1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1002 OF 1995 Shaikh Ahmadbaksha Shaikh Karimbaksha (since deceased) through his legal heirs: Mrs.Mariambai Mohamadbaksha & Ors. .. Petitioners Versus Madhukar Krishnaji Dengle, (since deceased) through his legal heirs: Mrs.Shakuntala M.Dengle & Ors. .. Respondents Mr.A.M.Joshi with Mr.A.M.Rayrikar for the petitioners. Mr.A.Y.Sakhare, Sr. Counsel i/by Mrs.Lalita Panchakshri for respondent Nos.5 to 8. CORAM : A.S.OKA, J. DATE : 26th August 2009. ORAL JUDGMENT: . The submissions of the learned counsel appearing for the parites were heard on the earlier date. It will be necessary to briefly refer to the facts of the case. The petitioners are the defendants in a suit filed by the 1st to 4th respondents. The 5th to 8th respondents are the purchasers of the suit property under the Sale Deed dated 07th April 2000. 2 2. For the sake of convenience, the parties are hereinafter referred to with reference to their status before the trial Court and the 5th to 8th respondents herein are hereinafter referred to as the successors of the plaintiffs. The suit No.1335 of 1978 (which is the subject matter of this petition) was filed by the plaintiffs for recovery of possession of the suit premises more particularly described in paragraph 1 of the plaint. The description of the suit property reads thus: “ The plaintiffs abovenamed beg to state as under: 1. One Room 18’ X 14’ and open space in front of this room with Munjoba Temple and Pimpal Tree, (2) adjacent room shed 19’ X 14’ (3) open space in front of this shed 14’ X 75’ and (4) shed 26’ X 14’ (i.e. All the area of C.T.S.No. 325, except front side facing north and admeasuring 30’ X 14’).” 3. It must be stated here that the plaintiffs filed another suit bearing No.1328 of 1978 against the brother of the 1st defendant herein and others. The name of the said brother is Shaikh Mohammadbaksh Shaikh Karim Baksh. The said suit related to another portion of city survey No.325 admeasuring 30 ft X 14 ft together with shed thereon. 4. The present suit i.e Suit No.1335 of 1978 was filed on various grounds such as arrears of rent, unlawful subletting, bonafide 3 requirement etc. For the purposes of this petition the allegations relating to unlawful subletting are material. The case made out in the plaint is that the 1st defendant was the tenant who was carrying on business of selling motor spare parts in the suit premises. The allegation is that one of the sheds forming part of the suit property has been illegally sublet in favour of the 2nd defendant which is a proprietary concern. Further allegation is that another part of the suit property has been sublet to the defendant Nos.3a and 3b who are the partners of Union Auto Works. It is alleged that one room out of the suit property has been sublet to the 4th defendant M/s.United Industries. 5. The suit was contested by the defendants by filing written statements. The 1st defendant came out with a case that there was a joint tenancy created in favour of himself and his brother who is the 1st defendant in Civil Suit No.1328 and 1978. The 1st defendant denied material averments in the plaint as regards subletting. It was contended that the 1st defendant was carrying on business in the name of United Industries which is a business in partnership of the 1st defendant himself and his nephew Shaikh Mohamed Afsal. The 2nd defendant as well as 3rd defendant filed a common written statement. It is contended that the 1st defendant has not sublet the suit premises. The 4th defendant filed the written statement 4 contending that the said partnership firm has been constituted by the 1st defendant and by Shaikh Mohamad Afsal. The trial Court heard and decided the suits together and the suits were dismissed. Two separate appeals were preferred by the plaintiffs. The Appellate Court has interfered and passed a decree for possession in both the suits. In the suit No.1335 of 1978 the decree has been mainly passed on the ground of illegal subletting. It must be stated here that the successors of the plaintiffs have purchased the larger property during the pendency of this petition. It must be noted here that one of the successors of the plaintiffs was 2nd defendant in Suit No.1328 of 1978 filed by the plaintiffs. 