: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6523 OF 1995 Shantabai @ Rampyari @ Ramabai Kishanlal Marwadi @ Lunawat, Occ: Business, resident of Manmad, Taluka: Nandgaon (Nasik), @ Shantabai ...Petitioner Bansilal Marwadi, r/o.Manmad. (Ori.Deft.2) Versus Shankar Bhikaji Kulkarni, (since deceased through his HLRs.) 1A. Nilkanth Shankar Kulkarni, Age: 55 years, Occ: Service. 1B. Vasant Shankar Kulkarni, Age : 46 years, Occ: Service. 1C. Gajanan Shankar Kulkarni, Age : 40 years, Occ: Priest. 1D.Laxmikant Shankar Kulkarni, Age: 35 years, Occ: Service, all residing at Manmad, Tal: Nandgaon, Dist.Nasik. 2.Manubhai Mulchand Pardeshi, (since deceased through HLRs) a) Jashodabai Mulchand Pardeshi, Age : 50 years. b) Sunderbai Bansilal Pardeshi, Age : 47 years. : 2 : Both Occ: Labourders, R/o.Telli Galli, ...Respondents Manmad, Tal.Nandgaon, Dist.Nashik. (No.1-Ori.Plff. & No.2-Ori. Deft.No.1) ...... Mr.V.Z.Kankaria for Petitioner. Mr.R.M.Haridas i/b Mr.P.N.Joshi for Respondent No.1B. ...... CORAM : A.M.KHANWILKAR, J. DATED : OCTOBER 5, 2009. JUDGMENT : 1. This Writ Petition under Article 227 of the Constitution of India takes exception to the Judgment and Decree passed by the Additional District Judge, Malegaon, District Nashik in Civil Appeal No.143 of 1989 dated 29th September 1995, thereby allowing the Suit preferred by the Respondent and directing delivery of vacant possession of the suit property to the Respondent/landlord. The Appellate Court reversed the Judgment and Decree passed by the Trial Court dated 28th February 1986 in Civil Suit No. 83 of 1984. The said Suit was filed by the Respondent/landlord for recovery of possession of the suit house and recovery of rent against two Defendants. According to the Respondent/landlord, Defendant No.1 was the original tenant and has permitted Defendant No.2 to stay in the suit premises : 3 : without consent of the landlord. The case of the Respondent/landlord is that the Defendant No.2 has been inducted in the suit premises only recently before institution of the Suit. The Defendant No.1 did not bother to appear in the Suit, though duly served. The Suit proceeded ex-parte against the Defendant No.1. Insofar as the Petitioner/Defendant No.2 is concerned, the defence of the Petitioner was that she was direct tenant in respect of the suit premises. The Petitioner categorically denied that she was the sub-tenant of Defendant No.1 in the suit premises. It is in this context, the matter proceeded before the Trial Court. The Trial Court framed Issue No.9 as to whether Defendant No.2 proves that she is tenant in the suit house for more than 20 years. Issue No.11 as framed by the Trial Court was that whether Defendant No.2 proves that she had paid rent to Plaintiff till February 1979, but she was not given rent receipts. Both these issues were answered in favour of Defendant No.2. Insofar as Issue No.9 is concerned, the Trial Court disposed of the same only with the following discussion: “Issue No.9 :- The defendant pleaded as well as deposed that she is a tenant over suit house since last 20 years. She has filed municipal house extracts on record to support her contentions. The above documents being public documents shows that defendant No.1 is residing in suit house since last 20 years hence I answer this issue in affirmative.” 2. Significantly, there is no discussion at all on Issue No.11 by the Trial : 4 : Court. Nevertheless, the Trial Court proceeded to dismiss the Suit in its entirety. Against this decision, the Respondent carried the matter in Appeal. The issues that were raised before the Appellate Court have been articulated in Paragraph 7, amongst others, whether Defendant No.1 is the tenant in the suit premises and whether Defendant No.2 is defaulter in payment of rent as alleged. If the Appellate Court were to hold that the Defendant No.2 is tenant in the suit premises, obviously the answer to Issue No.2 framed by the Appellate Court would become redundant. In that case, the Court would have been obliged to enquire whether the Defendant No.2 being the direct tenant itself was a defaulter-without which decree of eviction could not be passed against Defendant No.2. The Appellate Court while considering the first issue as to whether Defendant No.2 was the tenant in the suit premises has considered all the relevant aspects and recorded a clear finding of fact that the Defendant No.2 failed to prove that she was direct tenant of the Respondent/Plaintiff in respect of the suit premises. The Appellate Court has adverted to the evidence produced by the Petitioner. The Appellate Court has discerned the inconsistent stand taken by the Petitioner/Defendant No.2 at different stages. Inasmuch as in the reply Exhibit 35, she contended that in the