1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION WRIT PETITION NO.5334 OF 2009 Madhukar Bhiku Potekar ...Petitioner vs. Ramesh Jayantilal Shah (since deceased through L.Rs) and others ...Respondents Mr.Madhukar Bhiku Potekar in person appears Mr.P.B.Shah for the respondent CORAM :A.S.OKA,J. DATE : OCTOBER 6, 2009 P.C. 1 As the petitioner is appearing in person, after hearing his submissions for some time, this court made a query to the petitioner whether he wants to engage an Advocate, the petitioner appearing in person stated that he does not want to engage an Advocate. By this writ petition under Article 227 of the Constitution of India, the petitioner has challenged a decree of eviction against him. 2 The petitioner is the second defendant in a suit filed by the first respondent. The second respondent- company is the first defendant in the said suit. The dispute relates to the residential flat on the first floor admeasuring 470 sq. ft. more particularly described in paragraph 1 of the suit filed by the first respondent. The case of the first respondent is that the suit 2 premises was let out to the second respondent (first defendant) and the second respondent in turn has allotted the said flat to the petitioner for residential use as the petitioner was an employee of the first respondent. The case of the first respondent is that in view of section 3 (1) (b) of the Maharashtra Rent Control Act, 1999, the second respondent-company (tenant) has no protection of the said Act of 1999 as its paid up share capital exceeds Rs. 1 crore. According to the case of the first respondent, notice of termination of tenancy was issued to the second respondent and the petitioner and thereafter, a suit for eviction has been filed. The petitioner contested the suit by filing the written statement. The petitioner contended that he is in possession of the suit premises for last 30 years and he is protected by law of adverse possession. His case is that there is no landlord and tenant relationship between the first respondent-plaintiff and himself. The petitioner denied that he was an employee of the second respondent (first defendant). His case is that he is in adverse possession of the suit premises from the year 1971. The second respondent also contested the suit by filing a separate written statement. The parties adduced evidence. The trial court decreed the suit and passed a decree for possession against the petitioner and the second respondent by holding that the second respondent has no protection of the said Act of 1999. There were 3 separate appeals preferred by the second respondent and the petitioner. The appeals were heard together by the District Court. By a common Judgment dated 18th March 2009, the appeals have been dismissed. 3 The petitioner appearing in person submitted that his specific case is that he was not an employee of the second respondent-company. He pointed out that he had filed number of applications before the trial court for pointing out that he was not inducted by the second respondent and in fact, he was inducted in the suit premises by Mr.S.B.Desai, the Executive Director of M/s.Traub India Private Ltd which was a German company. He submitted that the petitioner is in possession of the of the suit premises from the year 1971 when the second respondent-company was not in existence. He submitted that he has perfected the title to the suit premises by adverse possession. When a query was made by the court as to whether he has produced any document to show that he was inducted by M/s.Traub India Private Ltd, he stated that he has not filed any such document as he was not called upon to do so. He submitted that as he has perfected his title by adverse possession, the decree for possession could not have been passed. The learned counsel for the first respondent supported the impugned Judgments and decrees. 4 4 I have carefully considered the submissions. It must be stated that it is not in dispute that the second respondent tenant is not protected by the said Act of 1999. 5 The suit notice by which the tenancy of the second respondent was terminated by the first respondent was addressed even to the petitioner. The petitioner has replied to the said notice through his Advocate. It is pertinent to note that in the said reply, the petitioner has not come out with the plea of adverse possession. It is also pertinent to note that in the said reply, the petitioner has not specifically come out with a case that the Executive Director of M/s.Traub India Private Ltd, has put him in possession of the suit premises. 6 The courts below have concurrently found on the basis of the evidence of the witness examined by the second respondent that the petitioner was an employee of the second respondent. As against this, the petitioner has not produced any documentary evidence to show that he was an employee of M/s.Traub India Private Ltd and that the Executive Director of the said company allotted the suit premises to him. Admittedly, no documentary evidence in that behalf has been produced by the petitioner. Therefore, the courts below have accepted the case of the 1st respondent that the 5 petitioner was inducted by the 2nd respondent. As far as plea of adverse possession is concerned, as stated earlier, the said plea was not raised in the suit notice. Apart from that, the perusal of the affidavit in lieu of examination in chief filed by the petitioner shows that except for casual reference to the plea of adverse possession in one of the paragraphs, he has not stated as to from what date he asserted hostile title to the knowledge of the first respondent-landlord. The learned counsel for the respondent pointed out the correspondence made by the petitioner with the Municipal Corporation in which as on 7th March 1997 the petitioner has admitted that the first respondent was his landlord. In the letter dated 7th March 2005 (page 129 of the petition) sent by the petitioner to the Ward Officer of the Municipal Corporation the petitioner himself has stated that the original plaintiff was the landlord and the present respondent nos. 1(a) to 1(c) are the heirs of the landlord. Therefore, even in the year 2007, the petitioner has not asserted hostile title. 7 In the circumstances, the courts below have accepted the case of the first respondent that being an officer of the second respondent-company which was the tenant, the petitioner was allowed to use the suit premises by the 2nd respondent. The second respondent has no protection of the said Act of 1999 and therefore, the petitioner has 6 no defence and he has miserably failed to prove the plea of adverse possession. 8 No case is made out for interference with the concurrent decrees of the courts below in this writ petition under Article 227 of the Constitution of India. Writ petition is rejected. Ad-interim order of status quo passed by this court on 12th June 2009 will continue to operate for a period of 12 weeks from today. JUDGE