1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5157 OF 1993 Aminabi Shaikh Chand .. Petitioner versus Sukha Sakharam Jadhav .. Respondent Mr.Jaydeep Deo h/f Mrs.Suhasini Mutalik for the petitioner. Mr.Satyajeet Mirajkar h/f Mr.K.Y.Mundlik for respondent Nos.1A to 1E. CORAM : A.S.OKA, J. DATE : 1st February 2010. JUDGMENT: . Heard learned counsel appearing for the petitioner. The petitioner is the landlady and the original respondent is the tenant. The tenancy relates to two rooms more particularly described in the plaint. A suit for possession was filed by the petitioner against the original respondent. The suit was filed on the ground of breach of Clause (o) of Section 108 of the Transfer of Property Act, 1882. Another ground of eviction was construction of permanent nature. The third ground was of nuisance. The fourth ground was of bonafide requirement and the last ground was of acquisition of suitable residence by the original respondent- tenant in the form of a shed admeasuring 15 ft X 20 ft in Indira Nagar Zopadpatti. The trial Court held that ground of bonafide requirement was established. However, on the issue of comparative hardship , the trial Court recorded a finding in favour of the respondent-tenant. An appeal was preferred by the petitioner which has been dismissed by the impugned judgment and order. All grounds 2 have been negatived by the Appellate Court including the ground of bonafide requirement. 2. The learned counsel appearing for the petitioner submitted that there was evidence on record to show that the original respondent-tenant had acquired a premises admeasuring 15 ft X 20 ft in Indira Nagar Zopadpatti and therefore the burden was on the original respondent to prove that the said premises were not suitable for residential accommodation. He submitted that the family of the petitioner consists of 14 members and family of the petitioner is in possession of only four rooms out of which two are on the ground floor and two are on the first floor. He submitted that the trial Court accepted the plea of bonafide requirement of the petitioner and there was no reason for the Appellate Court to disturb the said finding. He submitted that the finding on the issue of comparative hardship ought to have been in favour of the petitioner as the respondent had acquired a suitable accommodation in the form of a structure in Indira Nagar Zopadpatti. He, therefore, submitted that this is a fit case for passing a decree on the ground of acquisition of suitable residence and bonafide requirement. 3. The learned counsel appearing for the respondents supported the impugned judgments and decrees. He invited my attention to an affidavit dealing with affidavit dated 13th November 2006 filed by one Raziya Shaikh on behalf of the petitioner. He submitted that in view of the fact that a new building has been constructed by the petitioner, the alleged requirement has been satisfied and no interference is called for. 3 4. I have given careful consideration to the submissions. The first question to be decided is whether the ground of acquisition of suitable residence has been established. There are concurrent findings recorded by the Courts below against the petitioner on this aspect. The petitioner examined her husband as a witness in which he stated that the respondent was possessing a shed in Indira Nagar Zopadpatti admeasuring 15 ft X 20 ft and there is electricity and water supply to the said premises where the respondent was residing. In the cross-examination the witness admitted that there is no documentary proof to show that the respondent has acquired residence in Indira Nagar Zopadpatti. The petitioner examined one Kamrunisa Akbar for proving that the respondent was in possession of a shed admeasuring 20 ft X 15 ft. She claimed that she was running a grocery shop very close to the premises allegedly acquired by the respondent. In the cross-examination she admitted that she was not having any documentary evidence to show that she was running a shop. The original respondent stepped into witness box. He denied to have acquired a premises in Indira Nagar Zopadpatti. He stated that there were 21 members of his family. He stated that he was working as a labourer with ammunition factory and he was drawing pension of Rs.350/- per month. Certain photographs were shown to the respondent in his cross-examination. He denied the photographs. He denied the suggestion that he was possessing a shed admeasuring 10 ft X 15 ft in Indira Nagar Zopadpatti. The finding of both the Courts below and in particular the Appellate Court is that no documentary evidence was produced by the petitioner. 4 The Appellate Court noted that the income of the respondent was only Rs.350/- per month and therefore it was not possible for him to secure an alternate accommodation. In the circumstances, the Courts below were right in coming to the conclusion that the ground for acquisition of suitable accommodation was not established in as much as there was no evidence to show the acquisition of a premises by the respondent. 5. As far as ground of hardship is concerned, the Courts below have noted that according to the case of the petitioner there were 14 members in her family and the case of the respondent was that there were 21 members in his family. Perusal of the cross-examination of the respondent by the advocate for the petitioner shows that there is no challenge to the statement in the examination-in- chief that his family consists of 21 persons. As against this the Appellate Court noted that the petitioner and her family members were residing in House No.317 at Khadki and were also possessing House No.316. 6. Thus, acquisition of suitable residence by the respondent is not proved. What is brought on record is that there are 21 members in the family of the respondent. As against this the family of the petitioner has 14 members and it is found that the petitioner has two houses. Therefore, both the Courts below were justified in recording a finding on the issue of comparative hardship in favour of the respondent-tenant and there is no reason to find fault with that finding. 5 7. As far as issue of comparative hardship is concerned, there are concurrent findings recorded by the Courts below. Therefore, no interference is called for with the said findings In the circumstances, it is obvious that even assuming that bonafide requirement was established, the Courts below could not have passed a decree for eviction. 8. The respondents are relying upon affidavit dated 20th September 2007. In the said affidavit it is stated that the petitioner has constructed a building having area of 3120 sq ft in March/April 2007. Perusal of the affidavit shows that name of the affiant is not disclosed and no one has signed the said affidavit. The affidavit appears to have been affirmed before one Mr.M.N.Pansare, Notary, Government of India (Registration No.3192). The affidavit has been signed by him though it is not signed by the deponent. The said affidavit could not have been notarised by the said notary and could not have been filed. Hence, what is stated in the affidavit cannot be taken into consideration. 9. However for the reasons recorded earlier, no case for interference is made. Writ Petition is rejected. Rule is discharged. No orders as to costs. (A.S.OKA,J)