1 Ash IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1768 OF 1996 Shri Ramchandra Damodar Wageskar, ) Aged adult, Occupation – Service, ) resident of 115, Koregaon Park, Pune – 1. ).. Petitioner (Org.Defendant No.2) Versus 1. Shri Ramgopal Ganpatrai, HUF by ) Karta, Balkrishna Ramgopal Ruia, ) since deceased legal heirs, ) 1A) Hirendrakumar Balkrishna Ruia, ) R/o. 115, Koregaon Park, Pune – 1 ) Dist : Pune. ) 2. Shri Madhusudan Nair. ) (Dismissed as per Registrar Judl-I’s ) order dt. 26.7.2004.) ).. Respondents -- Shri Rahul S. Kate for the Petitioner. Shri S.R. Ganbavale i/by M/s. Sarkar & Sarkar for for Respondent No.1-A. -- CORAM : A.S.OKA, J. DATE : 6TH APRIL, 2010 ORAL JUDGMENT : . Heard learned counsel appearing for the Petitioner and the learned counsel appearing for Respondent No.1-A. The original 1st Respondent is the Plaintiff. The 2nd Respondent is the 1st Defendant and 2 the Petitioner is the 2nd Defendant. The 1st Respondent filed a suit for eviction against the 2nd Respondent and the Petitioner. It is alleged in the suit that the 2nd Respondent is the tenant who was in arrears of rent for a period of more than six months. A notice dated 11th March, 1985 was issued by the 1st respondent to the 2nd Respondent calling upon him to pay the arrears. The notice issued by the RPAD was returned unserved. A copy of the notice sent under Certificate of Posting was not received back. The 1st ground of eviction is arrears of rent. The 2nd ground is of non-user and third ground is of the unlawful subletting in favour of the Petitioner. It appears that the 2nd Respondent did not contest the suit. The Petitioner denied in the Written Statement that he was an illegal sub-tenant. A case was made out in the Written Statement that the 2nd Respondent vacated the suit premises in the year 1969 and subsequently Respondent No.1 inducted the Petitioner as a licensee in the year 1960-70 on accepting the deposit of Rs.2,000/- It is stated that thereafter the Petitioner started remitting rent to the 1st Respondent but instead of issuing rent receipts in the name of the Petitioner, the 1st Respondent continued to issue rent receipts in the name of the 2nd Respondent. Thus, the case made out in the Written Statement is that the 1st Respondent inducted the Petitioner in the year 1969-70 as a licensee and thereafter he used to accept the rent from the Petitioner. 2. The findings of the Courts below is that the Petitioner failed to establish his status as a tenant inducted by the 1st Respondent and 3 therefore, the case of the 1st Respondent that the 2nd Respondent has unlawfully transferred the suit premises to the Petitioner has been accepted. The Appellate Court has also passed a decree on the ground of arrears of rent and non user. 3. The learned counsel appearing for the Petitioner submitted that the 1st Respondent did not step into the witness box and therefore, adverse inference ought to have been drawn. He stated that the 1st Respondent has chosen to examine his Constituted Attorney who was working with the 1st Respondent for a period of eight years. He pointed out that a specific admission to that effect has been given by the said Constituted Attorney in the evidence recorded on 16th December, 1992 and thus, the Constituted Attorney has no knowledge as to what has transpired prior to the year 1983-84. He submitted that this was a case of no evidence as the only witness examined had no personal knowledge about the facts of the case. He submitted that the Petitioner has in his possession the rent receipts from the year 1969 and, therefore, the findings of the Courts below of unauthorized subletting are perverse. He submitted that there is no basis for the finding on issue of subletting. 4. I have given careful consideration to the submissions. The case made out by the 1st Respondent in the plaint was that the Petitioner was in possession as the unauthorized sub-tenant inducted by the 2nd Respondent. The Petitioner accepted that he was in possession of the suit 4 premises. Once a landlord establishes that a person other than the tenant is in possession, the burden shifts on the tenant to show in what capacity a stranger is occupying the suit premises which are let out by the landlord. In the present case, the Petitioner came out with a case that he was inducted as the tenant after the 2nd Respondent who was admittedly a tenant surrendered the premises to the 1st Respondent. 