CRA. 257-11 - 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL WRIT PETITION No. 257 OF 2011 Mr. Salim Ahmed Siddiqui ...Applicant Vs. Mr. Sidney Petor Lobo & Ors. ...Respondents *** Mr. V. A. Thorat, Sr. counsel i/b A. R. Pande, for the Applicant. Mr. P. S. Dani i/b Denzil D’Mello, for Respondent No.1. *** CORAM: V. M. KANADE J. DATE : JUNE 13, 2011 P.C. 1. Heard the learned senior counsel appearing on behalf of the applicant and counsel appearing on behalf of respondent No.1. Applicant is the original defendant No.3. Respondent No.1 is original landlord. Respondent Nos. 2 and 3 are the legal heirs of original tenant. For the sake of convenience parties shall be referred to as the plaintiff and defendants. Applicant herein/ original defendant No.3 has filed the Civil Revision Application, challenging the order of eviction passed by the trial Court and which is confirmed by the lower appellate court. 2. Brief facts are as under- CRA. 257-11 - 2 - . The plaintiff had filed a suit for eviction against defendant No.3 on the ground that defendant Nos. 1 and 2 who are the original tenants of the plaintiff, and who had sublet the premises to defendant No.3 in July, 2005. In the plaint it was alleged that on 4th July, 2005 he was informed by his watchman that that the plaintiff’s lock on the ground floor grill gate was missing. He also noticed that defendant No.1 was not in the suit premises, and therefore, he lodged the complaint with the Mahim Police Station on that date at about 12.00 O’Clock, placing on record that somebody had tampered with his lock on the ground floor grill gate and he also received information from Mahim Police Station that two unknown persons claimed that they had purchased the suit premises from defendant No.1. Entire subsequent events were stated in the plaint, and therefore, a suit was filed for recovery of possession of the suit premises which consisted of a flat on the second floor of building, known as ‘Ellis Villa’, admeasuring about 800 sq. ft. area, on the ground that the plaintiff requires the suit premises reasonably and bona fide for his own use and occupation and also on the ground that defendant No.3 was illegally inducted in the suit premises. 3. Defendant No.3 filed written-statement and contended, firstly, that plaintiff had no authority to file the suit since he was a co- CRA. 257-11 - 3 - owner of the premises and the other co-owners were not joined as party to the suit, nor had they given any authority or consent to the plaintiff to file the suit in his individual name. Secondly, it was contended that defendant Nos. 1 and 2 who are the tenants, had been permitted by the landlord to assign or sublet or give on license the suit premises to any person and therefore, the said ground of illegal subletting is not available to the plaintiff. It was further contended that initially the plaintiff had agreed to transfer the tenancy by charging Rs. two lakhs and thereafter he had started demanding Rs. fifteen lakhs. When defendant No.3 refused to pay the said amount, plaintiff had filed the suit. The other allegations made by the plaintiff were denied. It was also contended that the Court did not have jurisdiction to try and decide the suit under the provisions of Maharashtra Rent Control Act, 1999. Both the parties have led evidence and the trial Court decreed the suit of the plaintiff and this order was confirmed in the appeal. 4. The learned senior counsel appearing for the applicant submits that suit filed by one of the co-owner was not maintainable. It is submitted that since defendant Nos. 1 and 2’s were tenant, inducted in 1940, prior to the Bombay Rent Act, 1947 coming into force. There is no bar in creating sub-tenancy. Thirdly, it was submitted that unless a relief CRA. 257-11 - 4 - of eviction was claimed against the original tenant on the ground of subletting, such a relief cannot be claimed against defendant No.3. 5. On the other hand, learned counsel for the respondent/ original landlord submitted that a specific case was made out by the plaintiff in the plaint. It was submitted that other co-owners had not stepped into the witness box or had given evidence to the effect that they had not authorized the plaintiff to file the suit and therefore, the submissions made by the learned senior counsel for the applicant could not be accepted. Secondly, it was submitted that even though tenancy was created in the year 1940, the Bombay Tenancy Act came into force in 1947 and thereafter in the old Act and new Act of 1999 there was an express prohibition of creating sub-tenancy or subletting the premises. It was submitted that in fact burden was on the tenant to establish that there was a contract and under the said contract specific permission was granted to create tenancy. It is submitted since no such specific permission was produced, therefore, both the courts below have rightly rejected the said contention of the defendant Nos. 1 and 2. 6. It is a well settled position in law that unless other co- owners take an express objection to the suit filed by the other co-owner, such a suit is maintainable by one of the co-owners. In the present case, CRA. 257-11 - 5 - admittedly, none of the other co-owners have taken objection to the filing of the suit. It is not the defendant No. 3’s case that he has purchased this flat with the consent of other co-owners. The said submission, therefore, in my view, cannot be accepted. 7. Secondly, so far as contention of the learned senior counsel for defendant No.3 that in view of the original tenancy being granted in the year 1940, the burden was on the plaintiff to establish that there was an agreement to the contrary. Said submission, In my view, also cannot be accepted, since after coming into force of the Bombay Rent Act, 1947 and the Maharashtra Rent Control Act, 1999 there is an express bar in respect of creation of sub-tenancy or subletting of the premises. If it is contention of the tenant that he has done so by virtue of permission being granted by the landlord, he has to prove this fact and burden is entirely on him. It is, therefore, not possible to interfere with the concurrent finding of facts recorded by both the courts below. Hence, Civil Revision Application is rejected. 8. Three months time is granted to the applicant to vacate the suit premises. The applicant, however, shall deposit the interim mesne profits of Rs.10,000/- per month till he vacates the suit premises. [ V. M. KANADE J.]