IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE WRIT PETITION NO.7195 OF 2004 Shri Ranjan Daniel Peter age 65 yrs. (Legal Heir of Late Smt. Lilabai Danial Peter now deceased) Retired Railway employee, residing at C/o. Smt. Gracebai Madhukar Choudhari, Christian Colony, Daund, Dist. Pune. ...Petitioner. Vs. Smt. Nirmala Vishwas Khamale age 47 yrs, occu.household, residing at near R.C.Church, Near Tambe Niwas, at & Post Daund, Dist. Pune. ... Respondent. Mr. Vishal Kasbekar with Ms. Duraiya Retiwala, for the petitioner i/b. Shri Jivan Goge. Mr. V.S.Gokhale, for the respondent. CORAM CORAM CORAM : A.A.Sayed, J. : A.A.Sayed, J. : A.A.Sayed, J. [ 2 ] Date Date Date : 19.12.2008 : 19.12.2008 : 19.12.2008 JUDGMENT 1. The above petition impugns the Judgment and order dated 17th July, 2004 passed by the Additional District Judge, Baramati in Regular Civil Appeal No.19 of 2001 whereby the appeal of the Respondent-tenant was allowed by setting aside the decree for eviction passed by the Trial Court on the ground of bonafide requirement of the petitioner-landlord. 2. The petitioner is the landlord of the suit premises viz. Block consisting of two rooms and sanitary portion, situate at CTS No. 75A/1-A/1A/1/18/1 at Daund district, Pune, of which the respondent is the tenant. The respondent is the sister of the petitioner. According to the petitioner, the property in which the suit premises is situate consists of three blocks. Out of those three blocks, one block is occupied by the petitioner’s brother Shri Shyamsunder and his family, second block by one [ 3 ] tenant Shri Suresh Naik and third block which is the suit premises, is occupied by the respondent and her family since 1988. The suit property originally belonged to late Smt. Lilabai Daniel Peter, the mother of the petitioner and respondent. The said Smt. Lilabai died on 16-08-1999 and had bequeath the suit property to the petitioner and her above-mentioned son Shyamsundar. 3. Late Smt. Lilabai was the original plaintiff in RCS No. 74 of 1997 filed for eviction, before the Court of the Civil Judge, J.D., Daund, Pune and she was residing with Shyamsundar and his family. The respondent was the original defendant in the said suit. By way of amendment to the plaint, the ground of requirement was added and it was averred in the plaint by late Smt. Lilabai that the petitioner, who is her son, was working with railways and was to retire shortly and he had no other accommodation and the suit premises was required by her bonafide to accommodate the petitioner and his family. The suit was ultimately decreed in favour of the petitioner (who had come on record [ 4 ] after the death of late Smt. Lilabai) vide Judgment and Order dated 24th July, 2001 and the respondent was held to be the tenant and she was directed to vacate the suit premises within three months. Being aggrieved by the said Judgment and Order, the respondent-tenant preferred an appeal in the District Court. The Appeal Court by the impugned judgment and order allowed the appeal, and set aside the Judgment and Order of the Trial Court. Hence, this petition by the petitioner-landlord. 4. At the Trial, the petitioner examined himself and one other witness. The petitioner had asserted his ownership in respect the suit property by virtue of the last Will dated 5.3.1997 executed by the deceased Smt. Lilabai in his favour. The said Will was however not exhibited during the evidence in the Trial Court. However, at the time of arguments, the Counsel for the respondent stated that the respondent did not dispute the ownership of the petitioner to the suit property. 5. It was also brought on record in the [ 5 ] evidence that the petitioner was to retire in the month of May, 2002 from his railway service and he would have to vacate the railway quarters which he was then occupying. The respondent during the course of her evidence also admitted that the petitioner was occupying railway quarters and was to retire in the year 2002. The Trial Court ultimately came to conclusion that since the petitioner was having no other premises and since he had to vacate the railway quarters, the petitioner’s need cannot be termed as malafide and that the same was bonafide. The Trial Court decreed the suit in favour of the petitioner and held that the petitioner would suffer greater hardship if the decree of eviction was refused and directed the respondent to vacate the suit premises. 