5. The burden to establish surrender by the 2nd Respondent and subsequent creation of tenancy in favour of the Petitioner was certainly on the Petitioner. In the deposition, the Petitioner initially came out with a case that he was occupying the suit premises in the year 1964 as a tenant. He corrected himself by subsequently stating that he was residing in the suit premises since the year 1970. He stated that he has obtained the suit premises on rent from the 1st Respondent and at the time of creation of tenancy, one Shri Ganpatrai Sharma, the Manager of the 1st Respondent was present. Thereafter, he stated that the 2nd Respondent/Original tenant left the suit premises in the year 1969. In the cross-examination, the Petitioner came out with a case that the 2nd Respondent handed over the possession to Shri Ganpatrai Sharma, who was the Manager of the 1st Respondent. He stated that the said Sharma used to issue rent receipts to the tenants including the Petitioner. He stated that though there was electricity connection in the suit premises in his name, he was unable to tell in which year he has obtained the electricity meter. In the cross- examination, the Petitioner was unsure whether he had paid the deposit 5 amount in the year 1969 or in the year 1970. In the further cross- examination, he has stated that after obtaining the suit premises, he started paying rent to Ganpatrai Sharma who used to pass rent receipts in his favour. He stated that the rent receipts were in his possession. Later on, the Petitioner stated that in beginning rent receipts were issued in the name of the 2nd Respondent. 6. It must be noted here that in the written statement and in particular in Clause (a) of Paragraph 7, the Petitioner came out with a case that after the 2nd Respondent vacated the suit premises, he was inducted by the 1st Respondent as a licensee. Thereafter, he has stated that he was remitting the rent to the 1st Respondent but the rent receipts were not issued in his name, notwithstanding the request made by him. The suit was filed in the year 1989. From the year 1969-70, there is no correspondence made by the Petitioner with the 1st Respondent or there is no demand made in writing for issuing rent receipts. The case made out in deposition regarding induction in the suit premises as a tenant also appears to be inconsistent. Moreover, in the cross-examination, the Petitioner admitted that the said Ganpatrai Sharma, the Manager of the 1st Respondent used to pass rent receipts and that the Petitioner was in possession of the receipts. The findings of the Courts below show that no such rent receipts were issued to the Petitioner. Considering the evidence adduced by both the parties, the Courts below have concurrently held that the Petitioner failed to establish his case that he was inducted as a tenant 6 of the suit premises after the 2nd Respondent surrendered the possession. The Petitioner was admittedly in possession. He being a stranger, the burden was on him to show in what capacity he was occupying the suit premises. The concurrent findings based on appreciation of the evidence on record are that the Petitioner failed to substantiate the plea of creation of tenancy. That is how the Courts below have accepted the case of the 1st Respondent that the 2nd Respondent- tenant allowed the Petitioner to unlawfully use the suit premises and there is unlawful transfer in favour of the Petitioner. It is not possible to find fault with the concurrent findings recorded by the Courts below on this aspect. Thus, the decree on the ground of unauthorized subletting deserves to be confirmed. 7. The 2nd Respondent is the tenant who has not chosen to challenge the decree on the ground of non-user and arrears of rent. In any event, the decree passed on the ground of subletting was fully justified and no interference is called for in writ jurisdiction under Article 227 of the Constitution of India. 8. The Writ Petition is rejected. The rule is discharged with no order as to costs. 9. The learned counsel appearing for the Petitioner prays for continuation of the interim relief. The said prayer is opposed by the learned counsel appearing for the legal representatives of the 1st 7 Respondent. The decree for possession shall not be executed for a period of 12 weeks from today subject to condition that the Petitioner will not create any third party interests and will not part with possession of the suit premises. (A.S.OKA, J)