dgm gm gm IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT WRIT WRIT PETITION NO.6857 OF 2008 PETITION NO.6857 OF 2008 PETITION NO.6857 OF 2008 Ramesh Ganeshwar Wagle & ors. ...Petitioners Vs. Madanlal Chunilal Dakle ...Respondents. Mr.A.G.Damle for the Petitioner. CORAM CORAM CORAM : ANOOP V.MOHTA, J. : ANOOP V.MOHTA, J. : ANOOP V.MOHTA, J. DATED DATED DATED : 17th October, 2008. : 17th October, 2008. : 17th October, 2008. P.C. P.C. P.C. The petitioner has challenged the judgment and order dated 06.08.2007 passed in Review Application and Order dated 27.04.2005 passed in RAD Suit No.1737/1985 by the Small Causes Court at Bombay. The petitioner/plaintiff has filed a Suit for declaration of his tenancy right as protected licensee in respect of the part of flat No.2-A in question and also prayed for restraining the defendants/landlord from executing the decree passed in RAE Suit No.511/4146/1966. 2. The trial Court, after considering the rival contentions including the judgement and decree passed in Regular Civil Suit as referred above held that the Suit is not maintainable; the petitioner is not ( 2 ) entitled to the protection under the Bombay Rent Act, the Suit is not barred by res-judicata in view of decision in RAE Suit No.2094/1993 and therefore negatived all his prayers. 3. In Writ Petition No.6845/2008 and Writ Petition No.6855/2008, after considering the case of other brothers of the petitioner who also claim to be sub-tenants as according to them also their father used to pay rent to the original tenant and thereafter to the original defendant. But all these contentions were not accepted by; the Court and permitted the landlord to take possession from those brothers of the petitioner. The case of the petitioner is not on better footing. The petitioner here in fact sought declaration and protection on some foundation without any material to justify the case of alleged tenancy and/or licensee to get the protection under the Bombay Rent Act. Being the plaintiff, as he failed to prove his own case, as rightly observed by the trial court while considering the evidence on record who had full knowledge of the above Suit and the Appeal which are subject matter of the above writ petitions, in view of this also there is no reason to interfere with the reasoning given by the courts below. There is a clear ( 3 ) finding given in the Suit no.511/4146/1966 that the brothers of plaintiff were residing with him as members of his family and not as joint tenants. As already noted there is no material to show that any contribution is made and any valid rent receipt also of recent time. The entry in the pass-book in no way can be said to be rent receipt as claimed. The petitioners/plaintiffs were the obstructionist in obstructionist notice No.32/1993. 4. There is also material evidence of PW1-Shivanand that Madhukar was residing with Kamalakar in the suit premises as member of his family and there was no agreement in writing of sub-tenancy. The family members of tenant who are residing in the suit premises therefore cannot become sub-tenant or licensee of the original tenant. The finding so given therefore that the plaintiff is not either a protected sub-tenant or protected licensee and/or direct tenant of the landlord after termination of the tenancy or original tenant-Kamalakar by judgment in RAE Suit No.511/1966. The basic decree of eviction passed in the year 1974 in Suit No.511/1966, the petitioner has filed a Suit in the year 1985 and, therefore, rightly held to be not within limitation. The petitioner has also not joined ( 4 ) other co-owner as a party to the Suit. In view of above, as all these matters are interlinked, therefore also there is no case made out to take other view. 5. Therefore, taking all this into account, the impugned order dated 27.04.2005 in RAD Suit No.1737/1985 and the rejection of review by the impugned order dated 06.08.2007 are also correct, need no interference. 6. In view of above, the petition is therefore dismissed. 7. The learned counsel appearing for the petitioners seeks time to vacate the premises as petitioners are in possession since long. On usual undertaking the time is granted for six months. Filing of undertaking is a condition precedent within two weeks. ( ANOOP V. MOHTA, J.) ANOOP V. MOHTA, J.) ANOOP V. MOHTA, J.)