- 1 - 326.327 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE CIVIL JURISDICTION CIVIL REVISION APPLICATION NO. 326 OF 2010 Shekhar Narayan Shetty .. Applicant . vs Madhavlal Narayanlal Pittie & ors..Respondents with CIVIL REVISION APPLICATION NO. 327 OF 2010 Shekhar Narayan Shetty .. Applicant vs Madhavlal Narayanlal Pittie & ors .. Respondents .............. Mr.Vijay Thorat Sr.Advocate with Mr.Kishor Jain i.b Mr.Tushar Goradia for Applicant in both theRevision Applications Mr.Mustafa Doctor with Mr.Nimay Dave and Ms D.A.Chhapgar i.b M/s D.J.Kamdin & Co for Respondent No.in both Revision Applications CORAM: A.S.Oka, J DATE: 8th October, 2010 P.C. 1. Heard learned senior counsel appearing for the Revision applicants. Since facts of both the Revision applications are identical, a reference is made to the facts of the case in Revision Application No.326 of 2010. - 2 - 326.327 2. The revision applicant is the 8th defendant in a suit filed by the 1st respondent. The case made out by the 1st respondent is that one Madanlal, the predecessor of the 1st to 7th defendants was the tenant in respect of suit premises who was residing in the suit premises along with his family. It is alleged that 1st to 7th defendants parted with the possession of the suit premises in favour of the applicant who is the 8th respondent. The decree was sought by the plaintiff-1st respondent on the ground that the 1st to 7th defendant have acquired suitable residential accommodation and that they have unlawfully sublet suit premises to the Revision Applicant. 3. The trial Court framed the issues on the ground of illegal subletting and acquisition of suitable residence. The trial court answered the ground of illegal sub-letting in favour of the 1st respondent-plaintiff and negatived the ground of acquisition of suitable residence. An appeal was preferred by the present Revision applicant before the Appeal bench of the Court of Small Causes, Mumbai. The contention raised in the appeal was that when the - 3 - 326.327 suit was filed, the 1st respondent was aware that the Revision applicant was in possession of the suit premises. It was contended that the 1st respondent-plaintiff has not examined himself and therefore, an adverse inference be drawn. The appeal bench recorded a finding on the issue of acquisition of suitable residence in favour of the 1st respondent by reversing the finding of the trial Court on this aspect. The finding of the trial Court on the ground of illegal sub-letting has been confirmed by the Appeal Bench. 4. The learned senior counsel appearing for the applicant submitted that the 1st respondent did not step into the witness box and his C.A was examined. He submitted that it is the specific case made out by the applicant that the applicant took over possession of the suit property from the original defendant no.4 after obtaining consent of the 1st respondent. He pointed out that the 1st respondent has not stepped into the witness box to deny the case made out by the applicant as regards the consent. The learned Senior counsel - 4 - 326.327 submitted that there was no cross objection preferred by the 1st respondent and therefore, the finding of the trial court on the issue of acquisition of suitable residence could not have been set aside in appeal. 5. I have given careful consideration to the submissions. The case made out by the applicant in his evidence is that in the first week of February 1997, the original 4th defendant informed him that 1st to 7th defendants were surrendering the suit premises and that the 1st respondent-plaintiff told him to take possession of the suit premises from the 4th defendant and to contact him later on for finally transferring the suit premises in his name. According to the case of the applicant, he obtained possession of the suit premises from the 4th defendant in February 1997 and thereafter he contacted that the 1st respondent who demanded huge amount as a premium. The case of the applicant is that he declined to pay premium. This case has been considered by both the Courts below. The Courts below have observed that there is no evidence of surrender of tenancy by the 1st to 7th - 5 - 326.327 defendants. The appellate Court has noted the case made out by the applicant that he paid monthly rent in respect of the suit premises to the 1st respondent for the period from February 1997 to May 1997. However, the applicant could not produce a single rent receipt. The Courts have tested the case made out by the applicant that from June, 1997 the 1st respondent declined to accept rent. The Courts below and especially the appellate court has noted that there was no evidence adduced by the applicant to show that any attempt was made by him to send the rent to the 1st respondent-plaintiff by any other available mode. Though the case made out by the applicant was that the 1st respondent had agreed to transfer the premises in his name, the applicant did not take any step for enforcing the alleged promise. Moreover, the appellate Court held that though the applicant made out a case in his evidence that he came into possession of the suit premises in February 1997, this fact has not been pleaded in his written statement. 6. Admittedly, the applicant who is not the tenant has been in possession of the suit premises. The burden was - 6 - 326.327 on him to prove in what capacity he was occupying the suit premises. The concurrent finding of fact recorded by the Courts below on the basis of appreciation of oral evidence on record is that the applicant failed to prove surrender of tenancy by 1st to 7th defendants and that the allegation that the 1st respondent-plaintiff permitted the applicant to take possession from the 4th defendant has not been proved. Admittedly, the applicant is not related to 1st to 7th defendants and he is a stranger to them. 7. The appellate Court has also considered one more circumstance. The appellate court has noted that the 1st respondent filed a suit for declaration and injunction in the year 1997 against defendant nos. 1 to 7. In reply to the notice for injunction, the 1st defendant filed a reply on 22.7.1997 accepting that the said defendants had parted with possession. However, the name of the person to whom possession was parted with was not mentioned. Though the the 1st respondent filed a notice for giving better particulars, the 1st to 7th defendants did not disclose the name. Therefore,the appellate court - 7 - 326.327 disbelieved the case of the applicant that he was placed in possession in February 1997. Considering the aforesaid aspects and considering the fact that the 1st respondent examined his constituted attorney, the Courts have rightly declined to draw adverse inference against the 1st respondent. 8. Considering the failure of the applicant to discharge the burden on him, the Appellate court has drawn an inference that the applicant is a unlawful sub-tenant. The concurrent findings of fact on the ground of illegal subletting are supported by evidence on record which cannot be interfered with in revisional jurisdiction. Therefore, it is not necessary to deal with other ground of eviction. 9. Hence, there is no merit in the Revision Applications and the same are rejected with no order as to costs. Learned senior counsel prays that the decree for possession be stayed for a period of 12 weeks from today. Accordingly, it is directed that the decree for possession shall not be executed for a period of 12 weeks subject to - 8 - 326.327 condition that the applicant shall not create third party rights and will not part with possession of the suit premises. A.S.Oka, J