1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1601 OF 1991 Rajshekhar @ Sidramappa Mahadappa Jamma resident of 976, North Kasba. ..Petitioner. V/s. 1. Smt.Kusum Jivraj Shah residing at 976, North Kasba, Sholapur. 2. Revansidha Sidramappa Bhogade, resident of 917, North Kasba, Sholapur. 3. Gandhi Natha Rangaji Digamber Jain Janamangal Pratisthan, through its Secretary, having its office at 13, Budhwar Peth, Solapur. ..Respondents. Mr.S.G.Deshmukh for petitioner. Mr.M.R.Deshpande for Respondent Nos. 1 & 3. CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J DATE : MARCH 19, 2009. DATE : MARCH 19, 2009. DATE : MARCH 19, 2009. JUDGMENT : JUDGMENT : JUDGMENT : 1. Heard Counsel for the parties. 2. This Petition takes exception to the concurrent Judgment and Decree of eviction passed by the two Courts below against the Petitioner in respect of premises being Shop premises out of Municipal House No.976 situated in North Kasba, 2 Sholapur. It is not in dispute that the said shop was let out by the landlord to the Defendant No.1. It is the case of the Plaintiff that the Defendant No.1 in turn inducted the Defendant No.2 in the suit premises without prior permission of the landlord. It is on that allegation, the landlord instituted suit for possession on the ground of unlawful subletting. In the said suit another ground for possession pressed into service by the landlord was of arrears and default. In the present Petition, we are concerned only with the correctness of the finding recorded by the two Courts below on the ground of unlawful subletting. Both the Courts below have decreed the suit in favour of the Plaintiff/landlord on the said ground. 3. The Defendants contested the suit. In the Written Statement, the case made out by the Defendant was that the Defendant No.1 surrendered the suit premises to the landlord on 1.1.1973 and immediately on that date the premises were let out to the Defendant No.2. In other words, the claim of the Defendant No.2 was that he was the direct tenant of the landlord and not subtenant, as alleged. The fact remains that the Defendant No.2 was in exclusive possession of the suit premises has been conceded in 3 the stand taken by the Defendant No.2. It is the Defendant No.1, who was inducted as tenant in the suit premises by the landlord. Even that fact is not in dispute. Therefore, the issue that needs to be addressed is whether the tenant established the fact that on 1st January, 1973, the Defendant No.1 surrendered the premises to the landlord, who in turn inducted the Defendant No.2 as tenant therein. Insofar as this fact is concerned, both the Courts below on analysing evidence on record have concurrently held that the Defendants failed to establish the same. That is the finding of fact, which cannot be overturned in exercise of writ jurisdiction. Once that finding of fact is found to be unexceptionable, it necessarily follows that the defence of the Defendant was unworthy of reliance. That defence will have to be discarded. The claim of the Plaintiff that the Defendant No.2 is unlawful subtenant will have to be upheld. Both the Courts below have closely appreciated the evidence which has come on record and concurrently found that the case made out by the defendants of surrender of premises by Defendant No.1 and later on induction of Defendant No.2 by landlord in the suit premises on 1st January, 1973 has been rejected. 4 4. The Defendants placed strong reliance on Exh. 37 and Exh. 38, which purported to be the receipts. Both the Courts below have found as of fact that the said documents do not indicate that it was passed on by the Plaintiff to the Defendant No.2 in recognition of the fact that it was a rent note or that the amount was paid towards rent of the premises as such. Moreover, the said documents being receipts are of the year 1978. If the said documents are of the year 1978, it will be of no value. Even if the said documents were to be relied upon, it would at best indicate that the amount was received by the Plaintiff in the year 1978. That does not take the matter any further. It would have been a different matter, if there was any other contemporaneous record to establish the factum that the Defendant No.2 was in fact in exclusive possession of the suit premises inducted therein prior to 1st February, 1973. Only in that situation even after rejecting the defence of the Defendant No.2, the Defendant No.2 would have succeeded in claiming that he had become direct tenant of the Plaintiff/landlord upon termination of tenancy of the Defendant No.1/original tenant. However, that is not the case on hand. 5. In the circumstances, no fault can be found 5 with the concurrent view taken by the two Courts below. Hence dismissed. (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J)