1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.420 OF 1991. Shaikh Mariyambi Abbas, Age 47 years, Occ,Labourer, R/o J.J.Galli, At & Post Ahmednagar, Dist. Ahmednagar. ... Petitioner. Versus Narayan Govind Shedge (Deceased through his legal representatives Smt.Laxmibai Narayan Shedge, deceased through L.R. Avinash Narayan Shedge, Age major, Occ.Business, R/o J.J.Galli, At & Post Ahmednagar, Dist. Ahmednagar. ... Respondent. ... Mr.A.B.Gatne, advocate for the petitioner. Mr.V.S.Bedre, advocate for the Respondent. ... CORAM : V.R.KINGAONKAR,J. Date : 05.01.2010. ORAL JUDGMENT 1. By this petition, the petitioner 2 challenges judgment and order dated 30.7.1990, rendered by learned 4th Additional District Judge, Ahmednagar in an appeal (RCA No.154/1988) confirming eviction decree rendered in suit (RCS No.796/1979). 2. The petitioner is admittedly tenant in respect of a single room of 15x10 ft. which is part of a house property bearing Municipal No. 1190, situated at Ahmednagar. The deceased respondent was the landlord of the suit tenement. The agreed rent is of Rs.11/- p.m. The deceased Respondent filed suit for eviction of the petitioner on two grounds, namely, that she is willful defaulter and failed to pay the rent for period between 1.1.1970 to 3l.7.1979 and that the suit tenement was required for personal and bonafide use. The trial Court and the first appellate Court discarded the Respondent's case regarding alleged willful defaults. The trial Court, however, came to the conclusion that the suit tenement was required by the landlord for the purpose of accommodation needed by his real brother. The trial Court, therefore, decreed the 3 suit. The first appellate Court confirmed the decree. 3. Short question involved in the petition is as to whether the ejectment is legal and proper within the parameters of Section 13(1)(g) of the Bombay Rents, Hotel and Lodging Houses Rates Control Act, 1947 (For short, the Bombay Rent Act). 4. Heard learned counsel for the parties. 5. The deceased Respondent claimed eviction decree for the reason that his brother by name Kisanrao Kondaji was in need of the suit tenement. On perusal of his pleadings, it is manifest that he alleged that his brother was residing adjacent to the suit tenement and was in need of the same for accommodation of his other family members. It was pleaded that there were 11 members in the family of the brother by name Kisan Kondaji and, therefore, the suit tenement was required. There is absolutely no whisper in the pleadings of the deceased Respondent 4 (plaintiff) to show that he and his brothers were members of the joint Hindu family. The pleadings of the deceased Respondent do not show, even remotely, that the suit tenement was held by him for benefit of the members of the joint Hindu family, including his brothers. In other words, it was not pleaded that the deceased Respondent (plaintiff) was holding the premises as a trustee of the said brother. The only contention was that the brother was residing separately and adjacent to the suit tenement and, therefore, the premises were required because the brother's family was of large size consisting of 11 members. So, what appears from the pleadings of the deceased plaintiff is that he desired to capitalise the fact that his brother was having large family and, therefore, was in need of more space. 6. There is no difficulty in assuming that the bonafide requirement is not restricted to the personal use of the landlord and can be also regarded as his requirement to accommodate the members of the family. The question is whether brother of the deceased Respondent could be 5 regarded as member of the family. The requirement of anyone, who is not the member of the family also can be looked into, subject to the condition that the beneficiary must have a right of occupation enforceable if it is denied. The test is to examine whether brother of the deceased Respondent could have a legal right to seek the suit tenement for his own use if the deceased Respondent had refused to part with the premises. The expression "person for whose benefit the premises are held" as used in Section 13(1)(g) of the Bombay Rent Act will have to be pragmatically interpreted. The deceased Respondent never alleged that the suit tenement was held by him for the benefit of his said brother. 