1 CRA No.27/11 mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO.27 of 2011 (i) Shri Ramkrishna T. Kumble (ii)Shri Narayan T. Kumble ... Applicants versus (1) Shri Sheetalprasad Yadav (deceased) 1A. Mrs.Yashodadevi Yadav 1B. Mrs.Sushiladevi w/o Lalta Yadav 1C. Mrs.Premadevi w/o Hari Om Yadav 1D. Mr.Ramkrishna s/o Shitala P. Yadav 1E. Mrs.Prabhavati w/o Surendra Yadav 1F. Mrs.Saritadevi W/o Prakash Yadav 1G. Durgadevi w/o Pradeep Yadav 1H. Mr.Krishna s/o Shitalaprasad Yadav .... Respondents (orig. plaintiffs) 2. Shri Ashok Rao ... Respondents (orig.defendant no.2) ... Mr. D.S.Sakhalkar i/b Nutan Moily for the applicants Mr.Y.K.Tiwari i/b M/s.K.P.Tiwari & Co. for the respondents CORAM : D.G. KARNIK, J DATED : 25th January 2011. 2 CRA No.27/11 P.C. 1. By this application, the revision applicants challenge the judgment and order passed by the appellate bench of the Small Causes Court confirming the decree for eviction passed against the applicants. 2. Respondents are the landlords. They filed a suit against the applicants interalia on the ground that the applicants had acquired suitable residential premises elsewhere. After considering the oral and documentary evidence adduced on record, the trial court held that the applicants had acquired suitable residential premises at 502, Khanna Apartments, 6025, Nari Seva Sadan Road, Asalfa, Ghatkopar(West) Mumbai 84 and passed a decree for eviction. The lower appellate court confirmed the decision dismissing the appeal. Aggrieved applicants are before this court. 2. The trial court has considered the evidence adduced by the respondents regarding the acquisition of the alternative premises 3 CRA No.27/11 by the applicants and has believed it. The trial court has also noted that a summons of the amended plaint was served on the applicants at the address of the alternative premises. The view taken by the two courts below that the applicants have acquired alternative premises is a possible finding of fact which requires no interference in exercise of a revisional jurisdiction under section 115 of the Code of Civil Procedure. 3. Learned counsel for the applicant submitted that the fact that the summons of the amended plaint was served on the applicants at the address of the alternative premises does not prove the acquisition of the alternative premises on the date of the suit. Relying upon a decision of this Court in the case of Shankarrao Dattatraya Kalyankar Vs.Vishwasrao Dadasaheb Patil, 1998(3) Bombay Rent Cases 456 equivalent to 1998(3) Mh.L.J. 310, counsel for the applicants submitted that cause of action must exist on the date of filing of the suit i.e alternative premises must be shown to have been acquired by the tenant on the date of the suit and not subsequently. Suit summons is necessarily served 4 CRA No.27/11 subsequently to the filing of the suit and that would at the most show that applicants were in possession of the alternative premises subsequent to the filing of the suit and not on the date of the suit. He further submitted that the mere fact that applicants were in possession of the alternative premises is not a proof of acquisition of the premises and the respondent landlord ought to have been adduced further evidence to show in what capacity the applicants were in possession of the suit premises viz. whether as an owner or as a tenant or may be merely as licensees. 4. Section 106 of the Evidence Act provides that when any fact is specially within the knowledge of a person, the burden of proving that fact is upon him. The fact that the applicants were in possession of the alternative premises cannot be disputed as the suit summons was served on them on the address of the alternative premises itself. In what capacity they were in possession of the alternative premises is a fact which is within the special knowledge of the applicants and the applicants were required to prove in what capacity they were in possession. They did not enter the witness 5 CRA No.27/11 box at all and did not explain their possession of the alternative premises. It therefore cannot be held that the finding of fact recorded by the two courts below that the applicants were in possession of the alternative premises and and they had acquired alternative premises is in any way perverse. 5. In the plaint itself, respondents had stated that applicants had acquired the alternative premises and were in the process of shifting to the alternative premises. They had further pleaded that some strangers had been visiting the suit premises and one of them by name Pravin had approached the respondents for transfer of the tenancy and terms and enquired about the conditions for such transfer. This event was before the filing of the suit. Once it is proved that the applicants had acquired the suit premises and were in possession thereof soon after the filing of the suit, the burden of proving the date of acquisition was on the tenants because this was a fact which was within their special knowledge. As the applicants had not entered the witness box and had not discharged the burden, the Courts below committed no error in holding that the 6 CRA No.27/11 applicants had acquired the suit premises at or before filing of the suit. 6. No other point was urged. There is no merit in the revision application which is hereby rejected summarily. (D.G.KARNIK, J)