:1: :1: :1: 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 PETITION NO. 1299 OF 2008 Smt. Noorbanuben Mohammadbhai Lavji Daudani and Ors ...Petitioners Versus Shri. Aspi Hormusji Mubarkai ....Respondent ====== Mr.N.V.Gangal, Adv. for the petitioners. None for the respondents. CORAM: S.C.DHARMADHIKARI, J. DATED: 26TH FEBRUARY,2008. P.C. P.C. P.C. : : : 1. The petitioners are the original defendants in a suit for possession being Suit No.104 of 1995 filed in the court of Civil Judge Junior Division, Dahanu, District-Thane by the respondent/original plaintiff. The contention of the plaintiff is that the suit premises were occupied by the predecessor in title of the present petitioners, Mohammedbhai. The rent was settled at Rs.43/- per month. Earlier Reg.Civil Suit No.44 of 1994 was filed against Mohammedbhai and :2: :2: :2: Defendant nos.4 to 6 to the present suit. After filing of the suit it was discovered by the original plaintiff that the predecessor in title Mohammedbhai died and therefore to avoid technical problems that suit was withdrawn and the present suit was filed after seeking liberty in that behalf. 2. The suit claim was on the basis that the defendants are in arrears of rent. There are not using the suit premises for last 6 to 7 years for the purposes for which the same has been let out. That premises have ben sub-let by Defendant nos.1 to 3 to defendant nos.4 to 6 without any consent in writing from the landlord. The plaintiff terminated the tenancy by Notice to Quit dated 13.5.1995. 3. The suit was contested by respondent nos.1 to 3 who filed their written statement. The defendant nos.4 and 5 also filed their written statement but the heirs of deceased defendant no.5 remained absent throughout, although served with the summons. 4. The resistance to the suit was on the basis :3: :3: :3: that the suit claim is barred by resjudicata. There was an earlier suit being Reg.Civil Suit No.11 of 1969 which was filed by the father of the original plaintiff against deceased Mohammadbhai and that suit was dismissed. The claim in the present suit and that suit is identical. Further, the alleged subletting was denied and it is contended that defendant no.6 is not residing in the suit premises. 5. In the light of these pleadings, Issues were framed and the Trial Court rendered a finding that Issue No.1 about subletting is proved, Issue no.3 has been held to be not surviving in the light of the finding on Issue no.4 with regard to non-user. The plea of resjudicata has already been considered and rejected. 6. Aggrieved by this, the petitioner/original defendants filed an Appeal being Reg.Civil Appeal No.14 of 2000. 7. It is their contention that the lower Appellate court has while confirming that the suit :4: :4: :4: premises have been sublet, has at the same time rendered a finding in favour of the landlord-plaintiff on the issue of non-user. This finding could not have been rendered when there being no substantive Appeal or cross-objection. When such a finding has been rendered without any appeal or cross-objection it is not a mere irregularity but an illegality. 8. The second contention is that this very ground for evicting the deceased Mohammedbhai was raised but the trial court has not accepted the same in the earlier suit and the Appeal arising therefrom. The lower appellate court, to my mind committed no error in confirming the findings with regard to the other Issues and more particularly subletting. That finding is rendered on the basis that the deceased Mohammedbhai was a resident of Dongri, Mumbai. It was his case that he was intermittently coming to Dahanu for change of weather and climate. He was not residing there . Therefore, the presence of the other defendants is something which was naturally questioned. The defence taken in this behalf is contradictory and confusing to say the least. Earlier, it was contended that :5: :5: :5: defendant nos.4 and 5 are not sub-tenants of defendant nos.1 to 3 but they are residing in the suit premises as care-takers of defendant no.1. If the defendant no. 1 is not residing in the suit premises but visiting the same intermittently, there was no question of anybody residing as caretakers. The courts below have found that the status of the other defendants is that of helpers and servants. If the deceased defendant no.1 himself was permanently residing at Mumbai and used to come at Dahanu intermittently, then, the presence of the defendants other than defendant nos.1 to 3 is obviously a case where the premises have been allowed to be used and occupied by them without any consent and authority. When the plaintiff raised the Issue of sub-tenancy the defence is that there is no sub-tenancy but an independent right is conferred by law on Defendant nos.4 to 6. That is negatived and the case of caretakers and servants is also negatived by the courts below. The premises have thus been sub-let is the conclusion reached concurrently. 9. I am of the opinion that this is a clear case where the deceased tenant being not occupying and using :6: :6: :6: the premises as his residence, the other persons had no right to occupy the same. More so, after the deceased expired. The rights of the petitioners to occupy the same have been terminated by the Quit Notice and that is how the subsequent suit was filed. There is no question of the principle of resjudicata being applicable. 10. Thus the concurrent findings of fact rendered consistent with the materials produced on record, do not require any interference under Article 227 of the Constitution of India. More so, when they are not demonstrated to be perverse. Writ petition dismissed. 11. At this stage, Mr.Gangal prays for time to vacate. He submits that the premises were in occupation of the present petitioner for quite some time, at least, the occupation dates back to that of the deceased defendant no.1, Mohammedbhai. In the facts peculiar to this case and considering that the petitioners have to make an alternate arrangement, interest of justice would be subserved, if time is granted till 31.01.2009 on the petitioners filing an :7: :7: :7: Undertaking in this court within a period of 15 days from today in the following terms : 12. The petitioners confirm that they alone are in possession and will not alienate, encumber, part with possession or create any third party rights in respect of the suit premises, They will pay the Rent regularly to the respondents till the premises are handed over. Further, they will hand over vacant and peaceful possession of the suit premises after the time to vacate is over. 13. In default of the Undertaking, Decree to become executable forthwith. In default of the compliance of the terms of the Undertaking, the Decree is liable to be executed and if necessary with police assistance. sd/- **********