WP. 382-92 - 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL WRIT PETITION No. 382 OF 1992 Rajaram Vithal Shamgaonkar (since deceased, represented through LRs. ) Anr. ... Petitioners Vs. Jayatilal Popatlal Shah & Ors. ... Respondents *** Mr. Amit Borkar, for the Petitioners. Mr. Nitin P. Deshpande, for Respondent Nos. 1 & 2. Mr. R. B. Paranjape i/b M. M. Vaidya, for Respondent Nos. 4A to 4C. Mrs. Indrayani M. Koparkar for Respondent Nos. 3(a)(iii). *** CORAM : V. M. KANADE, J. DATE : AUGUST 8, 2011 PC: 1. Heard the learned counsel appearing on behalf of the petitioners and the learned counsel appearing on behalf of the respondent Nos. 3(a)(iii) and respondent Nos. 4A to 4C. Petitioners are the original defendant Nos. 1 & 2; and respondent Nos. 1 and 2 are the original plaintiff Nos. 1 and 2. 2. Brief facts are as under- . Petitioner is a landlord of the suit premises. According to him, a rent note was executed in favour of “Popatlal Panachand” shop through owner Chimanlal P. Shah on 12-10-1935. It is submitted that WP. 382-92 - 2 - a suit for eviction was filed against said Chimanlal P. Shah, which was decreed by the trial court. The said decree was confirmed by the lower appellate court as well as the High Court. Thereafter, suit was filed by the heirs of Popatlal Panchand in which it was alleged that decree which was obtained by the landlord, was obtained by fraud and was, therefore, not binding on the plaintiffs and for a declaration that they are tenants in respect of the suit premises. The trial court decreed the suit. The lower appellate court confirmed the said judgment and decree. Being aggrieved by the said judgment and order passed by the lower courts, the petitioner has filed this petition under Art. 227 of the Constitution of India. It is firstly submitted that the second suit was filed fraudulently after decree was passed against Chimanlal in the first suit and it was confirmed by the High Court by an order dated 20th November, 1980. After the said judgment and order was passed by the High Court, present suit was filed in 1981. It is submitted that both the courts below had committed an error of law in holding that respondents herein are tenants of the suit premises. It was submitted that both the courts had erred in holding that the rent receipts which are produced on record showed that rent receipt was issued in favour of “Popatlal Panchand” and therefore, new tenancy was created. It WP. 382-92 - 3 - was submitted that the Apex Court and this Court in number of cases has observed that such a plea of surrender of tenancy could not be accepted and merely because the rent receipts were issued in the different name, the first tenancy could not be established. Reliance was placed on the judgment of the Apex Court in the case of -Ram Saran, Appellant Vs. Pyare Lal & Anr., Respondents [ (1966) 11 Supreme Court Cases 728]. 3. When a query was made as to whether the learned counsel wanted to make any submission regarding maintainability of the suit, the learned counsel submitted that he does not wish to make submission and submitted that if that submission is allowed, there would be third round of litigation. 4. The learned counsel has taken me through the impugned judgment and order passed by the trial court as well as the lower appellate court. In my view, the submission made by the learned counsel for the petitioner cannot be accepted since both the courts below recorded concurrent finding of fact that respondents had established that they are tenant in respect of the suit premises on the basis of evidence which was adduced. Both the courts below have also relied on the admission given by the defendant which has been WP. 382-92 - 4 - mentioned in the order passed by the lower appellate court. This being the position, it will not be possible for this court while exercising limited jurisdiction of this Court under Art. 227 of the Constitution of India to interfere with the finding of fact recorded by both the courts below and substitute its own finding by setting aside the said order after re-appreciating the evidence on record. In this view of the matter, no case is made out by the petitioner for interference with the impugned order. 5. So far as judgment on which on which reliance is placed by the learned counsel for the petitioner in the case of Ram Saran (supra), the ratio of the said judgment will not apply to the facts of the present case. In the said case, suit was filed for eviction on the ground of subletting and in that context the observations have been made by the learned Apex Court regarding surrender of tenancy. The facts of the present case are entirely different. It is case of the respondent/ plaintiff that decree was obtained fraudulently without making them as party defendants in the first suit and therefore, their case that they are tenants of the suit premises has been accepted by both the courts below. The civil writ petition is, therefore, dismissed. [ V. M. KANADE, J.]