CRA. 281-11 - 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION No. 281 OF 2011 Shabbir & Bros. & Anr. ...Applicants Vs. Yacub Abdeali Electricwala ...Respondents *** Mr. A. N. Nasikwala, for the Applicants. Mr. P. S. Dani i/b Ms. J. P. Thakkar, for the Respondent. *** CORAM: V. M. KANADE J. DATE : JULY 13, 2011 P.C. 1. Heard the learned counsel appearing for the applicants and the learned counsel appearing for the respondent. Applicants are the original tenant and respondent is the original landlord. The landlord filed a suit for eviction against the tenant on various grounds. The trial court, however, passed a decree on the ground that the applicants had made a permanent construction by encroaching upon the common passage outside the suit premises by putting up the rolling shutter and therefore, it came to the conclusion that decree of eviction was liable to be passed CRA. 281-11 - 2 - under Section 16(1)(g) of the Maharashtra Rent Control Act, 1999. This order was confirmed in the appeal by the lower appellate court. 2. The learned counsel appearing on behalf of the applicants/original defendants/tenant submitted that orders passed by both the lower courts are perverse, since both the courts below have not taken into consideration the fact that there were no pleadings in the plaint in respect of removal of WC and putting of the rolling shutter. It is submitted that no material had been produced by the plaintiff to establish that the defendants had encroached upon the passage and had made permanent construction by putting up rolling shutter and enclosed the said passage. It is then submitted that Exh. 12(D) was produced by the applicants, which was a letter of permission granted by the landlord to put up rolling shutters. It is submitted that both the lower courts had not properly construed this permission which was granted by the landlord, and on the basis of conjectures and surmises held that the said permission was only for the purpose of putting up the rolling shutter in the premises, in possession of the tenant/applicants herein. Learned counsel for the applicants has also invited my attention to the cross- examination of the tenant which was recorded in the ‘question-answers’ form, in view of the order passed by this in a Writ Petition, which was CRA. 281-11 - 3 - filed by the plaintiff. 3. In my view, the submissions made by the learned counsel for the applicants cannot be accepted. Letter produced by the tenant at Exh. 12(D) clearly discloses that permission was granted only for the purposes of putting up the rolling shutter. It nowhere states that tenant was permitted to enclose the passage and carry out unauthorized construction by putting up rolling shutter. The submission made by the learned counsel for the applicants that the said letter amounted to permission being granted by the landlord, cannot be accepted. So far as other submission is concerned, I have perused cross-examination of the applicant in the ‘question-answer’ form and the applicant had in clear terms admitted that he had enclosed the passage and had put up rolling shutter, and even after it was removed by the Bombay Municipal Corporation, it was again reconstructed. 4. Both the courts have appreciated the evidence on record and have come to the conclusion that applicants have encroached upon the premises and were guilty of erecting a permanent structure without permission of the landlord. 5. While exercising limited jurisdiction under Section 115 of the Civil Procedure Code, this Court is not expected to re-appreciate the CRA. 281-11 - 4 - evidence on record and as an appellate court and arrive at a different conclusion. There is no jurisdictional error committed by both the courts below. It is, therefore, not possible to interfere with the concurrent finding of facts recorded by both the courts below. Civil Revision Application is, therefore, dismissed. 6. A decree passed by the trial Court, however, shall not be executed for a period of 8 weeks, subject to appellants filing an undertaking in usual terms, to enable them to challenge the order of this Court. [ V. M. KANADE J.]