1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE JURISDICTION WRIT PETITION NO. 1789 OF 1994 Vithalrao Bandoji Jadhav, ) since deceased by his heirs and ) legal representatives - ) 1A. Smt. Geeta Sumarsingh Gole, ) residing at Gole Building, Karnik Road, ) Kalyan, District – Thane. ) 1B. Dhanaji Vithalrao Jadhav, ) residing at Sector 6, T 6 Vashi, ) Taluka – Turbhe, District – Thane. ) 1C. Amar Vithalrao Jadhav, ) 401, Mangalwar Peth, Pune – 11. ) 1D. Mrs. Daya Jayasinghrao Nimbalkar, ) Kavate Mahankal, Tal. Jat, ) District – Sangli. ) 1E. Sunita Sudhirsen Sadekar-Pawar, ) Sukh Nivas, Madan Zampa Road, ) Baroda, Gujarat. ) 1F. Chhaya Baratrao Jagtap, ) Vidarbha Bhavan, 1st Floor, ) Flat No.3, Nagpur. ).. Petitioners Vs Ramprasad Motilal Khandelval, ) since deceased, through his legal heirs and ) representatives :- ) 1A) Smt. Rukminidevi Badrinarayan Nathini ) R/o. At :- Yashoniketan, ) 433/7/1, Saraswat Colony, ) Somwar Peth, Pune – 411 011. ) 1B) Sou. Lalita Bhavarilal Rajoria, ) 7/3, Vilson Garden, Pune – 411 001. ) 2 1C) Sou. Bhagwatidevi Ramkishor Loomer, ) New Apsara Society, Flat No.A/3, ) Narangibaug Road, Pune – 411 001. ).. Respondents -- Shri Vijay Patil for the Petitioners. Shri Avinash Avhad for Respondent Nos.1(A) to 1(C). -- CORAM : A.S.OKA, J. DATE : 13th January 2010. ORAL JUDGMENT: 1. Heard learned counsel appearing for the parties. 2. The Petitioners are the legal representatives of the Original Defendant. The Respondents are the legal representatives of the Original Plaintiff. 3. The Original Plaintiff filed a suit for eviction against the Original Defendant. In the Plaint, the suit property has been described in sub-paragraphs A and B of Paragraph 1. The property subject matter of Paragraph 1(A) consists of two rooms out of House No.401 on the ground floor. The property subject matter of Sub-paragraph 1(B) consists of two rooms on the rear side of the Ground Floor. In Paragraph 2 of the Plaint, it is stated that the said two parts of the property have been let out by the Plaintiff to the Defendant on monthly rent of Rs.5.30 and Rs.6/-, 3 respectively. It is stated that the rent mentioned therein is exclusive of education cess. The material allegation in the Plaint is that in respect of the suit premises mentioned in Clause (A) of Paragraph 1 of the Plaint, one wall has been demolished by the Defendant and with an intention to carry out permanent construction, excavation to the extent of 3 ft. has been carried out in the foundation of the said wall. It is stated that the construction material such as sand, cement and tiles has been brought by the Defendant. A specific allegation is that the said acts of the Defendant amount to a nuisance and annoyance. An allegation in the plaint is that the Defendant caused the Municipal Corporation to issue a notice to the Plaintiff calling upon him to carry out repairs to the said wall, failing which permission would be granted to the Defendant to carry out repairs. It is alleged that the Defendant was intending to carry on illegal permanent construction. It is alleged that the Municipal Corporation was likely to grant permission to the Defendant to carry out construction. It is alleged that a part of the property of the Plaintiff was likely to be acquired for road widening. 4. The Defendant filed a Written Statement. It is contended by the Defendant that he has not demolished the wall. It was contended that the suit premises are in dilapidated condition and there was leakage to the ceiling of the suit premises which has not been repaired by the Plaintiff. It was alleged that the Defendant called upon the Plaintiff from time to time to carry out repairs but the Plaintiff has not carried out the repairs. It is alleged by the Defendant that as the Plaintiff failed to carry out repairs, the wall 4 collapsed. The Defendant has stated that since the repairs were not carried out, he had to file a complaint with the Municipal Corporation. A Reliance is placed on the notice calling upon the Plaintiff to carry out repairs. 