1 cra166.sxw ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION CIVIL REVISION APPLICATION NO.166 OF 2010 Mukesh Mansukhlal Shah ...Applicant vs. Dilip Shankar Choudhary & Ors. ...Respondents Mr.Atul G. Damle for the applicant Mr.P.B.Shah for respondent nos.1 to 4 CORAM :A.S.OKA,J. DATE : AUGUST 26, 2010 P.C. 1 Heard the learned counsel for the applicant and the learned counsel for the respondent Nos.1 to 4. This revision has been preferred by the original 1 st defendant by which the challenge is to the concurrent decree of eviction passed by the Courts below on the ground of illegal subletting or transfer and carrying out permanent construction. The Courts below have recorded a finding of illegal subletting and/or illegal transfer by the applicant in favour of the defendant no.5. Decree on the ground of carrying out permanent construction has also been passed by the Courts below. 2 The learned counsel for the applicant has taken me through the impugned Judgments and notes of evidence. He submitted that the specific case of the applicant is that in the suit shop he was carrying on business of on-line lottery. He pointed out that a specific case was made out in the written statement that the applicant was a patient of Blood Pressure and he needed help of an expert in computer for carrying on business and therefore, he was 2 cra166.sxw taking the help of 5 th defendant (the respondent no.8 herein). He submitted that the 1 st to 4 th respondents (original plaintiffs) have not discharged the burden of proving that the applicant has parted with possession of the suit shop and the applicant has inducted the defendant no.5. He submitted that in absence of any evidence to show that the applicant has parted with possession, the trial court and the Appellate Court could not have passed a decree on the ground of subletting. He invited the attention of the Court to the examination in chief of the applicant in which the applicant has categorically stated that he continues to be in possession of the suit shop and he has not parted with possession thereof. He submitted that all these aspects have not considered by the courts below. He also made submissions on the other ground of eviction and contended that the decree on the ground of permanent construction could not have been passed. 3 I have given careful consideration to the submissions. During the pendency of the suit, an amendment was carried out by the 1 st to 4 th respondents for alleging that the 5 th defendant/8 th respondent has been inducted by the applicant without their consent. The stand taken by the applicant appears to be that he continues to be in possession. The learned counsel for the applicant invited my attention to the assertions made in further affidavit in lieu of examination in chief of the 1 st respondent. It must be noted here that the said further affidavit in lieu of examination in chief, the case made out by the 1 st respondent is that the applicant has sublet the suit shop to the 5 th defendant in which the said defendant was carrying on business of lottery in the name and style of Farhan on line . Perusal of the affidavit in lieu of examination in chief of the 3 cra166.sxw applicant shows that there is no specific explanation as to how the name of the Farhan online lottery appears. He has stated that he has not sublet the suit shop and he is carrying on the business of lottery in the suit shop. In the cross examination, he stated that in the year 2004, he had started the business in the name and style of Raja lottery. He stated that thereafter he purchased the lottery machine from one Sayad-5 th defendant-8 th respondent at the monthly rent of Rs.2,000/- and the shop was named as Farhan online lottery. He admitted the photographs of the suit shop showing the name board of Farhan on line lottery . He admitted that the said name is of the daughter of 5 th defendant and that the lottery permit is in the name of the said daughter. All this explanation has not been given in the examination- in-chief of the applicant. Thus, not only that the shop bears the name of the daughter of the 5 th defendant, but the machine used is of the said defendant and the licence of lottery stands in the name of the daughter of the 5 th defendant. He admitted that he closed down his earlier business of selling the bags and started lottery business. That is how an inference has been drawn by the courts below and especially by the Appellate Court that the 5 th defendant is carrying on business in the suit shop. It is the case of the applicant that on line lottery machine is owned by the 5 th defendant. The applicant has not examined the 5 th defendant or his daughter as witness. Therefore, an inference has been drawn that 5 th defendant is in possession. The burden was on the said defendant to explain in what capacity he was in possession. That burden has not been discharged. 4 In view of the aforesaid factual position, it is not possible to interfere with the impugned Judgment and Decree on the issue of unauthorised subletting. It is 4 cra166.sxw not necessary to go into other submissions made by the learned counsel for the applicant on the issue of permanent construction as decree for possession on one ground has to be upheld. 5 Hence, no case is made out for interference in revisional jurisdiction. Revision application is rejected. 6 On the prayer made by the learned counsel for the revisional applicant, ad-interim relief granted by this Court will continue to operate for a further period of six weeks from today. JUDGE