beginning, the suit property was taken by her through the Defendant No.1 Munnabai and she used to pay rent to Munnabai, but rent : 5 : receipts were not issued. The Appellate Court has noticed that in support of this contention, no evidence was produced nor any rent receipts were produced. In the written statement, the Petitioner/Defendant No.2 has propounded a different theory that she was tenant in the suit premises as she had taken the premises on rent. The Appellate Court has then found that in her evidence before the Court, the Defendant No.2 has deposed that the suit premises was taken on rent by her husband. No such case was made out in the written statement as filed by the Defendant No.2/Petitioner. The Appellate Court has also noticed that in the reply Exhibit 35, she had asserted that she paid the rent up to August 1973, whereas, in the written statement, she has stated that she has paid the rent till February 1979. The Appellate Court on analysing all these aspects has recorded a finding that the Defendant No.2 failed to prove that she was a direct tenant in the suit premises. The specific plea taken by the Defendant No.2 has thus been negatived by the Appellate Court. The Appellate Court then noticed that there was clear evidence to the effect that Defendant No.1 was the tenant in the suit premises. Further, Defendant No.1 failed to pay rent for the period from 11th November 1970 till the filing of the Suit in 1984. The Appellate Court has also noticed that the Defendant No.1 did not deposit the rent. In other words, the Defendant No.1 failed to produce any evidence to establish : 6 : the fact that she was not in arrears of rent and was regularly paying the rent to the landlord. It is in this backdrop, the Appellate Court proceeded to decree the Suit and directed delivery of vacant possession of the suit property to the Plaintiff. 3. This decision is subject matter of challenge in the present Writ Petition under Article 227 of the Constitution of India. Having gone through the record and the Judgment under Appeal, I have no hesitation in taking the view that the attempt of the Petitioner is to question the correctness of the finding of fact recorded by the Appellate Court. It is well established position that the Appellate Court is the final fact finding Court. The finding so recorded will bind this Court also unless the same is shown to be perverse or manifestly wrong. The finding recorded by the Appellate Court on both the questions is unquestionable. Inasmuch as, the fact that the Petitioner/Defendant No.2 was the direct tenant in the suit premises specifically pleaded by the Petitioner has not been established. The record, however, reveals that the Defendant No.1 was the tenant in the suit premises. It is not the case of the Petitioner that she was inducted in the suit premises prior to 1973 so as to get protection under the provisions of the Rent Act. The specific plea of Defendant No.2 is that she was direct tenant : 7 : and which plea has been rejected for valid reasons recorded by the Appellate Court. The Appellate Court has rightly noticed the inconsistency in the stand taken by the Defendant No.2 at different stages of the proceedings. 4. In my opinion, no fault can be found with the said view taken by the Appellate Court, more so, when the same is a possible view. In other words, the Petitioner/Defendant No.2 has failed to establish that she was a direct tenant of the landlord in the suit premises. It necessarily follows that she will have to abide by the decree which would operate against the Defendant No.1 being person claiming through Defendant No.1 as mentioned by her in reply Exhibit 35. The Defendant No.1 who is the tenant on the other hand has failed to appear in the proceedings nor has attempted to pay the amount as demanded by the Respondent/Plaintiff under the suit notice. The Defendant No.1 was therefore a willful defaulter within the meaning of Section 12 of the Bombay Rent Act as applicable at the relevant time. The Appellate Court, has, therefore rightly decreed the Suit and directed the Defendants to deliver the vacant and peaceful possession of the suit premises to the Respondents/Plaintiffs. That decree will have to be upheld. Accordingly, this Petition fails. The same is dismissed with costs. : 8 : 5. At this stage, Counsel for the Petitioner submits that the Petitioner be given opportunity to go in Appeal and the operation of the impugned decree be deferred for some reasonable time. By way of indulgence and in the interest of justice this request is accepted. However, it is clarified that the decree shall remain in abeyance for a period of six weeks from today, subject to filing usual undertaking in the Registry within two weeks from today. A.M.KHANWILKAR, J.