1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2405 OF 1994 Ranganath Chintaman Chonkar (deceased) through his legal heirs Smt.Rajani Ranganath Chonkar & Ors. .. Petitioners versus Moreshwar Sadashiv Dandekar (deceased) through his legal heirs Nathuram Sadashiv Dandekar & Ors. .. Respondents Mr.G.R.Agrawal for the petitioners. Mr.K.N.Kore for respondent No.3. CORAM : A.S.OKA, J. DATE : 27th April 2010. JUDGMENT: . By this writ petition under Article 227 of the Constitution of India, the legal representatives of the original defendant-tenant have taken an exception to the judgment and decree passed by the trial Court for eviction under section 13(1)(l) of the Bombay Rents, Hotel and Lodging Rates (Control) Act, 1947 (hereinafter referred to as the said Act) which has been confirmed in appeal by the District Court. For the sake of convenience, the parties are hereinafter referred to in accordance with their title before the trial Court. 2 2. The suit premises is a room admeasuring 16’ 6” X 5’ 6” and adjoining `padvi’ admeasuring 6’ 6” X 5’ 6” in House No.490 situated within the limits of Panvel Municipal Council. The suit premises was let out to the defendant-tenant for residential use. The suit was filed by the plaintiff on various grounds. The first ground was of carrying out construction of permanent nature in the suit premises and carrying out additions and alterations of permanent nature. The second ground was of nuisance and annoyance. The third ground was of acquisition of house on ownership basis in village Karanjade, Taluka Panvel, District Raigad. It is contended that the plot on which the house has been constructed was acquired by the defendant, but with a view to defeat the right of the landlord of claiming possession, the tenant has ensured that the property is registered in the Village Panchayat record in the name of the son. It is alleged that the defendant-tenant along with his family members has shifted to the said accommodation. In the written statement filed by the defendant, the averments made in the plaint were denied. In the written statement it was stated that the defendant was employed at Bhandup in Mumbai but his wife and children were residing the suit premises. There was an additional written statement filed by the defendant in which a contention was raised that the defendant has not acquired any house property at village Karanjade. It was contended that the 3 defendant’s son Raju from his own income has acquired a small room at village Karanjade. It was contended that facility of drinking water and toilet is not available to the said room and that it is away from the city of Panvel. It was further contended by the defendant that a portion of ceiling of the suit premises has come down and therefore the defendant was forced to stay in the room of his son at village Karanjade. It is stated that considering the fact that the defendant has wife, two sons and a daughter, premises at Karanjade was not at all suitable. 3. The trial Court passed a decree for possession. The decree was passed by the trial Court on the ground of acquisition of suitable residence and carrying out permanent construction. In the appeal preferred by the legal representatives of the defendant, the decree has been confirmed only on the ground of acquisition of suitable residence under section 13(1)(l) of the said Act. 4. The learned counsel appearing for the legal representatives of the defendant submitted that the burden was on the plaintiff-landlord to establish that the acquisition was by the defendant himself. He submitted that even according to the case made out by the plaintiff in the plaint the premises at village Karanjade were standing in the 4 name of Raju, a son of the defendant. He pointed out that admittedly Gram Panchayat record shows Raju as the owner of the said property. He submitted that there was no evidence adduced by the plaintiff-landlord to show that the acquisition was by the defendant himself. He submitted that acquisition of the premises at village Karanjade by the defendant’s son from his own income cannot be termed as acquisition by the defendant. He submitted that there is evidence on record to show that the ceiling of the suit premises had come down and that is why initially the defendant was forced to acquire rental premises at nearby village Khanda and thereafter he was forced to shift to the room premises of his son at village Karanjade. He submitted that the fact that the tenant was forced to stay in his son’s house as the plaintiff had not carried out tenantable repairs is no ground to come to a conclusion that the premises at village Karanjade has been acquired by the defendant. He submitted that it is not the case of the defendant that there was any sale deed executed in respect of the plot of land on which premises of his son are situated. He submitted that in fact the construction of the premises on the said plot was unauthorised and there is no vesting of the plot even in favour of the son of the defendant. He pointed out that material is placed on record in writ petition to shows that now the family of the tenant is residing in the suit premises. In fact now his 5 ration card also stands at the address of the suit premises. He relied upon the voter’s list of the year 1995 and 2009. He, therefore, submitted that the findings on the issue of acquisition of suitable residence recorded by the Courts below were perverse. He has placed reliance on various decisions of this Court and Apex Court which are dealt with in the latter part of this judgment. The learned counsel appearing for the legal representatives of the plaintiffs supported the impugned judgments and decrees. 