4. The trial Court framed various issues. The issues framed by the trial Court and the findings recorded against them read thus:- Issues findings 1. Does plaintiff prove that the Defendant has damaged the suit property by pulling down the southern wall and thereby committed act contrary to the provisions of Sec. 108(0) of the T.P. Act ? Yes 2. Does plaintiff prove that the Defendant is faulty of conduct which is nuisance and annoyance as alleged ? No. 3. Does plaintiff prove that the Defendant is about to carry out the new construction without the written permission of the Plaintiff ? Yes. 5 5. The trial Court proceeded to pass a decree for possession. The decree for possession has been passed under Section 13(1)(a) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as “the said Act”). The allegations is that the Defendant has committed acts contrary to the provisions of Clause (o) of Section 108 of the Transfer of Property Act, 1882 (hereinafter referred to as “the said Act of 1882”). An appeal was preferred by the Defendant. The only point framed by the Appellate Court was in terms of Issue No.1 framed by the Trial Court. The Appellate Court proceeded to dismiss the said Appeal. 6. Learned counsel appearing for the Petitioner submitted that the averments made in Paragraphs 1 and 2 of the Plaint show that there were two distinct and separate tenancies created in favour of the Defendant in respect of two distinct premises. Therefore, the suit was not maintainable. He submitted that in any case, assuming without admitting that a ground under Section 13(1) (a) of the said Act was made out, a decree could have been passed only in respect of one premises. He invited my attention to the findings of the Appellate Court. He submitted that the Appellate Court has disbelieved the version of the Plaintiff and his witness that the Defendant had pulled down the wall. He pointed out that after discarding the evidence of the Plaintiff on this aspect, a finding was recorded that there was a strong possibility that the Defendant pulled down the wall with a view to construct 6 a new wall, as the Defendant had sought permission from the Municipal Corporation for construction of a new wall. He submitted that the said finding is based on the surmises. 7. Learned counsel appearing for the legal representatives of the Respondent submitted that considering the evidence on record, on preponderance of probability, the Courts below have concurrently found that it was the Defendant who had demolished the wall. He submitted that admittedly a permission of the Plaintiff was not obtained by the Defendant. He submitted that the evidence of the Defendant is very clear from the fact that an application was made by the Defendant to the Municipal Corporation for grant of permission to demolish the wall and to construct a new wall. He submitted that no interference is called for in a writ jurisdiction with the concurrent findings of fact. 8. I have given careful consideration to the submissions. Before dealing with the first submission made by learned counsel appearing for the Petitioner, it will be necessary to consider the main controversy whether the Plaintiff had proved that the Defendant has committed an act contrary to the Clause (o) of Section 108 of the said Act of 1882. If the averments made in the Plaint and in particular paragraph 3 are seen, the allegation is that the action of the Defendant of demolishing a wall and carrying out digging in the foundation of the wall caused nuisance and annoyance. There is no specific pleading that the acts of the Defendants are destructive or 7 permanently injurious to the property. The allegation is that the work of demolition has been carried out as the Defendant intended to carry out a construction of permanent nature and for that purpose, he has brought the construction material. Though there is no specific pleading of commission of acts contrary to Clause (0) of Section 108 of the said Act of 1882, an issue was framed on the said aspect and the parties have adduced the evidence, and therefore, the finding recorded by the Courts below will have to be considered on merits. 