7. True, it has come on record that there are many members in the family of said Kisan S/o Kondaji i.e. brother of deceased Respondent. The requirement of said Kisan S/o Kondaji was never spelt out by him. The deceased Respondent (plaintiff) did not step into the witness box nor said Kisan entered the witness box in order to demonstrate his genuine requirement for the suit 6 tenement and his status as a member of the Joint Hindu family. It was never contended by the deceased Respondent that the house property is commonly owned by himself and his brother. It has come on record that the three (3) brothers were residing separately. It is also not demonstrated that said Kisan had legally enforceable right to claim the suit tenement if it would have fallen vacant and such right was denied by the deceased Respondent (plaintiff). 8. The separated brother can not be regarded as a member of the family unless it is specifically pleaded that though for convenience he was residing separately, yet, the brothers had common interest in the property. The bonafide requirement of someone else, who is connected with the landlord only due to blood relation, can not be regarded as the requirement of the landlord himself. The relevant sub-clause (g) of Section 13(1) of the Bombay Rent Act, is plain and clear. It reads as follows : "13. (1) Notwithstanding anything 7 contained in this Act [but subject to [the provisions of sections 15 and 15A], a landlord shall be entitled to recover possession of any premises if the Court is satisfied - (a) x x x x (b) x x x x (c) x x x x (d) x x x x (e) x x x x (f) x x x x (g) that the premises are reasonably and bona fide required by the landlord for occupation by himself or by any person for whose benefit the premises are held" 9. The landlord himself did not require the suit tenement. The trial Court and the first appellate Court simply assumed that the landlord and his brother were members of the same family. The first appellate Court observed : "It is seen from the evidence on record 8 that both the brothers are joint. Simply brother of the plaintiff is staying adjacent to the suit premises. The appellant in his evidence admitted that functions i.e. marriage etc. of the plaintiff and his brother are celebrated jointly. She has no document to show that Kisan and Narayan are living separate in all respect. Under the circumstances, it can not be said that family of the brother of the plaintiff is separated in all respect from the plaintiff." The above observations of the first appellate Court indicate irrational and improper approach to the fact situation of the present case. First, there is hardly any evidence to show that both the brothers were joint nor it was so pleaded by the deceased Respondent (plaintiff). In absence of particular pleadings, the poor tenant, who is an illiterate woman could have no reason to explain whether the family was joint or the brothers had separated. The mere fact that 9 on occasions like marriages, the brothers had joint celebration is also of no consequence. It is of common knowledge that at the time of marriages the joint celebration is undertaken by the brothers though they are not members of the joint family and even cousins also participate in the celebrations of the marriages etc. That can not be the test of jointness of the brothers. The Courts below seems to have wrongly placed the burden of proof on the petitioner (tenant) to prove that the deceased Respondent and his brothers were separate in respect of the properties. 10. The first appellate Court failed to see that the landlord and said Kisan S/o Kondaji remained outside the witness box and there was a solitary statement of PW 1 Avinash who is the nephew of the deceased Respondent. He claimed to be holder of a General Power of Attorney for and on behalf of the deceased Respondent (plaintiff). He is son of the third brother i.e. Damodhar. He did not specify whether brothers are joint in respect of the properties. A Single Bench of 10 this Court in "Nawab Sardar Meer Sultan Saheb Alim Khan Saheb Vs. R.R.Gibson" 1969 Mh.L.J.701, held that the expression "person for whose benefit the premises are held" as used in Section 13(1)(g) would only mean that such person must have the right to occupy the suit premises, which right the person can enforce if denied. The view taken by both the Courts below seems to be on basis of surmise that the requirement of said Kisan S/o Kondaji was the requirement of the landlord. This is the incorrect and perverse finding recorded by the Courts below. 11. For the foregoing reasons, I have no hesitation in holding that the impugned judgments are unsustainable. Hence, the petition is allowed. The impugned judgments are set aside. The eviction suit stands dismissed. No costs. (V.R.KINGAONKAR,J.) asp/office/wp42091