6. The learned counsel appearing for the petitioners has taken me through the pleadings and the impugned judgment. The learned counsel appearing for the petitioners submitted that one of the successors of the plaintiffs was a defendant in Suit No.1328 of 1978 filed by the plaintiffs which was heard alongwith the suit subject matter of this petition. He pointed out that the defence taken in both the suits was that the 1st defendants in both the suits were joint tenant of the plaintiffs and there were no separate tenancies created in respect of the properties subject matter of the two suits as contended by the plaintiffs. His submission is that virtually the defence of the defendants in both the suits was common and common evidence was adduced by the defendants. He submitted 5 that as one of the successors of the plaintiffs is one of the defendants in the companion suit who contested the claim of the plaintiffs on the ground of subletting, the successors of the plaintiffs cannot defend the decree which as per the stand taken by one of them during the pendency of the suit could not have been passed. He submitted that in the circumstances, the successors of the plaintiffs are not entitled to support the decree in view of the stand taken by one of them during the pendency of the suit and appeal. He submitted that obviously the ground of bonafide requirement is no longer available as the original plaintiffs have disposed of the property and it was the need of the original plaintiffs which was accepted by the Appellate Court. He submitted that specific case made out by the 1st defendant is that the 4th defendant partnership firm of which he was a partner was carrying on business in the suit premises. He submitted that there is no averment in the plaint that the partnership was a camouflage. He submitted that there is no averment that exclusive possession has been transferred in favour of the alleged sub-tenants. He submitted that there was no challenge to the theory of the 1st defendant that it was the partnership firm which was carrying on the business and the partnership firm had nothing to do with the tenancy right which continued with the 1st defendant. He, therefore, submitted that the impugned judgment and decree is erroneous which deserves to be quashed and set aside. 6 He placed reliance on the decisions of the Apex Court in the case of Rajendra Pratap Singh Vs. Rameshwar Prasad [(1998) 7 Supreme Court Cases 602], Thimmappa Rai Vs. Ramanna Rai & Ors [(2007) 14 Supreme Court Cases 63], Helper Girdharbhai Vs. Saiyed Mohmad Mirasaheb Kadri & Ors [(1987) 3 Supreme Court Cases 538]. These decisions are relied upon in support of the contention that unless it is pleaded that the partnership was camouflage, the allegations of unlawful subletting cannot be established. He also placed reliance on the decision of the Apex Court in the case of Nagindas Ramdas Vs. Dalpatram Ichharam alias Brijram & Ors [AIR 1974 Supreme Court 471]. He submitted that the admissions given by one of the successors of the plaintifs are binding on the successors and now they cannot allege creation of sub-tenancy as one of them who a was defendant in the companion suit had taken a stand that there was no subletting. 7. The learned senior counsel appearing for the successors of the plaintiff supported the impugned judgment and decree and submitted that no interference was called for. 8. It will be necessary to make a reference to the evidence adduced by the parties. The case made out in the examination-in- chief of the plaintiff No.2 was that from the year 1975 the 1st defendant was not carrying on business in the suit premises till the 7 date of recording of deposition and the suit premises have been sublet to defendant Nos.2 to 4. The 1st defendant stepped into witness box. He denied all material averments and he came out with a specific case that there was no unauthorised subletting. It will be necessary to consider his cross-examination. In paragraph No.10 of the cross-examination he stated that he was a partner in 4th defendant firm M/s.United Industries. It will be necessary to refer to the relevant part of his cross-examination which reads thus: “ ... I do not know when the defendant no.2 in suit No. 1335/78 started United Auto Garage in the suit premises. .... I have made a partner in the business of defendant no.4 United Industries. It is a fact that I am not concerned with the business of defendant Nos.2 and 3 in suit No.1335/78 and I am not partner in those business. I do not know United Industries has kept accounts. My share is 1/4th in the United Industries. I do not know who are other partners in United Industries. Dilawarkhan is a General Manager in J. Willims Co. He is defendant No.3 in suit No.1328/78. I do not know in whose name the licence stands in respect of business of defendant no.3 in suit No. 1328/78. It is a fact the business of defendant nos.2,3,4 is carried out in my plot which was let out to me i.e in suit no. 1335/78. ..... I cannot say whether the defendant nos.2 and 3 are the partnership concern or proprietary concern in suit no.1334/78.” 