9. The Plaintiff examined himself and a witness Rameshwar Laxminarayan Khandelwal. The Appellate Court had discarded the evidence of the Plaintiff on the aspect of demolition of the wall by the Defendant on the ground that admittedly, the Plaintiff had no personal knowledge. The second witness Ramprasad Khandelwal was examined by the Plaintiff who stated that the Defendant demolished one wall near the latrine and has dug pit at the place where the wall was in existence. A specific finding has been recorded by the Appellate Court in Paragraph 9 of the Judgment that reliance cannot be placed on the statement made by the said witness. Thus, the Appellate Court had discarded the oral evidence of the Plaintiff and his witness in support of the allegation that the Defendant had demolished the wall. After recording of the aforesaid findings, the learned Additional District Judge proceeded to record the following findings:- “Xerox copy of commencement certificate produced on record shows that the defendant’s application was 8 received by the Municipal Corporation on 26.2.1985. Exh. 67 which is the copy of the Map furnished to Municipal Corporation for permission shows that old wall was to be demolished and new all was to be constructed and accordingly the Corporation has granted the permission on 18.3.1985. It means this proposal for pulling down the old wall and constructing a new wall at its place was forwarded or submitted to the Corporation on or before 26.2.1985 and thereafter this disputed wall fell down or pulled down on 28.2.85. In the circumstances there is a strong probability that the defendant pulled down the wall with a view to construct the new wall as he has prepared necessary Map and sought the permission of the Corporation.” 10. In the Written Statement, the Defendant had denied the allegation that he had demolished the wall. His case was that the wall was in dilapidated condition, and it collapsed as the Plaintiff did not carry out repairs. Therefore, the burden was on the Plaintiff to prove that the Defendant has demolished the wall. The Plaintiff had no personal knowledge that the Defendant had demolished the wall. Therefore, a so called eye witness was examined by the Plaintiff. His evidence has been discarded by the Appellate Court. Thus, the Plaintiff examined a witness specifically to prove that the Defendant demolished the wall and the evidence of the said witness has been disbelieved. An inference that the Defendant must have demolished the wall was drawn only because the Defendant had applied for permission to construct a new wall and had brought the construction materials. There is no finding that in the application made by the Defendant for grant of permission, the Defendant came out with a case that he has demolished the wall. Admittedly, the 9 Defendant was in possession of the suit premises, and therefore, if he applied for permission to reconstruct the wall, only on this basis, one cannot jump to a conclusion that the Defendant himself had demolished the wall. In fact, in Paragraph 9 of the judgment, the Appellate Court has recorded a categorical finding that the property is in dilapidated condition. There is another finding recorded by the Appellate Court that the Municipal Corporation had called upon the Plaintiff to carry out repairs and the Plaintiff was prosecuted for non-compliance by the Municipal Corporation. Thus, the inference drawn by the Courts below and in particular, the Appellate Court that in all probability the Defendant must have pulled down the wall is totally contrary to the record and the same is perverse. Such a conclusion on the basis of the evidence on record could not have been drawn by the Appellate Court. Therefore, the finding recorded by the Courts below that it was the defendant who demolished the wall has to be set aside. 11. There is another aspect of the matter. There is a finding recorded by the Appellate Court that the suit premises were in dilapidated condition and that the Corporation had called upon the Plaintiff to carry out repairs to the suit premises. Even assuming that the Appellate Court held that the Defendant demolished the wall, by no stretch of imagination, the said act on the part of the Defendant can be said to be a destructive or permanently injurious to the suit premises inasmuch as the local authority had found that that the structure was in a dilapidated condition. Therefore, Clause (o) of Section 108 of the said Act of 1882 is not attracted. Hence the 10 decree for permission passed by the Court below will have to be set aside. 12. In view of the aforesaid discussion, it is not necessary to deal with the first submission made by the learned counsel appearing for the Petitioner. Hence, I passed the following order. The impugned judgment and decrees are quashed and set aside and the suit filed by the Respondent stands dismissed. There will be no order as to costs. Rule is made absolute accordingly. (A.S.OKA,J)