ssm sm sm 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. 376 OF 1994 PETITION NO. 376 OF 1994 PETITION NO. 376 OF 1994 Smt. Leelabai Maruti Holkar ....Petitioner. (Orig.Plaintiff) Vs. Smt.Chaturabai Siddheshwar Javeri ....Respondent. (Orig.Deft.No.1) Mr.G.M.Khambete for the Petitioner. Mr.S.M.Gorwadkar for Respondent Nos.1-G(A) to 1-G(C). CORAM CORAM CORAM : : : ANOOP V.MOHTA, J. ANOOP V.MOHTA, J. ANOOP V.MOHTA, J. DATED DATED DATED : 17TH DECEMBER, 2008. : 17TH DECEMBER, 2008. : 17TH DECEMBER, 2008. JUDGMENT:- JUDGMENT:- JUDGMENT:- The Petitioner has challenged the concurrent finding of fact arrived by both the Courts whereby, basic plea of the Petitioner-tenant, now her heirs, is rejected that she is tenant of the suit premises. Leelabai, Original-tenant was in occupation prior to 1986. The said room, in an old house made up of mud, in dilapidated condition, was collapsed on 04/10/1986. The Petitioner, therefore, filed a suit for mandatory injunction praying for directions to reconstruct the room for her. The suit was dismissed on 14th August, 1989. There is no provision or even otherwise whereby the landlord can be compelled to reconstruct the room ( 2 ) for the tenant in situation like this. The tenant can claim possession of the room only in case the landlord obtains a decree against the tenant under Section 13 (1) (kk) of the Bombay Rents, Hotel and Lodging House Rates (Control) Act, 1947 (for short, "The Bombay Rent Act"). The tenant, in a given case, may claim possession of the room if landlord construct in place of old one. There is no material to show that the landlord wants to reconstruct any premises on the first floor. The Courts, therefore, after considering even the material available on record, rightly dismissed the suit. 2. The Plaintiff herself never entered into a witness box. One Vijay Maruti, P.W.2 without placing anything on record including power of attorney, lead the evidence. The said witness admitted that there was no power of attorney given to him. The said witness also conceded in his cross-examination that since last 3 years, Plaintiff was not residing in the suit premises. 3. The Appellate Court also dismissed the Appeal, in view of the above facts and circumstances of the case. The learned counsel appearing for the Petitioner submit that the issue with regard to her tenancy rights was not considered by the Courts below, has force. As noted by ( 3 ) both the Courts, there is no merit in the contention raised as no relief as prayed in the suit could have been granted to the Petitioner-original Plaintiffs. In the present case, admittedly, the tenancy was of mud room of first floor. It is now totally collapsed. There is no structure whatsoever, standing thereon. There is no document to show that the alleged tenancy was of the land also. 4. The Supreme Court in Vannattankandy Ibrayi Vs. Vannattankandy Ibrayi Vs. Vannattankandy Ibrayi Vs. Kunhabdulla Kunhabdulla Kunhabdulla Hajee, (2001) 1 S.C.C. 564 Hajee, (2001) 1 S.C.C. 564 Hajee, (2001) 1 S.C.C. 564, held that the tenancy or such rights presupposes an existence of property. There could not be subsisting tenancy where the property is not in existence. In the present case also, as the room in question, as noted already, collapsed and extinguished, I see there is no such declaration can be granted of tenancy of the said room as claimed in the present case. There was no agreement, whatsoever, of land tenancy. 5. By the said Judgment, the Apex Court has overruled the Rubber Industries (P) Ltd. Vs. Tayebhai Rubber Industries (P) Ltd. Vs. Tayebhai Rubber Industries (P) Ltd. Vs. Tayebhai Mohammedbhai Mohammedbhai Mohammedbhai Bagasarwalla, AIR, 1996 Bom.389 Bagasarwalla, AIR, 1996 Bom.389 Bagasarwalla, AIR, 1996 Bom.389, upon which strong reliance has been placed by the learned counsel appearing for the Petitioner. As noted in the ( 4 ) circumstances of the present case itself, as the room was on first floor and there was no material to show that there was any tenancy created with regard to the land in question, the reliance of T.Lakshmipathi & Ors. T.Lakshmipathi & Ors. T.Lakshmipathi & Ors. Vs. Vs. Vs. P.Nithyananda Reddy & Ors., (2003) 5 S.C.C. 150 P.Nithyananda Reddy & Ors., (2003) 5 S.C.C. 150 P.Nithyananda Reddy & Ors., (2003) 5 S.C.C. 150 by the Petitioner is also of no assistance. In that case the lease was of the building with the land. This is not the case here. 6. In Shivram Ladu Nitardekar Vs. Alex Fernandes & Shivram Ladu Nitardekar Vs. Alex Fernandes & Shivram Ladu Nitardekar Vs. Alex Fernandes & Ors., Ors., Ors., 2006(1) Bom.C.R.846, 2006(1) Bom.C.R.846, 2006(1) Bom.C.R.846, same circumstances it is the residential premises collapsed and extinguished, held that the tenancy of such premises also extinguished. 7. Therefore, taking all this into account, the Petitioner is not entitled to the relief as claimed. The Petition, is therefore, dismissed. No order as to costs. ( ANOOP V. MOHTA, J.) ANOOP V. MOHTA, J.) ANOOP V. MOHTA, J.)