IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4364 OF 1991 WITH CIVIL APPLICATION NO.1623 OF 2002 1.Kum.Indira Udhav Sanyasi, (Shimpi), Age 35 years, Occ: Service, Residing at ...Petitioner 1225/1, Opp.Apte Road, Pune. (Ori.Appellant) Versus 1.Sanjay Bhagwatrao Naik, Age about 24 years, Occ:Student, Residing at Vidhyabhavan Hostel, 984, Sadashiv Peth, Pune-30. 2.Vijaykumar Bhagwatrao Naik, 31 years, Occ: Agriculture, Residing at Belapur, Taluka Shrirampur, Dist.Nagar. 3.Purushottam Udhav Sanyasi (Shimpi), Age 52 years, Occ: Business, Residing at V/s.Hotel Peush, 42/5, Kasat Colony, Karve Road, Erandwane, Pune-4. 4.Balkrishna Purushottam Sanyasi, (Shimpi), Age 27 Years, Occ:Business, Residing at V/s. Hotel Peush, 42/5, Kasat Colony, Karve Road, Erandwane, Pune - 4. ...Respondents ...... Mr.N.R.Bubna for Petitioner. Mr.P.N.Karlekar for Respondents 1 & 2. ...... CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. CORAM: A.M.KHANWILKAR, J. : 2 : MARCH 24, 2009. MARCH 24, 2009. MARCH 24, 2009. JUDGMENT : JUDGMENT : JUDGMENT : 1. Heard Counsel for the parties. 2. This Writ Petition under Article 227 of the Constitution of India takes exception to the Judgment and Decree passed by 13th Additional District Judge, Pune dated 13th July 1991, whereby the Appeal preferred by the Petitioner/original Defendant No.5 has been dismissed and the decree for possession passed by the Trial Court on 31st July 1987 in Rent Act Suit No.1605 of 1982 has been confirmed. The Respondent Nos.1 and 2/Plaintiffs (landlords) instituted Suit for possession on the ground that the Defendant No.2 has acquired alternative suitable accommodation for residence for himself and his family. As a result whereof, he is liable to be evicted from the suit premises and since he has refused to hand over possession thereof inspite of notice given in that behalf. The Defendant No.2 filed written statement and : 3 : asserted that although the rent receipt would mention the name of the Defendant No.1 as the tenant, in fact, the premises were taken by him for himself and his family. The fact that the suit premises were taken on rent by the Defendant No.2 was categorically asserted by the Defendant No.2 himself. That stand was supported by the Defendant No.1. It is not in dispute that the Defendant No.1/wife of Defendant No.2-died during the pendency of the Suit. The Defendant No.3 is the son of Defendant Nos.1 and 2 and Defendant No.4 is mother-in-law of Defendant No.1 and mother of Defendant No.2, whereas, the Petitioner/Defendant No.5 is the sister-in-law of the original Defendant No.1 and is sister of Defendant No.2. Insofar as the Petitioner is concerned, in her written statement in Paragraph 12, she asserts thus: "12. On the contrary it is the say of this defendant that this defendant has been residing in the suit premises along with her brother def.No.2 right from the year 1958 and it was in fact the tenancy for the benefit of the family of defendant No.2 but the defendent No.1’s name only has been shown on the rent receipt for the sake of convenience." 3. In the present Petition, the Petitioner : 4 : has not questioned the correctness of the concurrent finding recorded by the two Courts below that the Defendant No.2 has acquired sufficient alternative accommodation for the purpose of his residence. What is argued before this Court is that even if the Defendant No.2 had acquired such suitable residential accommodation elsewhere, that cannot be the basis to evict the Petitioner/Defendant No.5 who was occupying the suit premises in her own rights and more so in absence of any finding that even Defendant No.5 has acquired suitable accommodation elsewhere for her residence. The argument though attractive, clearly overlooks the concurrent finding recorded by the two Courts below. In the first place, the case made out by the Defendant No.5 in the written statement is that she was residing in the suit premises along with her brother Defendant No.2 right from 1958. She has further admitted that in fact, the premises were taken on tenancy basis for the benefit of family of Defendant No.2 and that the Defendant No.2’s name was shown in the rent receipt only for the sake of convenience. : 5 : 4. In other words, the Defendant No.5/Petitioner herein contested the Suit for possession on clear assertion that it is the Defendant No.2, who was the tenant in the suit premises and not Defendant No.1. It is only due to fortuitous circumstances of death of Defendant No.1 during the pendency of the Suit, now the Petitioner/Defendant No.5 wants to contend that she would get equal right in the suit premises after the death of Defendant No.1 who was the real tenant. On the other hand, the two Courts below have found as of fact that after demise of Defendant No.1, the Plaintiff had recognised Defendant No.2 as the tenant in the suit premises. This finding is not assailed. Whereas, the Defendant No.2 was treated as tenant because of the natural relationship of Defendant No.1 and Defendant No.2 of husband and wife respectively. 5. Once again, to deal with the argument now canvassed on behalf of the Petitioner/ Defendant No.5, we will have to revert back to the stand taken in Paragraph 12 of the written statement which is reproduced earlier. After having taken : 6 : such a stand in the pleadings, it is not open to the Petitioner/Defendant No.5 to now contend that the Defendant No.2 was not the tenant. For, even according to the Petitioner, it is the Defendant No.2 who was always the tenant in the suit premises; and occupied the same in that capacity since 1958. If that fact is unquestionable, at the instance of Petitioner/Defendant No.5, it necessarily follows that the death of Defendant No.1 during the pendency of the Suit will not enure to the Petitioner/Defendant No.5 in any manner. It is the Defendant No.2 being tenant in the suit premises and having concurrently found so by the two Courts below that he has acquired alternative suitable accommodation, the Defendant No.5 being only part of his family would necessarily suffer the same consequence on account of decree of eviction against the Defendant No.2. It is not open to the Defendant No.5/Petitioner herein to resist the decree of eviction against the Defendant No.2 in respect of the suit premises which has been legitimately passed by the two Courts below on the basis of the stand taken by the parties in the pleadings and established in the evidence produced : 7 : before the Court. 6. Thus understood, the argument of the Petitioner though attractive that the Petitioner ought to be treated as family member of the Defendant No.1 and after the death of Defendant No.1 has naturally inherited the tenancy in terms of Section 5(11)(c) of the Act as it applied at the relevant time, will have to be stated to be rejected. No other contention has been raised before this Court. The Petition fails and the same will have to be dismissed. 7. According to the Respondents/landlords, even the Petitioner/Defendant No.5 had sufficient property owned and possessed in her own name which during the pendency of this Writ Petition has been disposed of and the Petitioner had received sale proceeds of Rs.76,14,000/- (Rupees Seventy-six Lakhs Fourteen Thousand). This stand is contested by the Petitioner by filing reply affidavit. However, it is not necessary to burden this Judgment with the said controversy in view of the confirmation of decree for eviction for the : 8 : aforesaid reasons. 8. Accordingly, the Writ Petition is dismissed with costs. 9. Insofar as Civil Application is concerned, the same is disposed of without examining the correctness of the stand taken by the Respondents 1 and 2/Applicants to the said Application. A.M.KHANWILKAR, J.