1 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL REVISION APPLICATION NO.27 of 2010 Shri Kishor K. Trivedi ...Petitioner vs. Smt. Archana mangesh Udiaver & Ors. ...Respondents -- Mr.P.J.Thorat for the Applicant Mr.P.K.Shetty for the respondent no.1. -- CORAM :A.S.OKA,J. DATE : October 28, 2010 P.C.: 1 Heard the learned counsel for the applicant. The applicant is the original defendant no.13. The 1st respondent is the original plaintiff and the other respondents are the original defendants. The 1st respondent filed a suit claiming a declaration of tenancy in respect of a residential flat (hereinafter referred to as the suit flat) more particularly described in the 1st paragraph of the plaint. It is the case of the 1st respondent that the 1st defendant and his sister were in illegal possession of 3 rooms (shown as rooms A,B and C on the sketch annexed to the plaint) in the said flat and the 1st respondent -plaintiff was in exclusive possession of one room (shown as room D on the sketch annexed to the plaint). It is alleged that the 1st respondent along with the 1st defendant are in common use of the remaining portion of the said flat. It is alleged that one Shalinibai was the tenant in respect of the suit flat. According to the case of the 1st respondent, the 7th defendant trust is the landlord. The 8th to 11th defendants were at the relevant time the trustees of the 2 7th defendant trust. It is contended that during the pendency of the suit, the 12th of defendant purchased the building in which the said flat is situated from the 7th defendant. 2. According to the case of the 1st respondent, the said Shalinibai (hereinafter referred to as the deceased ) was the tenant in respect of the suit premises. She acquired tenancy in the year 1955. Initially rent receipts were being issued in the name of her brother. The 2nd to 6th defendants are the children of the said deceased. The husband of the 1st respondent is the nephew of the said deceased. The said Deceased died on the 25th January 1997. It is alleged that the 1st defendant was allowed by the said original tenant to occupy room C out of the said flat as a paying guest. It is stated in the plaint that the 1st defendant left the said room in the year 1984 and started occupying other two rooms (A and B) as a paying guest. Subsequently, the deceased allowed the 1st defendant to occupy the room C which he had earlier occupied as a paying guest. 3. The case of the 1st respondent -plaintiff is that on the request made by the original tenant, from April 1995, she started deciding with the deceased as a member of her family. It is stated that her name was incorporated in the nation card of the deceased, but the name of the 1st defendant was never incorporated in the nation card. After the demise of the deceased, the 1st respondent continued to occupy one room in the suit flat which is more particularly described in the 1st paragraph of the plaint. The 1st defendant started contending that he was residing in the suit flat as a member of the family of the deceased. The 1st defendant claimed tenancy rights on the ground that he was residing with the 3 deceased at the time of her death as a member of her family. Therefore, the suit was filed by the 1st respondent claiming declaration of tenancy. The suit was contested by the 1st defendant by filing written statement. The contention in the written statement was that the 1st respondent never resided in the suit flat as a member of the family of the deceased. According to the 1st defendant, and agreement of leave and license dated 1st January 1973 was executed by the deceased by which a license was granted to the 1st defendant in respect of rooms A and B against payment of license fees. The 1st defendant contended that by a writing dated 23rd January 1986, the deceased created a further license in respect of the room C. It must be noted here that the 1st defendant did not dispute the status of the deceased as a tenant. In fact the 1st defendant claimed tenancy rights on the demise of the deceased tenant being a member of her family deciding with her at the time of her death. The 2nd to 6th defendants are the children of the deceased original tenant who supported the plaintiff. The original landlords (7th to 11th defendants) denied that the said deceased was the tenant in respect of the suit flat and therefore denied the allegation that the 1st respondent was entitled to claim tenancy rights on the demise of the deceased. The 12th defendant adopted the written statement of 7th to 11th defendants. The 13th defendant (the revision applicant) filed a separate written statement in which it was contended that the 1st respondent was not related to the deceased and that she was not a member of the family of the deceased. The 13th defendant claimed to be in exclusive possession of the room over which the 1st respondent is claiming possession. It was contended that the 1st defendant was entitled to the tenancy rights in respect of suit flat and that the 13th defendant was residing with him at the 4 time of his death. It was contended that by a will executed by the 1st defendant, he made a bequest of his right, title and interest in the suit flat to the 13th defendant. 4. The parties adduced evidence. The Trial Court decreed the suit by holding that the deceased was the tenant in respect of the suit flat and that the 1st respondent acquired tenancy rights in respect of the suit flat being the member of the family of the deceased tenant residing with her at the time of death. The declaratory decree of the trial court was challenged only by the 13th defendant (the revision applicant). The appeal preferred by the applicant has been dismissed by the Appeal Bench of the court of small causes. 5. The learned counsel appearing for the applicant submitted that the rent receipt was never issued by the landlords in the name of the deceased. He submitted that neither the 1st respondent nor her husband had any relationship with the deceased. He submitted that the there was no evidence on record to prove the contention that the first respondent was residing in any portion of the suit flat along with the deceased. He submitted that at highest the said deceased was in possession of one room and even assuming that the case made out by the 1st respondent was correct, the said respondent can claim possession over in respect one room. He submitted that the first respondent has not established the right claimed by her. He submitted that the impugned judgments and decrees are illegal and perverse. The learned counsel appearing for the 1st respondent supported the impugned judgments and decrees. 6. I have considered the submissions. I have gone to 5 the pleadings and notes of evidence on record as well as the findings recorded by the courts below. There is no dispute between the applicant and the 1st respondent that the deceased was the tenant in respect of the suit flat. It is pertinent to note that both the 1st defendant and the applicant-13th defendant came out with the case that the deceased had executed a leave and license agreement on 1st January 1973 in favour of the 1st defendant in respect of the two rooms with right to use bathroom and toilet. It is alleged that in respect of 3rd room, the said deceased executed another license agreement in favour of the 1st defendant on 23rd January 1986.The applicant is claiming through the 1st Defendant and the 1st defendant claimed though the deceased. It must noted here that the legal representatives of the 1st defendant did not contest the suit. The finding of fact recorded by both the courts below is that the applicant failed to prove that as on 1st February 1973, the 1st defendant was occupying three rooms as a lawful licensee of the deceased . The 13th defendant failed to prove that the 1st defendant was a protected licensee of the deceased. The said contention could not be substantiated by the 13th defendant (the revision applicant). It is pertinent to note that apart from the fact that the applicant failed to substantiate the aforesaid plea, the legal representatives of the deceased supported the 1st respondent plaintiff. 7. Moreover, the Trial Court held that the defendants did not challenge the statement on oath of the 1st respondent that her husband was a nephew of the deceased. The name of the first respondent appears in ration card of the deceased. In the will of the deceased which was duly proved, the deceased has stated that the 1st respondent was residing with her as a member of her family. That is 6 how both the Courts have held that the 1st respondent became a tenant under section 5(11)(c) of the Bombay Rent Act. The declaratory decree passed in favour of the 1st respondent by the Trial Court was not challenged by the landlord. 8. It is not possible to interfere with the concurrent findings of fact recorded by the Courts below in revisional jurisdiction. The revision application is rejected. JUDGE