1 33-cra1024-10 rpa IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURSIDICTION CIVIL REVISION APPLICATION NO. 1024 OF 2010 Feroz Soli Irani & Anr. .. Applicants V/s. Sureshchandra S. Agarwal & Ors. .. Respondents ..... Mr. K. S. Dewal for the applicants. Mr. R. A. Thorat i/b. Mr. H. U. Chande for the respondents. ..... CORAM : A.S.OKA, J. DATE : NOVEMBER 28, 2011. P.C.: Heard the learned counsel appearing for the applicants. This Revision Application has been preferred by original obstructionist Nos.2 and 3. There were three obstructionists. The decree sought to be executed is a consent decree of eviction under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as “the said Act of 1973”). The first obstructionists was one Bomi R. Irani. The trial Court directed removal of obstruction. An Appeal was preferred by the present applicants before the Appeal Bench of the Court of Small Causes. The Appeal has been dismissed. 2. The contention raised by the first applicant (obstructionist No.2) by reply to the obstructionist notice for removal of obstruction was that the consent decree is nullity as the Court has 2 33-cra1024-10 not recorded its satisfaction regarding the existence of the grounds of eviction. It is contended that the second obstructionist was staying in the suit premises as a member of the family with Miss Gower who was the tenant in respect of the suit premises. Miss Gower died in the year 1980. It is contended that the second obstructionist has become a tenant under Section 5(11)(c) of the Bombay Rents Hotel and Lodging House Rates Control Act, 1987. 3. The learned counsel appearing for the applicants submitted that the consent decree has been obtained in collusion and by playing fraud with the knowledge that applicants were in possession of the suit premises. He submitted that the Court passing the decree has not recorded any satisfaction of the existence of grounds of eviction. He submitted that the second obstructionist has proved his possession from the year 1972 and therefore, he became a tenant being the member of the family of deceased Miss Gower residing with her at the time of her death. He pointed out that the third obstructionist has proved the possession in respect of one room out of the suit premises from the year 1961 as a licencee and therefore, she has become a tenant. 4. I have given careful consideration to the submissions. The Appellate Court has noted the admission of the first revision applicant Feroz in his evidence that the obstructionist No.1 was 3 33-cra1024-10 not in possession of any portion of the suit premises. The Appellate Court has noted that the first revision applicant admitted that in the year 1972, his age was 16 years. He admitted that from 1969 to 1972, he was residing at Fountain 221, Bora Bazar Street, Fort, Mumbai with the family of his step father. The first applicant stated in his evidence that as his mother had remarried, there was lot of tension and therefore, his mother suggested the first applicant to stay with said Gower in suit premises and accordingly he and his sister shifted in the said premises in the year 1972. The Appellate Court has dealt with the documents produced by the first applicant to prove his possession from 1972. The Appellate Court has observed thus: “3..... Obstructionist No.2, to substantiate his contention has produced some documents. Exhibit “2” electricity bill in the name of Firoze Irani dated 26.05.1982 to 27.07.1982, Exhibit “3” is receipt issued by Shree Bhatia Co-operative Housing Society dated 16.04.1984, Exhibit “4” collectively are the receipts dated 10.09.1982 and 14.09.1982, Exhibit “5” collectively is the correspondence in the name of Feroz Irani, Exhibit “6” is the Bank pass book in which there is a address of the suit premises, Exhibit “7” is the ration card dated 22.09.1982. Relying on these documents it is the submission of the learned Advocate for the Appellants that these documents are sufficient to prove the possession of the obstructionist from the year 1972. Except Bank pass book other documents which are filed are after the year 1982 i.e. after the death of Gower in the year 1980. No doubt, the date on the Pass Book is 01.10.1976. However, from the perusal of the said pass book it is clear that there is a overwriting in respect of the flat number written in the said pass book. 4 33-cra1024-10 Admittedly, step-father of the obstructionist is residing in adjacent flat i.e. Flat No.8. Further along with name of obstructionist Feroz, the name of Bomi Irani is appeared in the said pass book which is the name of his step- father. As per the case of the obstructionist he was resisting with Gower from the year 1972, then in the normal course the obstructionist would have written the name of Gower in the said pass book, however he has written name of his step-father with whom he is not on cordial terms. In the said Pass Book there is overwriting in respect of flat number which creates doubt whether it was flat No.7 or 8. Therefore, this pass book cannot be relied upon to prove the possession of the Obstructionist over the suit premises from the year 1972.” 5. After recording the aforesaid finding, the Appellate Court has held that there is no other document to prove possession of the first applicant from the year 1972 as most of the documents are brought into existence after the year 1980. Therefore, both the Courts below have rejected the case of the first revision applicant that he was residing with the said Gower as a member of her family at the time of her death. It is not possible to disturb the said concurrent finding based on appreciation of evidence. Hence, the first appellant has not proved his independent right in respect of the suit premises. 6. As far as the claim of the third obstructionist (second applicant) is concerned, she relied upon a leave and licence agreement executed by original tenant Feroz in favour of her mother. The Appellate Court noted that the said Miss. Gower had filed a suit in the City Civil Court in the year 1969 to which the 5 33-cra1024-10 second applicant was the party defendant. Though the second applicant claimed that the suit was decided against the said Miss. Gower, nothing was placed on record. The Appellate Court has observed that by filing a suit for eviction in the year 1969, the said Miss Gower revoked licence granted to the mother of the second applicant and therefore as of 1st February, 1973 there was no subsisting licence. Hence, it was held that the second revision applicant or her mother were not in possession under a subsisting as of 1st February, 1973. Therefore, as the licence was not subsisting, the second revision applicant will not be entitled to become a deemed tenant in accordance with Section 15A of the said Act of 1947. 7. Thus, both the applicants who were obstructions failed to prove any independent right in respect of the suit premises. Therefore, at their instance, the challenge to the consent decree on the ground that it is fraudulent cannot be entertained. There is no merit in the Revision Application and the same is rejected. 8. On the prayer made by the learned counsel appearing for the applicants, ad-interim relief granted on 6th December, 2010 will continue to operate for a period of 12 weeks from today. (A.S.OKA, J.)