5. I have carefully considered the submissions. The learned counsel appearing for the petitioners/legal representatives of the defendant has taken me through the pleadings and notes of evidence. The specific stand of the defendant in the written statement is that his son Raju has out of his own income taken a small room at village Karanjade which is far away from the city of Panvel and which does not have facility of drinking water and toilet. The other contention raised is that the ceiling of the suit premises has come down and therefore the defendant-tenant is forced to stay in his son’s premises at village Karanjade. Even assuming that the said factual contention that the ceiling of the suit premises had come down is correct, the same is not relevant as a defence to ground under section 13(1)(l) of the said Act. At highest it may be a defence to the 6 ground of non-user under clause (k) of section 13(1) of the said Act. The real question is whether the acquisition is by the defendant or by his son Raju. The plaintiff in paragraph 5 of his examination-in-chief stated that he visited the house at Karanjade which consists of four to five rooms and courtyard, both, on front and rear side. He stated that though the construction was single storied, there were lofts in the house used as mezzanine floor. He stated that the house has all the facilities and the defendant was staying in the said house along with his family members. The tenant stepped into witness box. He admitted that his ration card was at the address of village Karanjade. He also admitted that his name was shown in the ration card as head of the family in which names of his wife, sons and daughter were entered. He stated that there is a living room after the entrance of the said house and there was another room on the right hand side. He stated that there was a bathroom available in the said house. He stated that he was not aware as to who was the owner of the land under the said house. He stated that open land was purchased and then the house was constructed. He stated that foundation was constructed two years back and within four to five months thereafter the house was constructed and since then his family is residing in the said house. He stated that prior to that he was living in the house of one Mahadev at village Khanda and he had taken the said premises 7 on rental basis. He stated that only after completion of house at Karanjade, the family left the house at Khanda and started living at Karanjade. He specifically stated that his entire family shifted at the house at Karanjade. Perusal of English as well as Marathi versions of deposition clearly shows that witness stated that legal advice was sought prior to purchasing the property at Karanjade. He stated that he was unable to remember from whom the sale deed was got scribed. He, however, stated that it was written by one of the panchas of village Karanjade. A question was asked to him in cross- examination as to whether he was in position to produce the sale deed. His response was that he will have to consult his son on production of the sale deed. He stated that he cannot assign any reasons as to why the sale deed was not produced. He denied the correctness of the suggestion that he has not produced the sale deed because the land stands in his name. He stated that he was employed as an operator in cinema theatre where he was getting salary of Rs.1100/-per month and allowance of Rs.6/- per day. He stated that he received a sum of Rs.15,000/- to Rs.20,000/- by way of retirement benefits. In the latter part of the cross-examination he admitted that the house consists of three rooms but came out with a case that there is no water supply to the house. 