9. Thus, the 1st witness examined by the defendants categorically admitted that he was not concerned with the business of defendant Nos.2 and 3 and he was not a partner in the said business. He stated that he was having 1/4th share in the M/s.United Industries. Later on he categorically admitted that the business of 8 defendant Nos.2, 3 and 4 was being carried on the property subject matter of the suit No.1335 of 1978. Thus, he categorically admitted that defendant Nos.2, 3 and 4 were carrying on business in the suit property and that he was not concerned with the business of defendant Nos.2 and 3. He admitted that he was not aware whether defendant Nos.2 and 3 are partnership concerns or proprietary concerns. The defendant No.2 in companion suit, namely, suit No. 1328 of 1978 stepped into witness box. His deposition is mainly as regards suit property subject matter of suit No.1328 of 1978. 10. The defendants also examined one Shaikh Mohamad Afsal who was the defendant No.3b in the suit. He produced the Partnership Deed on record which according to him was also signed by the 1st defendant. In the cross-examination he admitted that the 4th defendant partnership firm was started about 6 to 7 years back but he was unable to remember when the same was registered. 11. All these aspects have been considered by the Appellate Court. The Appellate Court noted that the partnership firm was registered in the year 1979 i.e after the service of suit summons. As pointed earlier, the categorical stand taken by the 1st defendant on oath is that business of 2, 3 and 4th defendants was being carried on the suit property subject matter of the present suit. He stated that he was not aware when the 2nd defendant started M/s.United Auto 9 Garage in the suit premises. It is pertinent to note that he has not denied the correctness of the suggestion that the 2nd defendant started M/s.United Auto Garage in the suit premises. He stated that the business of M/s.United Auto Works (defendant No.3) was started approximately in the year 1975 and the 4th defendant M/s.United Industries started business in the suit premises after the suit was filed. Thus, what has been established is that apart from 4th defendant, the 2nd and 3rd defendants were admittedly carrying on business in the suit property and even according to the case made out by the 1st defendant he was not concerned with the said business. Therefore, this is not a case where the 1st defendant has come out with a case that it was a partnership firm in which he is a partner was carrying on business in the suit property. Thus, what is found is the persons who are not the tenants (i.e 2nd and 3rd defendants) were carrying on business in the suit property. Therefore, the Appellate Court has come to the conclusion that a case of unlawful subletting has been established. The 2nd and 3rd defendants have not explained the capacity in which they were carrying on business. It is not possible to find fault with the finding of fact recorded by the Appellate Court on the basis of evidence of record. 12. Now turning to the submission made by the learned counsel appearing for the petitioners it must be stated that the successors of 10 the plaintiffs were not the defendants in the present suit. One of them was a defendant in the companion suit filed by the plaintiffs against the brother of the 1st defendant. It is true that in view of transfer effected by the plaintiffs landlords, the ground of bonafide requirement will not survive but the ground of unlawful subletting will certainly survive. This is not a case where one of the defendants in the suit has purchased the suit property. One of the purchasers was a party to the companion suit which was heard alongwith suit subject matter of this petition and therefore common evidence was adduced by the parties. The tenancy of the premises subject matter of the said companion suit is held to be a separate tenancy. Therefore, there is no merit in the submission made by the learned counsel appearing for the petitioners that the successors of the plaintiffs cannot support the decree. As stated earlier, it is established on evidence that 2nd and 3rd defendants who are admittedly not the partners in the firm of the 1st defendant have been carrying on business on the suit property and therefore it is not necessary to consider the submission that there is no specific pleading that partnership of the 1st defendant was a camouflage. 13. In view of clear finding of fact recorded by the Appellate Court, no interference is called for. Writ petition is rejected. 14. At this stage, the learned counsel appearing for the petitioner 11 prays for continuation of stay of execution of the decree for possession. The prayer is opposed by the contesting respondents. The decree for possession shall not be executed for a period of three months from today subject to condition that the petitioners will not part with possession of the suit property and will not create any third party interests therein. (A.S.OKA,J)