( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 430 OF 1993 Sudhakar Shankar Bhavsar, R/o 280, Bhavani Peth, Jalgaon. PETITIONER VERSUS 1. Mrs. Shantabai w/o Chagan Patil, R/o 280, Bhawani Peth, Jalgaon. 2. Savitabai Rajaram Patil, R/o 64, Baliram Peth, Jalgaon. 3. Ashok Rajaram Marathe, R/o as above. 4. Vasant Rajaram Marathe, R/o as above. 5. Sitabai Shankar Bhavsar (Since deceased, Her L.Rs. are already on record as respondents No. 6, 7 and 8) 6. Madhukar Shankar Bhavsar, R/o 280, Bhavani Peth, Jalgaon. 7. Prabhakar Shankar Bhavsar, R/o as above. 8. Sau Shaila Ramesh Bhavsar, R/o as above. RESPONDENTS .... Mr. V.V. Deshmukh, advocate holding for Mr. V.J. Dixit, Senior Counsel, for the petitioner. Mr. Pradip R. Patil, advocate for the respondents No. 1 to 4. .... [CORAM : V.R. KINGAONKAR, J.] [DATE : 19th July, 2010] ORAL JUDGEMENT : 1. By this petition, the petitioner impugns judgement and order rendered by learned Additional District Judge, ( 2 ) Jalgaon, in Civil Appeal No. 327/1988. By the impugned judgement, the appeal came to be allowed and the decree rendered by the trial Court was set aside. 2. The petitioner is original plaintiff No. 3. He alongwith other four (4) plaintiffs, who may be referred to as “landlords”, filed suit for eviction and recovery of possession in respect of one room tenament. According to them, the single room tenament was let out to one Rajaram Marathe, since deceased, who was predecessor of the respondents No. 1 to 4. They asserted that the tenancy in respect of the suit room commenced on 1st day of English calender month. The agreed rent was Rs. 7.50 p. p.m. According to them, said Rajaram Marathe died somewhere in the month of January, 1985 and thereafter, the respondent No. 1 shifted her residence to another premises which she had purchased on 31st August, 1982. She alongwith the other three (3) respondents i.e. original defendants No. 1 to 4 started residing in the said house bearing Municipal No. 64, situated in Baliram Peth, Jalgaon. Thereafter, they had locked the suit tenament. The suit tenament was not being used for residential purpose after January, 1985. They did not pay rent to the landlords. Hence, by quit notice dated 30th April, ( 3 ) 1986, their tenancy was terminated and they were called upon to deliver the possession of the tenament. They did not comply with the quit notice. Consequently they filed suit for eviction and recovery of rent arrears to the tune of Rs. 225/-. The respondents No. 1 to 4 resisted the suit by filing their written statement (Exh-13). They contended that the suit tenament (room No. 11) is a small tenament of 10 feet x 10 feet and, therefore, the defendant No. 1 had purchased a house property bearing Municipal Council No. 64 situated in Baliram Peth area. They submitted that in that newly acquired house property, the defendants No. 2 and 3 were separately residing. They contended that the suit tenament came into the possession of the defendant No. 4 after the death of original tenant, namely, Rajaram Marathe, because she was residing with said Rajaram being his daughter and because she has been estranged by her husband. It was denied that the suit tenament was locked and kept unused. It was also denied that the rent was not paid to the landlord. On basis of material placed on record, the trial Court decreed the suit. The first Appellate Court, however, reversed findings of the trial Court and held that the pleadings of the petitioner and other plaintiffs did not sufficiently prove that the tenants had acquired suitable alternative accommodation and on such ground, eviction decree ( 4 ) could be rendered. The first Appellate Court also held that the suit tenament was not kept unused nor the tenants had committed willful default in payment of the rent. 3. Heard learned counsel for the parties. 4. The pleadings of the petitioner and other co- plaintiffs do not show that the tenants acquired alternative accommodation for their residence. What was alleged was that the tenants had shifted residence to the house property which was purchased by the defendant No. 1 on 31st August, 1982, after the death of Rajaram Marathe and since then, the suit tenant was kept locked. There is no difficulty in holding that house property was acquired in the name of original defendant No. 1 as per the sale-deed dated 31st August, 1982. Obviously, it is required to be examined whether the suit tenament was kept unused after the death of Rajaram Marathe. The respondents No. 1 to 4 contended that the respondent No. 1 purchased a house property bearing Municipal No. 64 in 1982 because the suit tenament was found much adequate to accommodate the family members. It was specifically alleged that the defendant No. 4 Shantabai used to reside with deceased Rajaram in the suit tenament since eighteen (18) ( 5 ) years because she was estranged by her husband. It is in this background that the evidence tendered by the parties ought to have been scanned by the learned Judge of the trial Court. 5. There appears oath against oath. In support of the suit claim, PW1 Sudhakar (petitioner) deposed that after death of Rajaram Marathe, the defendant No.1 Savitabai purchased house property in Baliram Peth locality and has locked the suit tenament since 1985. He admits that the rent receipt (Exh-31) is in respect of the suit tenament. He further admits that the rent receipt (Exh-32) was issued by his brother and is signed by the defendant No. 4 Shantabai. It appears that the defendant No. 4 Shantabai used to pay the rent to the petitioner or his brothers. He admit that there is paucity of tenanted premises in Jalgaon. He clearly admits that deceased Rajaram breathed his last in the suit tenament. Thus it is amply clear that Rajaram resided in the suit tenament during his lifetime. The testimony of the defendant No. 4 – Shantabai reveals that due to bickerings between herself and her husband, she started residing with her father – Rajaram Marathe somewhere in 1963 and since then, resided with him continuously. She deposed that she was residing with Rajaram Marathe when he died in the suit tenament in or ( 6 ) about 1985. She corroborated the rent receipts (Exh-32, Exh-33, Exh-34 and Exh-36). It is her version that she has no concern with the acquired house property situated in Baliram Peth area. One cannot be oblivious of the fact that due to her peculiar status as estranged woman, defendant No. 4 Shantabai was required to reside separately from other members of the family and being a member of the family, residing with the original tenant – Rajaram Marathe, at time of his death, she acquired the status of tenant. The petitioner failed to prove that the suit tenament was locked and kept unused prior to the filing of the eviction suit. Under the circumstances, it is difficult to say that the impugned judgement and order is perverse. The findings of the first Appellate Court are based on material which was available and as such, the same cannot be regarded as perverse or arbitrary. 6. In the result, the petition is destitute of substance and as such, is dismissed. No costs. [V.R. KINGAONKAR] JUDGE NPJ/wp430-93 ( 7 )