(1) WP. 506.1993 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 506 OF 1993 Ramcharan Bhandhuram Agrawal, Age : 57 years, Occu.: Business, residing at 62, Pollan Peth, Jalgaon Tq. and Dist. Jalgaon .. PETITIONER (Orig. Plaintiff) VERSUS 1. Shevantabai Gajdhar Brahman (since dead - deleted) 2. Radhabai Shamu Jadhav, Age : 57 years, Occu.: Household, Residing at 64, Pollan Peth, Jalgaon .. RESPONDENTS Mrs. M.L. Sangeet, Advocate h/f. Mr. V.J. Dixit,Sr. Advocate for the Petitioner Mr. M.N. Nawandar, Advocate for the respondent no.2 ... CORAM : V.R. KINGAONKAR, J. DATED : 19TH JULY, 2010 ORAL JUDGMENT:- 1. By this Petition, the petitioner challenges judgment and order passed by learned 3rd Additional District Judge, Jalgaon in Civil Appeal no. 27 of 1985. (2) WP. 506.1993 2. Dispute relates to residential premises consisting of one room on western side of ground floor in municipal house no. 64 (city survey no. 1948/8) situated in Pollan Peth area of Jalgaon. It is an admitted fact that deceased respondent no.1 Shevantabai was tenant of the suit premises. Agreed rent was of Rs.10/- per month. Tenancy month commenced from 1st day of each English calender month. The deceased respondent no.1 Shevantabai had previously married one Dhondu Jadhav i.e. father-in- law of the present respondent Radhabai. Originally, the suit premises were taken on rent by said Gajadhar. There is no dispute about the fact that the deceased defendant no.1 Shevantabai was residing in the suit premises as a tenant wef. 7.8.1970. There is also no dispute about the fact that the petitioner is the landlord of the suit premises. 3. The petitioner alleged that the deceased respondent no.1 Shevantabai acquired alternative accommodation and shifted her residence in such (3) WP. 506.1993 another premises. He further alleged that deceased respondent no.1 Shevantabai paid rent only upto 1.7.1980 and was in arrears of rent wef. 1.7.1980 to 31.10.1981. He alleged that she has sub-letted the suit premises to the present respondent-Radhabai. On these grounds he terminated the tenancy of the respondent and sought possession of the suit premises. 4. While the suit was pending, before it reached logical end the original defendant no.1 Shevantabai died. The present respondent Radhabai alone resisted the suit vide her written statement exhibit 14. She contended that deceased defendant no.1 Shevantabai had died prior to filing of the suit on 8.6.1981 and therefore the suit against dead person was not maintainable. She further contended that she was residing with deceased defendant no.1 Shevantabai as a member of her family. She alleged that about eight years before her death deceased defendant no.1 Shevantabai had shifted to Ambarnath for medical treatment and died there. According to (4) WP. 506.1993 the contesting defendant/respondent, the first husband of defendant no.1 Shevantabai was one Shamu Dhondu Jadhav. She married his son. Shevantabai was driven away by said Dhondu Jadhav during her pregnancy. It was alleged that deceased Shevantabai was given shelter by deceased Gajadhar Puranmal Marwadi and they resided together in the suit premises like husband and wife. The deceased defendant no.1 Shevantabai had then given birth to Shamu who was husband of defendant no.2, and lateron begot two daughters. It was case of the present respondent-Radhabai that she continued to reside in the suit premises even after the death of defendant no.1 Shevantabai. Thus she is tenant of the suit premises. She denied that deceased defendant no.1 Shevantabai or herself had committed default in the payment of rents. On the basis of such pleadings, she sought dismissal of the suit. 5. The parties went to trial over issues settled below exhibit 24. They adduced oral and documentary evidence. The trial Court decreed the (5) WP. 506.1993 suit. The first appellate Court, however, dismissed the suit by allowing Civil Appeal no. 27 of 1985. 6. The petitioner, who is the landlord, challenges that judgment and order of the first appellate Court is unsustainable as findings recorded are perverse. 7. Heard learned counsel for the parties. 8. The trial Court as well as the first appellate Court came to the conclusion that the deceased respondent no.1 Shevantabai was inducted as tenant in the suit premises. The short question for determination is whether the present respondent could be regarded as tenant being member of the family of deceased respondent Shevantabai and as such continued to remain in possession of the suit premises under section 5(11)(c)(i) of the Bombay Rents, Hotels & Lodging House Rates Control Act, 1947 (for short, "The Bombay Rent Act"). (6) WP. 506.1993 9. The trial Court held that the suit premises were sub-letted by deceased defendant no.1 Shevantabai in favour of the present respondent- Radhabai. It has come on record that present respondent Radhabai was daughter in law of deceased respondent no.1 Shevantabai. What appears from the record is that her first husband Dhondu Jadhav ousted original defendant no.1 Shevantabai from his house and thereafter she started residing with Gajadhar Marwadi (Brahmin) like his wife. It appears that she subsequently gave birth to a male child by name Shamu. The present respondent started residing with the family of deceased defendant no.1 Shevantabai as the wife of said Shamu. The present respondent- Radhabai may not be having blood relation with deceased tenant Shevantabai. The material question is whether they were residing together before the death of said Shevantabai. 10. The present respondent filed affidavits (Exh. 40 and Exh. 41) of her husband Shamu and (7) WP. 506.1993 deceased defendant Radhabai in order to show that they were residing together. She also filed copy of ration card which indicated their joint residence in the suit premises. There is reliable evidence to infer that for a good deal of time the present respondent was residing together with deceased defendant Shevantabai in the suit premises. The joint residence of the present respondent with the original tenant goes a long way to prove that she was treated as the member of the family. The testimony of DW-3 Sudhakar shows that record maintained in the Tahsil Office was destroyed and therefore the recitals of the ration card could not be verified. It is possible that for want of proper evidence, the present respondent Radhabai could not establish her relationship with deceased defendant Shevantabai. However, she produced money order coupons (Exh.42 to Exh.46) which indicate that she and her husband Shamu had sent the rent amount to the petitioner. A copy of death extract (Exh.47) reveals that said Shamu died in the suit premises on 25.3.1981. All these aspects go to show that the present respondent was (8) WP. 506.1993 residing in the suit premises as a member of the family of deceased Shevantabai. On behalf of the petitioner, learned counsel seeks to rely on "Kailasbhai Tiwari V. Jostna Laxmidas Pujara and anr. 2006(1) Mh.L.J. 791". The Apex Court held that mere fact that a relative has chosen to reside with the tenant for the sake of convenience would not make him a member of the tenant's family. The Apex Court observed that the question as to whether a person is a member of the family of the tenant must be decided on the facts and circumstances of the case. It is observed: " Apart from the parents, spouse, brothers, sisters, sons and daughters, if any other relative claims to be a member of the tenant's family, some more evidence is necessary to prove that they have always resided together as members of one family over a period of time." 11. In the present case, it is duly proved that the present respondent-Radhabai and her husband resided with deceased defendant Shevantabai for a (9) WP. 506.1993 considerable period. Their joint residence itself shows that they were treated as members of the family. The first appellate Court rendered the impugned judgment on material available from the record. It cannot be said that the view taken by the first appellate Court is without consideration of the relevant evidence or it is perverse. In these circumstances, it is difficult to interfere with the impugned judgment and decree. 12. In the result, the Petition fails and is accordingly dismissed. No costs. Rule discharged. Sd/- [V.R. KINGAONKAR, J.] arp