1 Cra-944.10 Ash IN THE HIGH COURT OF JUDICTURE AT BOMBAY CIVIL APPELLATE SIDE JURISDICTION CIVIL REVISION APPLICATION NO. 944 OF 2010 Smt. Indumati Banderao Deshpande. .. Applicant Vs Shantaram Bhalchandra Dhonde & Others. .. Respondents -- Ms Sharmila V. Deshmukh for the Applicant. Shri G.S. Godbole i/by Shri Apollo Mogre for Respondent Nos.2 to 7. -- CORAM : A.S. OKA, J DATE : 9th DECEMBER, 2010 P.C. : Heard learned counsel appearing for the Applicant and the learned counsel appearing for the Respondent Nos.2 to 7. The Respondent Nos.1 to 8 are the original Plaintiffs. Respondent Nos.1 and 8 are the deceased. The Applicant is one of the legal representatives of the original Tenant. 2. The Plaintiffs filed a suit for eviction in respect of the suit premises which is a flat consisting of two rooms and kitchen admeasuring 550 sq.ft. more particularly described in the Plaint. The suit was filed on the ground of bonafide requirement and acquisition of suitable residence. The suit was contested by the legal representatives of the Original Defendant. The Trial Court dismissed the Suit. An appeal was preferred by the Respondents. The Appellate Court held that the Plaintiffs have 2 Cra-944.10 established bonafide need of the married daughter of the Plaintiff No.4 and her family. The issue of comparative hardship was decided against the Revision Applicant. Hence, a decree for possession was passed on the ground of bonafide need. 3. The learned Counsel appearing for the Applicant invited the attention of the Court to the findings recorded by the Trial Court. Learned counsel pointed out that the Trial Court for the reasons recorded held that the requirement pleaded by the Plaintiffs has not been established. The learned counsel submitted that by no stretch of imagination, the requirement of a married daughter could have been accepted by the Appellate Court. The learned counsel invited attention of the Court to the various findings recorded by the Appellate Court. She pointed out that the original need as pleaded in the Plaint was held as not established and the need of the married daughter which was pleaded by way of amendment in the year 2007 has been accepted. She submitted that though there is no other evidence, on the basis of the evidence of the father-in- law of the married daughter, the need of the married daughter could not have been accepted. Learned counsel submitted that the married daughter and her husband are earning large income and are residing in a flat. On the other hand, the present age of the Applicant is 86 years and her sons are not supporting her She invited attention of the Court to the finding recorded on the ground of comparative hardship. The learned counsel submitted that there is no finding recorded that either the Applicant has other 3 Cra-944.10 accommodation available or that she has a capacity to acquire any other accommodation. She stated that the finding recorded by the Appellate Court that the sons of the Applicant can accommodate the Applicant is totally erroneous. 4. Learned counsel appearing for the original Plaintiffs supported the impugned judgment and decree. On the instructions of the original Plaintiffs, he stated that to enable the Applicant to find out a suitable accommodation, the Plaintiffs will not execute a decree for a period of three years from today, if the same is confirmed by this Court. He stated that though the need of Plaintiffs is a pressing need, this statement is made only with a view to give an opportunity to 86 years old applicant to acquire some other accommodation. 5. I have given careful consideration to the submissions. It is true that the need of the married daughter has been pleaded by amending the Plaint in the year 2007. The Appellate Court has considered the evidence adduced in that behalf including the fact that the Plaintiff No.4’s daughter is earning income by working as a Finance Manager of a company. The case made out by the Plaintiffs was that after her marriage, the daughter started residing with her in-laws and she is not being properly treated by her in-laws. In the evidence it is stated that the in-laws are not highly educated and they are not happy with the fact that their daughter-in- law has to stay away from the house for long hours on account of her 4 Cra-944.10 employment. The married daughter has been examined who deposed that her in-laws are creating lot of tension and they are insisting on her giving up the job. Perusal of the finding recorded by the Appellate Court shows that there is nothing brought on record to indicate that the daughter has a residential accommodation of her own available with her as a matter of right. The Appellate Court found that the daughter and her husband were residing with their child in a two bedroom flat having area of 700 sq.feet with the in-laws of the daughter. The said flat is in a building owned by the father-in-law and his brothers. Apart from this fact, the Appellate Court considered the rights of the married daughter on the basis of the 2005 Amendment to the Hindu Succession Act, 1956. 6. The Appellate Court has also dealt with the argument of the Applicant that there were two rooms available in the same building for accommodating the married daughter. The Appellate Court observed that the 3rd Plaintiff, who is a Medical Practitioner, was utilising the rooms for dispensary. The Appellate Court also observed that there is no documentary evidence to show that the 3rd Plaintiff was using the said two rooms for dispensary. It must be noted here that the need pleaded of the daughter is of a self-contained flat and even assuming that the two rooms were available on the ground floor of the building, one cannot jump to the conclusion that the same are sufficient to satisfy the need as pleaded in the Plaint. There is nothing wrong if the landlord feels that his married daughter should be accommodated in his own premises. In the present case, 5 Cra-944.10 it is not the mere desire, but the need is held as established inasmuch as the daughter does not have any premises which she can independently occupy as a matter of right along with her husband. Suffice it to say that the finding of fact recorded by the Appellate Court as regards the bonafide need is based on the appreciation of the oral and documentary evidence on record which cannot be interfered with in the revisional jurisdiction. 7. One of the contentions raised by the Applicant was that the finding on the ground of hardship is perverse inasmuch as the Appellate Court has observed that the Applicant can stay with her sons in their flat. The Appellate Court observed that though the Applicant cannot stay with her sons as owner but she can stay in the flat with her children as their mother. To some extent, the learned counsel appearing for the Applicant is justified in saying that the finding of the Appellate Court on the issue of comparative hardship is not happily worded. What has been recorded by the Appellate Court is that the Applicant’s sons are having their own accommodation and at the age of 86 years, the Applicant can stay with her sons. As recorded earlier, the Plaintiffs without prejudice to their contention regarding bonafide need, have stated that to enable the Applicant to search other suitable accommodation, the decree will not be executed for a period of three years from today. This takes care of a limited grievance made by the learned Counsel appearing for the Applicant on the issue of comparative hardship. Therefore, the finding on the issue of comparative hardship need not be disturbed. If the decree is not executed 6 Cra-944.10 for a period of three years, that will be more than sufficient time for the Applicant to make some arrangement for securing some other accommodation. 8. Hence I pass the following order. (a) The Revision Application is rejected with no orders as to costs. (b) In view of the statement made by the learned Counsel appearing for the Plaintiffs on instructions of the Plaintiffs, the decree for possession shall not be executed till 9th December, 2013 subject to the condition that the Applicant will not create any third party rights and will not part with possession and subject to further condition that the Applicant will deposit with the Trial Court compensation equivalent to the rent upto date and will keep on depositing the same till she vacates the suit premises. (c) Civil Application No.516 of 2010 does not survive and disposed of accordingly. JUDGE