- 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION No. 3489 OF 1992 Purshottamdas Trimbak Kumbhare ) Age 70 years, Occu.- Business, ) Residing at No. 1363, Shukrawar Peth, ) New 760 Gurvar Peth, Pune-2. ) ... Petitioner Vs. Maruti Govind Dhankavade (since ) deceased, represented through legal ) Representative -Madhav Maruti Dhankavde, Residing at Rajendra Sahakari Gruhnirman ) Sanstha, Dhankavadi, Pune 411 043. ... ... Respondent *** Mr. R. S. Apte, Sr. advocate with Ashutosh Gole, for the Petitioner. Mr. Vijay Killedar, for the Respondent. *** CORAM : A. S. OKA, J. DATE : JULY 31, 2009. ORAL JUDGMENT 1. I have heard the submissions of the learned counsel appearing for both the parties. This is a petition filed under Article 227 of the Constitution of India. The petitioner tenant has - 2 - challenged the decree of eviction, passed by the appellate Court against him. The suit was filed by the respondent landlord claiming possession of the suit premises, more particularly described in the plaint. The suit premises are house property at Pune. Decree was sought on various grounds, including ground of default, bona fide requirement, acquisition of suitable residence, etc. The Trial Court dismissed the suit. In appeal, the District Court has passed a decree on the ground of acquisition of suitable residence. The averments made by the respondent in the plaint is that petitioner has acquired a plot in a Society at Dhanakawadi -Pune and the petitioner has carried out construction of a residential house thereon. In the written-statement the case of the petitioner was of denial. 2. The learned counsel appearing for the petitioner submitted that there is evidence on record to show that a plot at Dhanakawadi was acquired by the petitioner’s son and after obtaining a loan from his employer which is a nationalized bank, has constructed a residential house. The learned counsel for the petitioner submitted that there is absolutely no material on record to show that the acquisition of the plot is by the petitioner. He submitted that the house thereon is owned by the petitioner’s son and that the petitioner has no share in the said property. He pointed out that the learned District Judge has shifted the burden on the petitioner to prove that he has not acquired the property in the name of his son. He submitted that the petitioner was under no obligation to prove this aspect and the entire burden was on the - 3 - respondent/landlord. He submitted that in the plaint no case is made out though the plot at Dhankawadi stands in the name of petitioner’s son. 3. The learned counsel for the respondent supported the impugned judgment and decree. He submitted that the petitioner has adduced no evidence to show that his son had sufficient income to acquire a plot and to carry out construction of house thereon. He submitted that no evidence was adduced by the petitioner to show that his son had obtained a loan from the bank for the purposes of carrying out construction of a house on the plot. He, therefore, submitted that the inference drawn by the appellate Court that even the petitioner has an interest in the property standing in the name of his son is justified by the material on record and therefore, no interference is called for in the findings of fact recorded by the appellate Court. He also pointed out that the case of the petitioner was of mere denial and he has not come out with a case that the acquisition was by his son. 4. I have given careful consideration to the submissions. In the plaint a bald assertion is made that the petitioner has acquired a plot at Dhankawadi and has carried out construction of house thereon which is suitable to him for occupation. To that there is a mere denial in the written-statement. The respondent stepped into the witness box. In the evidence the respondent came out with a different case that the petitioner has acquired a plot in the name of his son. He stated that the petitioner has built a - 4 - premises for residence on the said property. Thus, he made a departure from the case made out in the pleading by coming with a case in his evidence that there is acquisition of plot by the petitioner in the name his son. The second witness examined by the respondent is the Secretary of the Hill Point Co-operative Housing Society Ltd., Dhankavadi. The said witness examined by the petitioner stated that the petitioner’s son Shrikant is a member of the Society and in the year 1975 a plot was sold to him at the price of Rs.5,000/-. He stated that the construction has been started on the said plot in February 1989 by the petitioner’s son and the construction has been completed upto slab level. This material has been brought on record by the witness examined by the respondent landlord himself. 