1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.523 OF 1994 Balu Laxman Sonar (since deceased by his L.R.) 1A)Smt.Tarabai Balu Sonar 1B)Raju Shankar Shinde ...Petitioners vs. Kasambhai Mannubhai Bagwan (since deceased by legal heirs) 1 Sharfuddin Kasambhai Bagwan 2 Shamsuddin Kasambhai Bagwan 3 Kadarbhai Kasambhai Bagwan 4 Isak Kasambhai Bagwan 5 Mohamad Kasambhai Bagwan 6 Sau Gulshan Mahboob Suleman 7 Sau Zalima Isak Bagwan 8 Smt.Salima Gulam Bagwan 9 Sau Najama Rafique Bagwan 10 Jamila Namidbhai Bagwan ...Respondents Mr.P.K.Hushing for the petitioners None for the respondents CORAM :A.S.OKA,J. DATE : JANUARY 12, 2010 JUDGMENT : 1 The petitioners are the legal representatives of the original defendant-tenant and the respondents are the legal representatives of the original plaintiff-landlord. A suit was filed by the original plaintiff against one Balu Laxman Sonar, the original defendant. The suit relates to a residential premises. The suit was filed on the grounds of bonafide requirement and acquisition of suitable residence. The allegation which is material for the purpose of this Petition is that the original defendant-tenant Balu had purchased a plot of land 35 X 2 35 in the name of his wife Tarabai and that he has constructed rooms on the said open plot. The allegation is that the said Balu and his wife were residing in the newly constructed house and the suit premises have been kept closed for to and one and half years. The trial Court dismissed the suit. An appeal was preferred by the original plaintiff. The Appellate Court framed the points for determination on the ground of bonafide requirement and acquisition of suitable residence. There was no point for determination framed by the Appellate Court on the issue of non user. The Appellate Court passed a decree under section 13 (1) (l) of the Bombay Rents, Hotel and Lodging House Rates (Control)Act,1947 (hereinafter referred to as the said Act). 2 The learned counsel for the petitioners pointed out that during the pendency of the suit, the said Balu expired and his wife Smt.Tarabai Shankar Shinde @ Tarabai Balu Sonar was brought on record. He pointed out that the said Tarabai had three sons Narayan, Raju and Ashok from her first husband. He invited my attention to the finding recorded by the Appellate Court that Narayan a son of Tarabai from her first marriage has acquired a suitable accommodation. He submitted that there is no finding recorded that the Balu or the said Tarabai had acquired a suitable accommodation. He placed reliance on the decision of the Apex Court in case of B.R.Mehta Vs. Smt.Atma Devi and others (A.I.R. 1987 SC 2220). None appears for the legal representatives of the original respondent. The office remark shows that respondents have been duly served with the notice. 3 I have given careful consideration to the submissions. The case made out by the original plaintiff before the trial Court was that Balu had acquired a plot 3 of land of 35 X 35 in the name of his wife Tarabai and has constructed rooms on the said plot. The trial Court disbelieved the case of the original plaintiff on the ground that income of Balu was only Rs.100/- to Rs.150/- per month and therefore, it was not possible to accept that Balu acquired the plot and constructed the house. The trial Court observed that the son of Tarabai viz. Narayan must have acquired the suit property and constructed six rooms over the suit property. 4 Now turning to the finding of the Appellate Court on the aspect of acquisition of the suitable residence, a reference will have to be made to paragraph 14 of the Judgment. The Appellate Court has referred to the oral evidence of the witnesses and in particular the evidence of one Prakash who was a Clerk of Daund Municipal Council who deposed that the house in question stands in the name of Narayan and Tarabai. After considering the evidence on record, the Appellate Court has recorded the finding as under : 15...The finding of the trial Court that Balu Sonar was earning just Rs.150/- per month and was not in a position to make construction is inconsistent with the evidence on record. The trial Court lost sight of the fact that the first husband of Tarabai was Shankar Shinde. Even after she joined Balu, she continued to reside with her sons from earlier husband. So also her son purchased the property jointly in his and in her names. This creates a probability that Shankar Shinde must have left some property or there is probility that Narayan is treating his mother as a member of his family and also dependent on him. Thus, 4 the son purchasing the property even if with his own funds; but showing his mother as joint owner; so also the other evidence, suggesting the joint residence, creates a strong probability that the mother has share or at least, as a dependent on the son has right to reside in the house and for which even the son is willing to accommodate her.... 5 Thus, the finding recorded by the Appellate Court shows that the Appellate Court did not accept the case of the original plaintiff that the acquisition has been made by Balu. The Appellate Court further observed that Narayan, a son of Tarabai born from her first marriage must have purchased the property in the joint name of himself and his mother Tarabai. In fact, the Appellate Court observed that there is possibility that the first husband of Tarabai must have left some property or there is possibility that Narayan is treating his mother Tarabai as a member of his family. The learned Judge thereafter observed that even if the said Narayan purchased the property out of his own funds, he has shown the same in the name of joint name of his mother. The Court has observed that there is a probability that Narayan was treating his mother as a member of his family. The finding of the Appellate Court is that there is evidence suggesting the joint residence which creates a strong possibility that the said Tarabai has share or at least as a dependent on her son has right to reside in the said house and for which even the son is willing to accommodate her. Thus, the finding is that in all probability, Narayan must have made acquisition of the property jointly with his mother Tarabai. The allegation in the plaint is that the said Balu has made acquisition. There is no finding that Balu or Tarabai had made 5 acquisition. The finding is that Tarabai s son Narayan born from her first husband must have acquired the suit property and Tarabai has a right to reside in the said property. There is no finding recorded that on the date of institution of the suit, the said Balu had right to reside in the house constructed by Narayan. Obviously, the said finding could not have been recorded as Narayan is the step son of Balu. Thus, accepting the finding of the Appellate Court as it is, it is apparent that there is no finding that the original defendant Balu had made acquisition. There is no clear finding that Balu s wife Tarabai had made the acquisition. The finding is that Tarabai might have been treated by her son Narayan as a member of his family and therefore, there is right available to Tarabai to reside in the suit property. Thus, taking the findings as it is, the original plaintiff has failed to establish the acquisition of suitable residence by the original defendant-tenant Balu. In the circumstances, the Appellate Court could not have passed a decree on the ground of acquisition of suitable residence under section 13(1) (l) of the said Act. Moreover, there is no decree passed on the ground of non- user. Hence, the Petition must succeed. 6 Hence, I pass the following order : i)Rule is made absolute in terms of prayer clause (b). There will be no order as to costs. JUDGE