1 cra410-411 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION CIVIL REVISION APPLICATION NO.410 OF 2010 J.S.Vengurlekar (deleted since deceased) 1-A Dilip Jaywant Vengurlekar 1-B Mrs.Madhuri J. Parkar @ Lata J. Vengurlekar 1-C Mrs.Meena Mahesh Ramsinghe 1-D Mrs.Anjali Anit Vengurlekar 1-E Mrs.Shalini Jayant Vengurlekar ...Applicants vs. S.S.Vengurlekar (since deceased through his heirs and legal representatives) 1-A Smt.Kishori S. Vengurlekar (since deceased deleted) 1-B Deepak S. Vengurlekar 1-C Madhvi S. Vengurlekar 1-D Pradip S. Vengurlekar 2-A Yashwant C.Mangaldas(deleted) 2-B Ravi H. Mangaldas ...Respondents ALONG WITH CIVIL REVISION APPLICATION NO.411 OF 2010 Mr.J.S.Vengurlekar (deleted since deceased) 1-A Mrs.Shalini Jayant Vengurlekar (deleted) 1-B Dilip J. Vengurlekar 1-C Mrs.Madhuri J. Parkar @ Lata J. Vengurlekar 1-D Mrs.Meena Mahesh Ramsinghe 1-E Mrs.Anjali Ajit Vengurlekar ...Applicants vs. Shri S.S.Vengurlekar (since deceased) through his heirs and legal representatives i) Smt.Kishori S. Vengurlekar (deleted since deceased) ii)Deepak S. Vengurlekar iii)Pradeep S. Vengurlekar iv) Jyoti Shah (deleted since deleted) 2-A Yashwant C. Mangaldas (deleted) 2-B Ravi H. Mangaldas ...Respondents Mr.Arun Palekar for the applicants Mr.Sameer Bhalekar for the respondent nos.1B, 1C and 1D. 2 cra410-411 CORAM :A.S.OKA,J. DATE :DECEMBER 23,2010 P.C.: 1 On 14th December 2010, submissions of the learned counsel for the revision applicants were heard. However, order was not passed to enable the parties to again explore the possibility of settlement. On 21st December 2010 revision applications were placed on board for passing orders. When the revision applications were called out, one of the applicants made a submission that he wants to produce some documents. Though such request could not have been entertained at that stage, order was not passed on the revision applications and the revision applications were adjourned till today. As of today, there is no application made by the applicants for filing any additional evidence. Hence, I proceed to pass the order as submissions were fully heard on 14th December 2010. 2 These two civil revision applications can be disposed of by passing the common order as they arise out of common Judgment delivered by the trial Court in two cross suits and common Judgment delivered by the Appeal Bench of Court of Small Causes. 3 The present applicants filed RAD Suit no.5923 of 1980 against the first and second respondent. The dispute relates to flat no.1 on the second floor of the building known as Manik Chambers which is more particularly described in paragraph 1 of the plaint. According to the case of the applicants, Smt.Shantabai was the tenant in respect of the said Flat No.1 (hereinafter referred to as the suit premises). The said Shantabai was the mother of the Predecessor of the applicants (J.S.Vengurlekar ) and 3 cra410-411 the Predecessor of respondent nos.1a to 1D (S.S.Vengurlekar). It is alleged that the said Shantabai along with her two sons (J.S.Vengurlekar and S.S.Vengurlekar) were residing in the suit premises and the said Shantabai was paying rent. It is stated that electric meter was taken by the said Shantabai in the name of the predecessor of respondent nos.1a to 1D i.e in the name of late S.S.Vengurlekar. The case made out in the plaint by the applicant is that later on the said Shantabai transferred the rent bill in respect of the suit premises in the name of one B.B.Khanwilkar who was her cousin. It is alleged that the said Khanwilkar never occupied the suit premises till his death. It stated that the said Shantabai died in the year 1959 and thereafter, said J.S.Vengurlekar and S.S.Vengurlekar along with their sister continued to occupy the suit premises. It is alleged that three of them were paying rent to the landlord by contributing in equal proportion and even the electricity bill was paid in the same manner. It is stated that the daughter of the said Shantabai died on 15th January 1978 and thereafter, the said J.S.Vengurlekar and S.S.Vengurlekar continued to occupy the suit premises. It is stated that the said J.S.Vengurlear (predecessor of the applicants) used to pay his share of rent to the S.S.Vengurlkear being his elder brother who used to pay the rent to the landlord. 4 The basic contention in the plaint in the declaratory suit of the applicants is that the original plaintiff J.S.Vengurlekar was residing in the suit premises along with his mother Shantabai at the time of her death and therefore, he is a deemed tenant along with S.S.Vengurlekar, the predecessor of the respondent nos. 1a to 1D in view of section 5(11) (c) of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 4 cra410-411 1947. 5 Reliance has been placed on the correspondence between the parties. It is contended that notwithstanding the objection raised by the predecessor of the applicants, the landlord transferred the rent receipt in the name of S.S.Vengurlekar (the predecessor of respondent nos. 1A to 1D) by taking some kind of an indemnity bond from him. The declaration sought is of joint tenancy and there are consequential prayers directing the second defendant (landlord) to issue rent receipts in the joint names. 6 Late S.S.Vengurlekar, the predecessor of the respondent nos.1A to 1D filed a L.E. Suit no.196 of 1981 against the predecessor of the applicants under section 41 of the Presidency Small Causes Court Act, 1882. In the said suit, a case made out by the predecessor of the respondent nos.1A to 1D is that he was occupying the suit premises from the year 1942 as a lawful sub-tenant of said B.B.Khanwilkar who was the tenant in respect of the suit premises. It is stated that he had allowed the said J.S.Vengurlkar, the predecessor of the applicants being his elder brother to occupy one room in the suit premises as a licensee. It is contended that the predecessor of the applicants was gratuitous licensee in respect of the said room and therefore, a decree of eviction was sought. 