5. The petitioner stepped into witness box. In his cross- examination, a suggestion was given to him that he had made a construction on plot acquired by him. He denied correctness of the suggestion and stated that the plot belongs to his son who has purchased it for his own use and the construction is being carried thereon for his own use. In the cross-examination he admitted that his son was still joint with him. He stated that his son was born in 1950 and has taken education upto M. Com. He stated that his son was in the service of Central Bank of India. He stated that his son along with daughter-in-law and grand son were residing with him. He stated that construction on the plot acquired by his son was in progress. He stated that work of plastering was in progress. 6. The petitioner examined his son. He stated that he - 5 - joined the employment of the bank in the year 1971 and he purchased a plot in the year 1975 for consideration of Rs.4,000/-. In the cross- examination he stated that he had spent a sum of Rs. 80,000/- for completing the construction and an amount of Rs. 25,000/- was required. He admitted that family expenses of the joint family are incurred jointly and he was not having any balance in his bank. The petitioner has examined an employee of Gram Panchayat who produced the property register maintained by the Gram Panchayat. The petitioner also examined one Ashok Shah, manager of the Central Bank of India who deposed that the bank had given loan of Rs.1,10,000/- to the petitioner’s son for construction of house. He produced relevant documents regarding loan, including the extract of loan account. There were two documents produced by the bank witness. One was an extract of loan account which shows that housing loan was granted in favour of petitioner’s son. The loan was granted in March 1988 as evidenced by the said documents. 7. Thus, in the plaint a simple case was made out by the respondent that the petitioner has acquired a plot and has constructed a house thereon. The suit was filed by the respondent in the year 1984. At the time of recording of evidence, he came out with the case that the petitioner has acquired a suitable plot in the name of his son and has constructed a house thereof. However, second witness examined by the respondent also is the secretary of the Society stated that in 1975, a plot was allotted to petitioner’s son for a consideration of Rs.5,000/-. The said witness examined - 6 - by the respondent further states that the construction started in February 1989 which was upto level of slab. Thus, when the suit was filed there was no construction commenced on the plot standing in the name of petitioner’s son. The petitioner’s son was examined who deposed that he is in the employment of the Bank since 1971 and he acquired the plot in the year 1975. There is evidence on record to show that a housing loan was sanctioned to the petitioner’s son in March 1988. Surprisingly in cross- examination of the petitioner’s son not even a suggestion was given that his father had paid the consideration for acquiring a the plot. 8. The finding recorded by the learned District Judge is three fold; (i) the petitioner’s son continued to be member of his family; (ii) the petitioner was having interest in the property acquired by his son; and (iii) that the petitioner has not come out with a case that he is not having any interest in the property acquired by his son. 9. Assuming that the respondent was entitled to come out with a new case in the trial Court that the acquisition was by the petitioner in the name of his son, this case has not been accepted by the Appellate Court. The appellate Court has not discarded the case made out by the petitioner’s son that he had taken housing loan of Rs.1,10,000/-. The petitioner’s son secured employment in 1971 and even going by the version of second witness examined by the petitioner, the construction was started by his son in February 1989. There is absolutely no basis for the - 7 - inference that the petitioner has an interest in the property acquired by the son. In fact that is not at all the case made out by the respondent. Thus, the findings recorded by the learned District Judge and inferences drawn are completely contrary to the evidence on record and the said findings and inferences could not have been drawn on the basis of evidence on record. 10. The petitioner and his son may be residing jointly. For passing a decree of eviction on the ground of suitable residence what is required to establish is that the petitioner/tenant is entitled to occupy the said house as a matter of right. This fact has not been established by the respondent. Hence, I pass the following order. ORDER (i) Rule is made absolute in terms of prayer Clause (a). (ii) There will be no order as to costs. Sd/- [ A. S. OKA, J.]