1 53.cra173.11 ast IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO. 173 OF 2011 Sureshchandra S. Agarwal & ors. ....Applicants. Vs. Bomi Jahangir Irani & Anr. ....Respondents. Mr. R.A. Thorat, Counsel with Mr. P.J. Thorat i/b. Mr. H.V. Chande, Advocate for Applicants. Mr. P.N. Shah, Advocate for Respondents. CORAM:- GIRISH GODBOLE, J DATED:- SEPTEMBER 20, 2011 P.C. 1. Heard Mr. Thorat, Advocate for Applicants and Mr. Shah, Advocate for Respondent No.1 who is original Defendant No. 2. 2. Applicants filed a Suit for eviction under the provisions of Bombay Rent Act seeking eviction on the ground of unlawful subletting (Section 13(1)(e)), non-user (Section 13(1)(k)) and permanent construction (13(1) (b)). On the question of unlawful subletting, the Trial Court has recorded finding of fact that the Defendant No. 2/Respondent No. 1 was in exclusive possession of 3 rooms out of 4 rooms of the suit property as subtenant. It was own case of the Plaintiffs’ that the defendant No.2 is an 2 53.cra173.11 unlawful sub-tenant. Defence of the Defendant No. 2 of being a sub- tenant inducted prior to 1973 as regards 3 rooms has been accepted by the Trial Court and Appellate Court. Mr. Thorat criticises this defence on the ground that though there may be some evidence of possession of one room out of 3 rooms, when the Defendant No.2 had come with a case that remaining two rooms were sublet to him by Shri Icchapuria; it was further for the Defendant No.2 to prove the same by evidence about lawful sub-letting. Hence according to Mr. Thorat, the said plea of the Defendant No. 2 is liable to be rejected. In respect of the 4th room it is submitted by Mr. Thorat that even according to the Defendant No.2 he has been inducted in the 4th room by other sub-tenant Mr. Currawalla in the year 1986 and hence a Decree for eviction in respect of the entire suit premises was liable to be passed. Insofar as the non-user is concerned, Mr. Thorat submits that since the premises are not occupied by the Defendant Tenant for the purpose for which they were allotted, ground under Section 13(1)(k) is made. Regarding ground of permanent construction, Mr. Thorat submits that merely because the sanctioned plan was not produced, Decree could not have been refused. 3. Mr. Shah, Advocate for Respondents supports the findings and 3 53.cra173.11 Judgment of the Trial Court and the Appellate Court. 4. I have considered the rival submissions. The Trial Court has recorded a finding of fact that the Respondent No.1 was inducted as sub- tenant prior to 1/2/1973 and was therefore protected sub-tenant. The Appellate Court has concurred with this finding on appreciation of the evidence. A possible view was taken by the 2 Courts below and no perversity in these findings of facts can be seen. The question as to what is the legal effect of these findings and the findings regarding 4th room having come in the exclusive possession of the Respondent No. 1 by Currawalla in the year 1986. 5. In the face of the findings that the Respondent No.1 was a sub- tenant prior to 1/2/1973 in respect of the 3 rooms and Mr. Currawalla was a sub-tenant again prior to 1/2/1973 in respect of 4th room; assuming that he has inducted Respondent No. 1 in the year 1986 in the 4th room, ground for eviction under Section 13(1) (e) of the Bombay Rent Act, 1947 is not made out. Thus, there is no error of jurisdiction committed by the Trial Court and the Appellate Court in that regard. Once it is found that sub- tenant, whose sub-tenancy is now protected by the statutory amendment 4 53.cra173.11 was occupying the entire suit premises prior to the filing of the suit, the two Courts below were right in refusing the Decree on the ground of non- user contained in 13(1)(k). There is no error of jurisdiction even on that ground. 6. There is also no error of jurisdiction committed by the Courts below in declining the Decree for removal of permanent construction. There is no merit in the Revision Application. The same is rejected. (GIRISH GODBOLE, J)