit was contested by the petitioner by contending that plaintiff s brother Mohan has also an undivided share in the larger property. Various other contentions were raised in the written statement. The parties adduced evidence. 4 The trial Court accepted the case made out by the plaintiff that there was a partition between him and his brother Mohan in the year 1975 and in partition ,the plaintiff became the owner of the house property in which the suit premises is situated. The trial Court accepted the case made out that the plaintiff was residing in a rented single room admeasuring 10 x 12 .Therefore, a decree of eviction was passed on the ground of bona fide need of the plaintiff. The Appeallate Court has confirmed the said finding. 5 The learned counsel for the defendant submitted that the case regarding partition between the plaintiff Kantilal and his brother Mohan was not set out in the plaint. He submitted that the averments made in the plaint regarding bona fide requirement are devoid of particulars. He submitted that it was an admitted position that the alleged partition was a written partition. However, the document of partition was not produced before the Court. Moreover, he pointed out that the widow of the original plaintiff admitted that she was 3 wp4862 staying in the house of Mohan with his family. He submitted that even till filing of the suit, the plaintiff and his family members were occupying the house standing in the name of Mohan which shows that there was no bona fide need and the case of bona fide need is designed only to evict the defendant. He submitted that the partition was not established and could not be held as proved as the written document of partition was not produced. 6 The learned counsel for the legal representatives of the plaintiff submitted that after appreciation of evidence, the Courts below have recorded a finding of fact. He submitted that the Courts below have accepted that the plaintiff was residing in the rented accommodation and therefore, there bona fide need was established. The learned counsel invited the attention of the Court to the various findings recorded by the Courts below and submitted that there cannot be any re- appreciation of the evidence by the writ Court. 7 I have given careful consideration to the submissions. In paragraph 9 of the Judgment, the trial Court has taken a note of the contention raised by the widow of the plaintiff in her evidence that the plaintiff became the owner of the suit premises after the partition between him and his brother Mohan which was effected in the year 1975. The trial Court relied upon the admission of the defendant that from the year 1975, the plaintiff was issuing rent receipts. Various contentions have been also considered by the trial Court. Ultimately, the trial Court proceeded to record the following finding: 10...Therefore whatever evidence is adduced by plaintiffs in support of their case of 4 wp4862 partition has to be accepted because it is not sufficiently rebutted by the defendant. Therefore, prima facie, it must be held that the deceased Kantilal was the exclusive owner of the suit house, and therefore, the present plaintiffs are also exclusive owners of the suit property... 8 Perusal of the Judgment the Appellate Court shows that the said finding was confirmed. In paragraph 9, on the aspect of partition, the Appellate Court has observed thus: 9...He admitted that he was paying rent to Kantilal since 1975 because he became the owner of the said house. To my mind, therefore, the submission made on behalf of the Appellant that theory of partition was bogus one and was concocted story, does not contain any force... 9 Hence, the finding of both the Courts below is that there was a partition between the plaintiff and his brother Mohan and that the suit premises has been allotted to the share of the plaintiff. 10 Perusal of the plaint shows that there is not even a word in the plaint regarding partition between the plaintiff and his brother Mohan. The widow of the plaintiff stepped into witness box who denied that Mohan was also a co-sharer along with the plaintiff. She stated that Mohan became separate in the year 1974-75 and therefore, the suit house came to the share of the plaintiff. She stated that Mohan had two houses but they (legal representatives of the plaintiff) were not having any share in those houses. In the cross examination, it 5 wp4862 was admitted by the widow of the plaintiff that the house in which the suit premises was situated originally belonged to her father-in-law and after him by the deceased plaintiff and his brother Mohan. She stated that there was another house in which Mohan was still residing. She admitted that the partition between Mohan and plaintiff was in writing. Admittedly, said document of partition has not been produced before the Court to show partition. This important aspect has not been considered by the Courts below. In fact, the existence of partition was not pleaded in the plaint. 11 The evidence of the widow of the original plaintiff was recorded on 24th January 1991 in which she stated that her family was staying in the house of Mohan till the filing of the suit but they were staying separately in the house. Thus, it is an admitted position that till the filing of the suit, there was a separate accommodation available to her family in the house of Mohan. 12 Apart from the fact that in the plaint, the theory of partition is not pleaded, when admittedly the alleged partition was in writing, the same was not produced. Thus, apart from the fact that there was no pleading of partition, the Courts below ought to have drawn adverse inference against the legal representatives of the plaintiff on account of non production of the document of partition. The Appellate Court has observed that the widow of the plaintiff had no knowledge about the whereabouts of the document. However, no effort was made to get the document produced by examining the said Mohan. In the evidence recorded in January 1991, the widow of the plaintiff stated that till the date of filing of the suit, the plaintiff was occupying a tenement in the house 6 wp4862 of Mohan. A case is sought to be made out that the plaintiff was residing in the rented premises. It is an admitted position that there were two houses in possession of the said Mohan. In paragraph 10 of her deposition, the widow of the plaintiff categorically stated that both the said houses were owned by her father-in-law. Even till the institution of the suit, the family of the plaintiff was staying in a house of the said Mohan. In absence of the pleading and proof of partition, it is obvious that the plaintiff had a share in other two houses which were allegedly standing in the name of the said Mohan which fact is clear from the admission of the widow of the plaintiff that they continued to reside in the premises of Mohan till the filing of the suit. Even on the date of filing of the suit, the family of the plaintiff was residing in the premises standing in the name of Mohan. In absence of any material on record to show that there was a partition between Mohan and the plaintiff, taking the case of the respondent as it is, bona fide need was not established in as much as family of the original plaintiff was staying till the date of institution of the suit in the house property standing in the name of Mohan. In absence of evidence of partition, in the said two houses allegedly held by Mohan, the plaintiff continued to have a share. Taking the case of the respondent as it is, it is impossible to record a finding that bona fide need was established. The findings on the issue of bona fide need in the impugned Judgments and decrees are perverse and the same deserve to be quashed and set aside. 14 Hence, rule is made absolute in terms of prayer clause (b). Civil suit no.36 of 1983 stands dismissed with no order as to costs throughout. JUDGE