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.7160 OF 2008 PETITION NO.7160 OF 2008 PETITION NO.7160 OF 2008 Mr.Prakash S.Khanvilkar ...Petitioner Vs. Khatija Abu Bakar Yahoo Muktiyar Ajij Abu Bakar Yahoo & Ors. ...Respondents. Mr.P.M.Pradhan i/by Mr.C.S.Joshi for the Petitioner. Mr.A.P.Ranade for the Respondents. CORAM CORAM CORAM : ANOOP V.MOHTA, J. : ANOOP V.MOHTA, J. : ANOOP V.MOHTA, J. DATED DATED DATED : 20th October, 2008. : 20th October, 2008. : 20th October, 2008. P.C. P.C. P.C. . The Petitioner has challenged the concurrent findings whereby the Trial Court on the ground of default of non-payment of rent regularly, granted the eviction decree and confirmed by the Appellate Court. 2. The basic submission is that the tenancy was yearly and the landlord-Respondent never issued receipts of rent paid for more than 15 years. The suit is filed by the landlord on the ground of default of non-payment of rent for more than 6 months. It is specifically contended that the Petitioner-tenant paid the rent regularly as per the agreed practice. The ( 2 ) burden lies upon, therefore, the Petitioner to prove the same in the present case. Mere submission that the rent receipts were not issued and the rent tenancy was yearly, just cannot be accepted, on the oral evidence, that the tenancy is yearly as per the agreement between the landlord and tenant is unacceptable. The yearly tenancy need specific documents and registration also. Therefore, though the evidence is laid by the tenant of other witnesses, still it is difficult to accept those witnesses on the point of tenancy being yearly. 3. In the demand notice, the landlord specifically mentioned the arrears since 1999 to 2001. To that the answer was that, the rent was paid up to date but there was no rent receipt issued and therefore, there is no arrears on the date of filing of the suit. The reply to the said demand notice makes position very clear that the Petitioner agreed to send the said arrears by money order. But there was no such payment was made. The fact remains that the tenant petitioner was in arrears. The procedure as contemplated under the Transfer of Property Act with regard to such yearly tenancy is also very clear. ( 3 ) 4. Taking all this into account, I see there is no reason to interfere with the concurrent findings given by both the Courts. If the tenant is not willing and paying the rent regularly, he definitely falls within the ambit of basic concept of "habitual defaulter". Once habitual default is proved, I see there is nothing wrong in passing the decree and eviction as passed. 5. In view of this, the Petition is dismissed. 6. The learned counsel appearing for the Petitioner seeks stay of this order. The stay is granted till 17/11/2008. ( ANOOP V. MOHTA, J.) ANOOP V. MOHTA, J.) ANOOP V. MOHTA, J.)