WP. 5072-95 - 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL WRIT PETITION No. 5072 OF 1995 WITH CIVIL APPLICATION No. 2038 OF 2008 WITH SECOND APPEAL No. 626 OF 1995 WITH CIVIL APPLICATION No. 5610 OF 1995 1. Ramchandra Devnath Yadav, ) Age 63 years, Retired, Residing at- ) Dixit Chawl, Uthalsar, Thane ) 2. Rammurat @ Ramkisan Rajbhar, ) Age 48 years, Retired, Residing at - ) Dixit Chawl, Room No. 2, Uthalsar, Thane, ...Petitioners Through Constituted Attorney Petitioner ) Appellants in No.1. ) Second Appeal Vs. 1. Bhagwatidevi Birbal Pardeshi, (Since ) deceased, represented through Legal heirs ) 1A. Rampratap Birbal Pardeshi, Adult, ) 1B. Hiralal Birbal Pardeshi, ) Both residing at village Vesawa, Tahsil - ) Saidpur, Dist. Gazipur (U. P.) ) WP. 5072-95 - 2 - 2. Pramilabai Dixit (since deceased, represented through Legal Heir) ) ..Respondents in WP 2A. Mrs. Smita Arvind Karnik, Age 54 years, )/ Respondent Nos. 1, Occu.- Household, Residing at “Asmita”, ) 2 in Second Appeal Lokmanya Society, Ring Road, District-Peth ) Jalgaon. Mr. Dilip D. Deshmukh, Age 43 years, ) Respondent No. 3 in Residing at C-1, Gaurinandan Society, ) Second Appeal & Almeida Road, Panchpakhadi, Thank ) Applicant in Civil Appln. No.2038/2008 *** Mr. Rajesh S. Datar, for the Petitioners/Appellants. Mr. R. S. Apte, Sr. Counsel a/w M. D. Nagle & Sagar Ambedkar i/b Mr. D. K. Gaisas for Respondent No. 1A & 2A. *** CORAM: V. M. KANADE J. DATE : AUGUST 8, 2011 ORAL JUDGMENT : 1. Heard the learned counsel appearing on behalf of the petitioners and the learned counsel appearing on behalf of respondent Nos. 1A and 2A. Both, the petition and the second appeal can be disposed of by a common judgment since they are arising out of a common judgment which is challenged in the second appeal as well as in the writ petition. The Petitioners in this petition and the appellants in the WP. 5072-95 - 3 - second appeal are one and the same persons and the respondents in the writ petition are some of the respondents in the second appeal. The petitioner herein filed a suit for declaration that he is a tenant in respect of the suit premises. Defendant No.1 who is respondent No.1 herein alleged that she was forcibly dispossessed by the petitioners herein. The landlady stated that she would accept the person who is declared as a tenant by the court. Respondent No.1 also filed a suit for possession on the ground that she was forcibly dispossessed by the petitioners herein and in the said suit she alleged that she was tenant of the suit premises and when she had gone to her native place, the petitioners herein dispossessed and did not permit her to enter the premises. The trial court allowed the suit filed by respondent No.1 and dismissed the suit filed by the petitioners herein. The appeal filed by the petitioner was dismissed by the lower appellate court. 2. The learned counsel appearing on behalf of the petitioner submitted that the issues in respect of the petitioners’ suit have not been answered by the trial court though both suits were disposed of by a common judgment. My attention was invited to the judgment of the trial court in which it is pointed out that only issues in respect of respondent No.1’s suit was reproduced and answered. He submitted that a WP. 5072-95 - 4 - substantial ground was taken in the grounds of appeal. This particular ground was not considered by the lower appellate court. Secondly, it was submitted that both the courts below had not taken into consideration the fact that exclusive possession of the petitioners in respect of the suit premises and that he was paying the rent to the landlady and that the original rent receipts were produced by him though they were in the name of respondent No.1. He submitted that though there was sufficient material on record, both the courts had ignored the said material. It was also submitted that the landlady had filed an application before the lower appellate court in which she had admitted that petitioner was paying rent to her. Thirdly, it was submitted that the petitioner was a protected tenant in view of the provisions of Section 15A of the Bombay Rent Act, 1947 in view of the transfer of tenancy prior to 1st February, 1973. It is also submitted that the original landlady as well respondent No. 1 had transferred all their rights in favour of one Deshmukh who has been added as a respondent in the second appeal and therefore, the cause of action on the part of respondent No.1 did not survive. 3. On the other hand, the learned senior counsel appearing for respondents submitted that though the issues were not reproduced by the trial court, in the discussion both the issues were discussed and WP. 5072-95 - 5 - answered. Secondly, it is submitted that the lower appellate court also considered the case of both the parties and had accordingly decided the said points for determination. So far as second submission is concerned, it was submitted that respondent No.1’s substantial plea was of dispossession by the petitioners and therefore, merely because the rent receipt was produced by the petitioners, that would not conclude that they were tenant of the premises. Lastly, it was submitted that since no evidence was produced by the petitioner that he was tenant in respect of the premises, and on the other hand, case of respondent No.1 that she has merely permitted to reside in the premises and she was dispossessed was accepted. This submission, therefore, do not survive. 4. After having heard both the counsel at length, I find that no case is made out for interference with the concurrent finding of fact recorded by both the courts below. The Apex Court in several cases held that power of this court to interfere with the concurrent finding of fact recorded by both the courts below under Section 100 of the Civil Procedure Code and Art. 227 of the Constitution of India is very limited and only cases where there is an error of law, apparent on the face of record committed by the courts below or the finding recorded by the lower courts is patently perverse, only in such cases the supervisory WP. 5072-95 - 6 - jurisdiction of this court should be exercised by this Court. 5. I have perused the impugned orders passed by both the courts below. Both the lower courts have given cogent reasons while coming to the conclusion that the petitioner was not a protected tenant in the suit premises and was therefore not entitled to any protection and further it is held that he had forcibly dispossessed respondent No.1. No case is therefore made out for interfering with the impugned orders passed by both the courts below. Lastly, merely because respondent Nos. 1 and 2 have transferred their rights to respondent No.3, it cannot be said that cause of action did not survive since respondent No.3 had now stepped into shoes of both respondent Nos. 1 and 2 and has been added as respondent No.3 by an order of this court in writ petition, under Order 22, Rule 11 of the Civil Procedure Code. Civil Writ Petition and the Second Appeal are, therefore, dismissed. 6. However, one year time is given to the petitioners/appellants to vacate the suit premises, subject to the undertaking to be filed in this court within four weeks on usual terms. The undertaking shall be given by all the adult persons who are in occupation of the suit premises and it should further be mentioned therein that they shall not create any third party rights or hand over possession to any third party or create mortgage WP. 5072-95 - 7 - or lease in respect of the suit premises, and hand over quiet, vacant and peaceful possession within one year i.e. on or before 31st August, 2012. If the undertaking is not filed within a period of four weeks, the impugned decree shall be executed by the petitioners. A copy of the undertaking shall be served on the respondents. 7. Civil Application No. 2038 of 2008 is allowed since corresponding Civil Application No. 1410 of 2006 filed in Second Appeal No. 1410 of 2006 has been allowed by this Court. 8. In view of dismissal of the Second Appeal, Civil Application No. 5610 1995 filed therein does not survive for consideration and is accordingly disposed of. [ V. M. KANADE J.]