6. The matter was carried in Appeal by the respondent. The Appeal Court, however, reversed the findings of the Trial Court on the ground that the family of the Petitioner consists of himself and his wife and the family of the respondent consists of herself, her husband and two sons and held that the need of the respondent is more and [ 6 ] if the decree of eviction is passed, she will be without accommodation and, therefore, the balance of comparative hardship lies in favour of the respondent. The Appeal Court has further held that though one tenement was vacated by one tenant, it was let out by the deceased plaintiff to some other tenant during the pendency of the suit and, the deceased plaintiff was never in need of the suit premises for her use and occupation. The Appeal Court has also discussed in its judgment, the Will dated 5.03.1997, which was produced on record. The Appeal Court observed that the petitioner has not examined any attesting witness to the Will as required under Section 68 of the Evidence Act and in absence of such examination of attesting witness, the Will cannot be held to be proved and, therefore, in such circumstances, it has to be held that the deceased Smt. Lilabai died intestate and consequently the respondent was equally entitled to inherit the property on the death of Lilabai, therefore, the capacity of the respondent was two-fold i.e. one as tenant and second as the owner. It was therefore held by the Appeal Court that the petitioner could not have claimed the possession [ 7 ] of the suit premises in his capacity as owner against the respondent who was also the owner of the suit property. The appeal court, on the basis of the above findings set aside the decree of eviction. 7. I have heard the learned Counsel for the parties and have gone through the material on record including the Judgment of the Trial Court as also the impugned order of the Appeal Court. At the outset it is required to be noted that at the initial stage when the petitioner came on record after the death of Smt. Lilabai, the title of the Petitioner was challenged and an additional written statement was filed to that effect by respondent. At the time of trial, however, a specific statement came to be recorded of the Counsel on behalf of the respondent, that the respondent was not denying the title of the petitioner and the question of title to the suit property was not the point in controversy in the matter. Thus the concession was clearly made by the Counsel for the defendant in the Trial Court and therefore, the title/ownership of the suit property could not be said to be in dispute. In [ 8 ] the memo of appeal filed by the respondent, no ground regarding the title of the petitioner has been taken. This being the position, the controversy regarding title was put to rest in so far as the respondent was concerned. 8. The Appeal Court, in my view, had clearly erred in adjudicating this issue inasmuch as this issue regarding the ownership/ title of the suit property was not before the Appeal Court at all and, therefore, it was not required to be adjudicated. Pertinently, there is no discussion in the Appeal Court’s judgment about the "concession" which was accorded by the counsel of the respondent and which was recorded by the Trial Court and this fact has been completely overlooked by the Appeal Court. In other words, once the respondent had accepted the title of the petitioner to the suit property, the Appeal court ought not to have gone into this issue at all and refrained itself from expressing any opinion regarding the title to the suit property. The Appeal Court has, therefore clearly erred in dealing with the issue of title of the suit property. The observations and findings of the [ 9 ] Appeal Court regarding the title/ownership of the suit property are thus required to be set aside and are accordingly set aside. Consequently, the finding of the Appeal Court that the petitioner could not have claimed possession of the suit premises in his capacity as owner against the respondent who was also the owner of the suit property, is also set aside. The position in law that concession of a fact by Counsel on behalf of any party is binding on the party, is well settled. The reliance by the counsel for respondent on the Division Bench Judgment of Calcutta High Court in the case of FOOD CORPORATION OF INDIA VS. BIRENDRA NATH DHAR, reported in AIR 1989 NOC 119 is of no help to the respondent inasmuch as the controversy in that case was in respect of a contract and the court held that when the original contract was before the Court, there was no question of admission of the defendant on the lawyer’s concession. 