: 1 : IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO.454 OF 2008 Dr.Eknath Keshav Sonsurkar (deceased) & Ors. ..Applicants. Vs. Shri Zoovan Chandular Mehhta (deceased) & Ors. ..Respondents. Mr.P.K.Dhakephalkar i/b.Mr.Sachin Dhakephalkar for the Applicants. Mr.P.S.Dani for the Respondents. CORAM : S.J. VAZIFDAR, J. CORAM : S.J. VAZIFDAR, J. CORAM : S.J. VAZIFDAR, J. DATED : 18TH OCTOBER, 2008 DATED : 18TH OCTOBER, 2008 DATED : 18TH OCTOBER, 2008 P.C. : P.C. : P.C. : The Civil Revision Application is filed against the judgment and order passed by the Appellate Bench of the Small Causes Court, confirming the decree of eviction passed against the Applicants. 2. The judgment does not warrant any interference. 3. The original Plaintiff died pending the Appeal. One of his daughters has settled in Canada and his elder son has acquired premises in Ulhasnagar, which is at quite a distance from the suit premises. His younger son is employed in Nagpur where he resides in tenanted premises. The impugned order however : 2 : did not consider the requirement of these children of the original Plaintiff, to be a ground for eviction. 4. What was held in favour of granting the decree was that another daughter of the deceased Plaintiff lives and works in Mumbai. Despite the suit premises being owned by the family, she has been staying as a paying guest in a distant suburb. This has been clearly established in the evidence. 5. Added to this, is the evidence accepted by the courts that the Defendants have their own accommodation close by at a place called "Narayan Niwas" at Matunga, Mumbai admeasuring about 650 sq. ft. The suit premises admeasure about 407 sq. ft. 6. Mr.Dhakephalkar contended that the Plaintiff had failed to establish that the premises in "Narayan Niwas" were available for occupation by the Defendants. 7. The court have at considerable length analysed the evidence in this regard and rejected this contention. I am unable to say that their appreciation of the evidence is absurd, perverse or : 3 : insupportable. In my view, the conclusion that they have come to is, to say the least, reasonable. 8(A). That the Applicants had premises of their own was pleaded in the plaint. (B)(i). In paragraph 9 of the written statement, the Applicants stated :- "9. With reference to para 7H of the Plaintiffs amended plaint, it is true to say that the premises situated at Matunga, near Railway station is kept locked and unused by the defendants because this being ancestral property of the defendants is under dispute since last 3 to 4 decades and defendants themselves are not the sole owners of the said property and therefore the allegations are denied by the defendants." (ii). There are no details furnished regarding the nature of the dispute. Nor are there any details as to why the premises cannot be occupied by the Applicants. 9(i). This aspect of the matter was deposed to in detail by the Respondent in the examination-in-chief. : 4 : The Respondent expressly stated that the Defendants were in possession of the premises admeasuring 650 sq. ft. in "Narayan Niwas" Building; that the original Defendant was residing therein even after the suit tenancy was created, as evidenced by the correspondence addressed to the original Defendant by the original Plaintiff and that the premises were kept locked and unused. It is important to note that the Respondent expressly also denied that the premises were kept locked and unused as there was an alleged dispute. The Respondent stated that the said 650 sq. ft. were in the possession of the Defendants which they were keeping locked and only the remaining area was used by the Defendant’s relatives. It was further stated that the property consisted of land and structures admeasuring about 10,000 sq. ft. which belonged to the father of the original Defendant and that the Defendants were entitled to reside therein. 10. In view of the above evidence, the onus had shifted to the Defendants to establish that the premises at "Narayan Niwas" admeasuring 650 sq. ft. was not available for their use and occupation. (A). In his Examination-in-chief the Defendant’s : 5 : witness stated as under :- "The defendants submits that the premises situated at Matunga near Railway station is kept locked and unused by the defendants because this being ancestral property of the defendants is under dispute since last 3 to 4 decades and defendants themselves are not the sole owners of the said property and therefore the allegations are denied by the defendants." (B). This evidence certainly did not discharge the onus which had shifted on the Defendants. As stated above, the Plaintiff’s witness had expressly denied that the premises were not available for occupation by the Defendants due to any dispute. The Plaintiffs obviously could not prove the negative. In these circumstances, the least that was expected of the Defendants was to furnish particulars of the dispute as a result whereof they were allegedly unable to use the said premises. It is also important to note that the Defendants have not denied that it is they who kept the premises locked and unused. (C). In the cross-exaination, the Defendants’ witness stated as under :- : 6 : "The factory plot at Matunga is kept locked due to legal complications between the landlord and the person who is in possession of it. Including the defendants there are three landlords of the said plot. The defendants have 1/9th share in the plot. The said premises is locked by the person who is in possession. Besides this there is a chawl the premises in which are in possession and occupation of the tenants. Before acquiring the suit premises my parents were residing at Matunga property. Matunga property comprises two plots viz. plot no.135 and 136. The factory premises is on plot no. 136 and chawl is on plot no.135. My father’s father was owner of one plot and my father’s mother was owner of another plot. There was dispute in respect of plot no.136 in the Small Causes Court. That suit is dismissed. I am not aware the particulars of the said suit as my father and uncle were looking after the same. The papers of that suit are lying with me. I have no idea in which year the said suit was dismissed. It was dismissed during the life time of my father. In respect of this property there is dispute between my father and my uncle. I have no idea whether there is any suit is/was pending. After the demise of my father I have not been joined as a party in those suits. My father was not in possession in any of the premises in Matunga property. My father’s sister was residing in Matunga property till her death. I am not aware when she expired. For last three to four years my brother Rajesh is not residing at Thane. They went to reside at Thane after two years. He might have stayed at Thane for about three years." : 7 : (D). The Defendants’ witness deposed about legal complications but did not specify them. He did not even mention the name of a person who had allegedly locked the premises and is in possession. The Defendants reluctance to produce the particulars of the suit is not understandable. Merely because his father and uncle were attending to the suit did not prevent him from producing the same. Nor has he even suggested any reason why he was unable to produce the proceedings. It was for the Defendants to produce the same. Not having done so, it must be held that the Defendants failed to establish that the said premises were not available for their use and occupation. 11. In the circumstances, the Civil Revision Application is dismissed. 12. The time to vacate is extended upto 31.5.2009 subject to the Defendants filing the usual undertaking on or before 20.11.2008. ***