7 Rival suits were contested by the rival parties by filing the written statements raising contentions 5 cra410-411 which are raised in the plaints respectively filed by them. 8 Both the Courts below have held that late S.S.Vengurlekar, the predecessor of respondent nos. 1A to 1D was the tenant in respect of the suit premises and that the predecessor of the applicants was a gratuitous licensee in respect of one room in the suit premises. In view of this finding, the trial Court dismissed the declaratory suit filed by the applicants and decreed the suit for eviction filed by the respondent nos.1A to 1D and passed a decree for possession in respect of one room. The Appeals preferred by the revision applicants have been dismissed by the Appeal Bench of the Court of Small Causes. 9 The learned counsel for the applicants submitted that there is no evidence on record to show that the said B.B.Khanwilkar was the tenant in respect of the suit premises and that the said S.S.Vengurlekar was inducted by him as a sub-tenant. The learned counsel submitted that even going by the stand taken by the said S.S.Vengurlekar, the entire family is occupying the suit premises at least from 1942. His submission is that even though some documents like electricity bills may be standing in the name of S.S.Vengurlekar, the fact remains that entire family was occupying the suit premises from the year 1942 which shows that the said S.S.Vengurlekar cannot claim exclusive tenancy rights. His submission is that there is no evidence adduced by the said S.S.Vengurlekar to show that he is exclusively 6 cra410-411 entitled to tenancy rights. The learned counsel for the respondent nos.1A to 1D supported the impugned Judgments and Decrees. 10 I have carefully considered the submissions. Perusal of the Judgments of both the Courts below show that the oral and documentary evidence has been extensively considered by the Courts. The trial Court has held that admitted position as reflected from the evidence of Shri J.S.Vengurlekar is that the electricity bill in respect of the suit premises was standing in the name of Shri S.S.Vengurlekar. The learned trial Judge made extensive reference to the oral evidence adduced by the parties and in particular oral evidence of applicant no.1A. The learned trial Judge found that the applicant no.1A admitted that except one room in the suit premises other rooms were in possession of S.S.Vengurlekar. He also admitted that he has no evidence to show that the rent bill was ever standing in the name of the mother Shantabai. He also admitted that he has no evidence to show that rent in respect of the suit premises was ever contributed by J.S.Vengurlekar and his sister. He also admitted that rent was not paid to the second defendant landlord by J.S.Vengurlekar but it was paid by S.S.Vengurlekar. 11 The trial Court also considered the documents produced by the applicants and found that the said documents relate to only one room in respect of which a decree for possession was sought in the suit for eviction. 7 cra410-411 12 As far as Appeal Bench of Court of Small Causes is concerned, apart from expressing general agreement with the findings recorded by the learned trial Judge, it was held that there is no dispute that though Mr.B.B.Khanwilkar was not residing in the suit premises, rent receipts were issued in his name till his death. There is a finding of fact recorded that there is no iota of evidence to show that mother Shantabai was the tenant and that she had transferred the rent bill in the name of said B.B.Khanwilkar. The Appellate court found that after death of said B.B.Khanwilkar, the said S.S.Vengurlekar got the said rent receipts transferred in his name. The Appellate court has also observed that if Shantabai was really the tenant, after her demise in the year 1959, the said J.S.Vengurlekar could have asserted his right as tenant but that was not done. 13 Both the Courts have observed that there was no document placed on record by the applicants to show that the said Shantabai was the original tenant in respect of the suit premises. The learned counsel for the applicants could not point out any document on record to show that the mother Shantabai was the original tenant in respect of the suit premises. That was the very foundation of the case of the applicants. On the other hand, admittedly, the rent receipt stands in the name of the Shri S.S.Vengurlekar. It must be stated here as noted in the earlier part of the Order, that after the revision applications were adjourned for passing orders, one of the applicants appeared in person and 8 cra410-411 made a request for adjournment on the ground that he wanted to produce rent receipts in the name of Shantabai. After granting time of couple of days, the applicants have not moved any application. This substantiates the correctness of the findings recorded by the Courts below that there was absolutely no evidence to show that mother Shantabai was the tenant. The learned counsel for the applicants has placed on record a copy of the writing executed in April 1979 by and between S.S.Vengurlekar and the landlord by which the landlord accepted the said S.S.Vengurlekar as the monthly tenant. The said document does not contain any recital that the said Shantabai was the tenant. The said document records that the said B.B.Khanwilkar was the tenant who had sublet the said premises to Shri S.S.Vengurlekar (the predecessor of the respondent nos.1(A) to 1(D). Theconcurrent findings of fact recorded by the Courts below are that the applicants failed to prove that Shantabai was the tenant and that for last several years rent receipts stand in the name of the said S.S.Vengurlekar. Thus, the case made out in suit for eviction that the said J.S.Vengurlekar was a gratuitous licensee in respect of a room in the suit premises was rightly accepted by both the Courts. It is not possible to interfere in the revisional jurisdiction with the impugned Judgmentsby which declaratory suit filed by the applicants was dismissed and the suit for eviction filed by the respondent nos.1A to 1D was decreed. 14 No case for interference is made out. Revision 9 cra410-411 applications are accordingly rejected. 15 On the prayer made by the learned counsel for the applicants, it is directed that decree for possession shall not be executed for a period of 12 weeks from today subject to condition that the applicants will not create any third party rights and will not part with possession. JUDGE