9. In so far as the issue of hardship is concerned, as stated above, the Appeal court has held that since the family of the petitioner consists only of himself and his wife and that of [ 10 ] the respondent consist of herself, her husband and two sons and, therefore, the need of the respondent was more and if the decree of eviction is passed she will be thrown out on road and she is not having any alternate accommodation and therefore the balance of comparative hardship was in favour of the respondent. The respondent had examined herself and one Mr. Raju Shinde. It was deposed that 2 months before the evidence in the trial Court, out of the three blocks in the suit property, the block occupied by the tenant Shri Naik was vacated and same was lying locked. This fact was, however, categorically denied by the petitioner in his deposition. Merely making such statement in the evidence and in absence of any proof having been brought on record before the Court regarding alleged surrender of the block occupied by said Shri Naik, it cannot be said that the said block of tenant Shri Naik was available to the petitioner. In fact the petitioner has categorically deposed that the tenant Shri Naik was continuing to reside in the said block. The Appeal Court had therefore clearly erred in relying upon the deposition of the respondent that the block was vacated by Shri Naik and was [ 11 ] available to the petitioner. Pertinently, neither in the written statement nor in any additional written statements filed by the respondent, it is alleged that the block of Shri Naik was vacated by him. Nor was the said Shri Naik examined by the respondent. Merely by making such bald statement in the evidence that two months earlier the tenant Shri Naik has vacated the block, the version of the respondent cannot be accepted, more particularly when there is no such pleading in respect thereof. It is a settled law that evidence which is inconsistent with the pleadings is to be ignored. The Appeal Court was clearly in error in observing that one Naik was residing at the time of filing of suit and that on the day of evidence Naik has also vacated the said tenement. The findings by the Appeal Court in respect of availability of the block of Shri Naik are without any basis or proof and are therefore required to be set aside and accordingly set aside. Significantly, and as rightly pointed out by Counsel of the petitioner, though the present petition discloses "care of" address of the petitioner, no reply has been filed by the respondent controverting the case of the [ 12 ] petitioner that the petitioner is at the mercy of his friend for shelter. It is further required to be noted that in the cross-examination (pg.19) of the respondent, she has clearly admitted that except the property in question, the petitioner does not have any other place of his own in Daund district. It has to be borne in mind that the petitioner is the owner and landlord of the suit premises and is the best judge of his requirement. It is to be further noted that nowhere it is stated in the evidence of the respondent that any efforts were made by her to secure alternative accommodation. 11. The learned Counsel for the petitioner placed reliance on the following decisions viz:- (1)AIR (1)AIR (1)AIR 2000 Supreme court, 534 in the case of 2000 Supreme court, 534 in the case of 2000 Supreme court, 534 in the case of RAGHAVENDRA RAGHAVENDRA RAGHAVENDRA KUMAR VS. FIRM PREM MACHINERY & CO. KUMAR VS. FIRM PREM MACHINERY & CO. KUMAR VS. FIRM PREM MACHINERY & CO. (2) (2) (2) 2000 Vol. 102(1) BOM.L.R. 95 (S.C.) in case 2000 Vol. 102(1) BOM.L.R. 95 (S.C.) in case 2000 Vol. 102(1) BOM.L.R. 95 (S.C.) in case of of of RAGHUNATH G. PANHALE (DECEASED) BY LRs VS. RAGHUNATH G. PANHALE (DECEASED) BY LRs VS. RAGHUNATH G. PANHALE (DECEASED) BY LRs VS. CHHAGANLAL CHHAGANLAL CHHAGANLAL SUNDARJI & CO. (3) 1999(3) BOM.C.R. SUNDARJI & CO. (3) 1999(3) BOM.C.R. SUNDARJI & CO. (3) 1999(3) BOM.C.R. 543 543 543 (S.C.) (S.C.) (S.C.) in case of DATTATRAYA LAXMAN KAMBLE VS. in case of DATTATRAYA LAXMAN KAMBLE VS. in case of DATTATRAYA LAXMAN KAMBLE VS. ABDUL ABDUL ABDUL RASUL MOULALI KOTUNE AND ANR (4) (1999) 1 RASUL MOULALI KOTUNE AND ANR (4) (1999) 1 RASUL MOULALI KOTUNE AND ANR (4) (1999) 1 SCC SCC SCC 141 141 141 in case of RAM NARAIN ARORA VS. ASHA RANI in case of RAM NARAIN ARORA VS. ASHA RANI in case of RAM NARAIN ARORA VS. ASHA RANI & ORS. ORS. ORS. (5) (1998) 3 SCC 341 in case of RENA DREGO (5) (1998) 3 SCC 341 in case of RENA DREGO (5) (1998) 3 SCC 341 in case of RENA DREGO [ 13 ] (MRS.) (MRS.) (MRS.) VS. VS. VS. LALCHAND SONI & ORS. (6) (1996) 5 SCC LALCHAND SONI & ORS. (6) (1996) 5 SCC LALCHAND SONI & ORS. (6) (1996) 5 SCC 344 344 344 in case of MEENAL EKNATH KSHIRSAGAR VS. in case of MEENAL EKNATH KSHIRSAGAR VS. in case of MEENAL EKNATH KSHIRSAGAR VS. TRADERS TRADERS TRADERS & AGENCIES & ANR (7) (1999) 4 SCC 1 in & AGENCIES & ANR (7) (1999) 4 SCC 1 in & AGENCIES & ANR (7) (1999) 4 SCC 1 in case case case of DATTATRAYA LAXMAN KAMBLE VS. ABDUL RASUL of DATTATRAYA LAXMAN KAMBLE VS. ABDUL RASUL of DATTATRAYA LAXMAN KAMBLE VS. ABDUL RASUL MOULALI MOULALI MOULALI KOTKUNE & ANR. (8) (1999) 6 SCC 222 in KOTKUNE & ANR. (8) (1999) 6 SCC 222 in KOTKUNE & ANR. (8) (1999) 6 SCC 222 in case case case of SHIV SARUP GUPTA VS. DR. MAHESH CHAND of SHIV SARUP GUPTA VS. DR. MAHESH CHAND of SHIV SARUP GUPTA VS. DR. MAHESH CHAND GUPTA GUPTA GUPTA (9) 1972 BLR (VOL.LXXIV) in case of (9) 1972 BLR (VOL.LXXIV) in case of (9) 1972 BLR (VOL.LXXIV) in case of KISHINCHAND KISHINCHAND KISHINCHAND MUJRIMAL VS. BAI KALAVATI HANSRAJ MUJRIMAL VS. BAI KALAVATI HANSRAJ MUJRIMAL VS. BAI KALAVATI HANSRAJ DWARKADAS DWARKADAS DWARKADAS (10) (2005) 4 SCC 191 in case of MANOJ (10) (2005) 4 SCC 191 in case of MANOJ (10) (2005) 4 SCC 191 in case of MANOJ KUMAR KUMAR KUMAR AND ANOTHER VS. MUNNI DEVI (11) (2005) 4 AND ANOTHER VS. MUNNI DEVI (11) (2005) 4 AND ANOTHER VS. MUNNI DEVI (11) (2005) 4 SCC SCC SCC 194 194 194 in case of COMMISSIONER OF CENTRAL EXCISE, in case of COMMISSIONER OF CENTRAL EXCISE, in case of COMMISSIONER OF CENTRAL EXCISE, TRICHY TRICHY TRICHY VS. GRASIM INDUSTRIES LTD. (12) AIR 2005 VS. GRASIM INDUSTRIES LTD. (12) AIR 2005 VS. GRASIM INDUSTRIES LTD. (12) AIR 2005 SC SC SC 2369 in case of NARENDER VS. PRADEEP KUMAR 2369 in case of NARENDER VS. PRADEEP KUMAR 2369 in case of NARENDER VS. PRADEEP KUMAR (13) (13) (13) AIR AIR AIR 2004 SC 1930 in case of P. SURYANARAYANA 2004 SC 1930 in case of P. SURYANARAYANA 2004 SC 1930 in case of P. SURYANARAYANA (D) (D) (D) by LRs Vs. V.K.S.MUDDUGOWRAMMA (14) (2004) 3 by LRs Vs. V.K.S.MUDDUGOWRAMMA (14) (2004) 3 by LRs Vs. V.K.S.MUDDUGOWRAMMA (14) (2004) 3 SCC SCC SCC 589 in case of P. SURYANARAYANA (DEAD) BY LRs 589 in case of P. SURYANARAYANA (DEAD) BY LRs 589 in case of P. SURYANARAYANA (DEAD) BY LRs VS. VS. VS. K.S.MUDDUGOWRAMMA. K.S.MUDDUGOWRAMMA. K.S.MUDDUGOWRAMMA. 12. On the other hand, the learned Counsel for the respondent placed reliance on the following decisions viz:- (1) AIR 1989 NOC 119 (CAL) in case (1) AIR 1989 NOC 119 (CAL) in case (1) AIR 1989 NOC 119 (CAL) in case of of of FOOD CORPORATION OF INDIA VS. BIRENDRA NATH FOOD CORPORATION OF INDIA VS. BIRENDRA NATH FOOD CORPORATION OF INDIA VS. BIRENDRA NATH DHAR DHAR DHAR (2) (1983) 4 SCC 566 in case of MOHD. UNUS (2) (1983) 4 SCC 566 in case of MOHD. UNUS (2) (1983) 4 SCC 566 in case of MOHD. UNUS VS. VS. VS. MOHD. MUSTAQIM AND OTHERS. MOHD. MUSTAQIM AND OTHERS. MOHD. MUSTAQIM AND OTHERS. Both the rulings would not be applicable in the facts of the [ 14 ] present case. Insofar as the first ruling is concerned, I have already discussed the same in para No. 8 hereinabove. As far as the second ruling is concerned, since the findings of the Appeal Court are not based on the evidence on record, the same also would be of no assistance to the respondent. 13. In view of the aforesaid discussion and taking into consideration the facts and the circumstances of the case, I am satisfied that the findings arrived at by the Appeal Court are erroneous and perverse. The Appeal Court has proceeded on incorrect assumptions in reversing the findings of the Trial Court. The requirement of the petitioner in my opinion is bonafide and reasonable and his need cannot be said to be fanciful or a mere desire; more hardship would be caused to the petitioner in refusing to pass the decree for eviction. The impugned Order of the Appeal Court therefore cannot be sustained and is required to be quashed and set aside and the judgment and order of the Trial Court is required to be restored. The Petition deserves to be allowed. Hence, I pass the following the order :- [ 15 ] ORDER (1) The petition is allowed and rule is made absolute with no order as to costs. (2) The impugned Judgment and Order of the Appeal Court dated 17.07.2004 is hereby quashed and set aside. The Judgment and Order of the Trial Court dated 24.07.2001 is restored and confirmed. (3) The respondent is directed to vacate the suit premises by the end of June, 2009 on the usual undertaking not to part with, etc. being filed by her in this Court on or before 19.01.2009. In the event the the undertaking is not filed in the stipulated period the petitioner shall be free to execute the decree. (4) No order as to costs. [A.A.Sayed, J.]