8 6. Thus, the admitted position is that the defendant had taken a premises on rent at village Khanda. After construction of the house at village Karanjade, the entire family shifted to the house in village Karanjade. The ration card of the defendant stood at the said address and his name appeared as the head of the family. It is not disputed that the defendant along with family members shifted to the said house. The case made out by the defendant is that his son Raju has acquired the land and has constructed the house. It is pertinent to know that in the additional written statement, specific case made out by the defendant was that his son has taken a small room at Karanjade. During the course of evidence a new case was made out by the defendant that the plot was acquired by a sale deed and sale deed was written by one of the panchas of village Karanjade. When he was called upon to produce the sale deed, his response was that he will have to consult his son. Admittedly, the sale deed is not produced on record. The son who has allegedly acquired the plot and has constructed house has not been examined. The assessment extract of the Assessment Register of the Gram Panchayat in respect of the said house describes that it was a permanent structure made up of bricks and there were Manglore type roof on the said house. Thus, a departure was made at the time of recording evidence by the defendant-tenant by contending that there was a sale deed in respect 9 of land below the house and the house was constructed by his son Raju by spending amount from his income. Though in the written statement the case of the defendant was that his son had taken a small room, in the cross-examination he had to admit that the house consists of three rooms. What was crucial was failure on the defendant to produce the sale deed though admittedly the sale deed was executed and the failure of the defendant to examine his son who was admittedly residing with him. Considering these factual aspects, an inference has been drawn by both the Courts below that the defendant-tenant has not adduced the evidence which he could have adduced which would have thrown light on the controversy. The failure to produce a copy of the sale deed and failure to examine the son are the important factors which are considered by the Courts below for coming to the conclusion that the acquisition of the house at Karanjade was by the defendant. This was on the background of the admitted position that admittedly the entire family had shifted to the said house and in fact the ration card of the tenant and his family members is at the said address. 7. Much was sought to be made to the fact that village Karanjade is a village situated away from the city of Panvel where the suit premises is located. In the cross-examination a suggestion was given 10 to the defendant that the distance between the Koli Wada which is near the said house and the Tapal Naka is very small which can be covered in three minutes. The response of the defendant was that since he walks slowly he will take about ten minutes to reach Tapal Naka. He admitted that Tapal Naka is main market place of the city of Panvel. He admitted that supply of water from a well was available to the house at Karanjade. That is why there are concurrent findings recorded by the Courts below as regards acquisition of a suitable residence. 8. The subsequent events pleaded by the petitioners are not at all relevant assuming that what is pleaded in the affidavit filed in this Court is correct, at highest it will show that after filing of the petition, the petitioners have started residing in the suit premises. This fact has no relevance to the ground of acquisition of suitable residence. Once the said ground is established, the subsequent conduct of the petitioners of shifting back to the suit premises is not relevant. The case made out in the affidavit that the construction of the house at village Karanjade is illegal is clearly an afterthought. The fact remains that the structure of the house is in existence atleast from the year 1984 till today. 11 9. Reliance was placed on the decision of the Apex Court in the case of Anandi D. Jadhav Vs. Nirmala Ramchandra Kore (AIR 2000 SC 1386). This was a case where Apex Court held that action of building a house by a son of tenant will not amount the acquisition by the tenant. Reliance is placed on the decision of this Court in the case of Dharma Bhika Patil Vs. Tarabai Anant Bhoir [2006 (4) Bom.C.R. 561]. This Court held that if the landlord fails to adduce evidence that the tenant himself has acquired the premises in the name of his wife, the decree on the ground of acquisition of suitable residence cannot be passed. The learned counsel appearing for the petitioners relied upon a decision of this Court in the case of Vamanrao Vishwanath Falke Vs. Anusaya Rangrao Patil [2005(6) Bom.C.R.134]. This Court held that the accommodation is suitable, provided, all heirs of the original tenant have right to occupy the said accommodation. The learned counsel appearing for the petitioner pressed into service the decision of this Court in the case of Dulanbi Mirasaheb Belgaonkar Vs. Annappa Kurka Devadiga [2001(4) Bom.C.R.739]. This Court held that acquisition by tenant’s daughter is not acquisition by the tenant. Lastly, reliance was placed on other two decisions of this Court in the case of Pramila Madhav Damle Vs. Waman R. Koparde [1999 (2) Bom.C.R 371] and Shankar Nan Waychal Vs. Mohan Ganesh Date [1985 (1) Bom.C.R.100] which lay down that the tenant must acquire 12 premises himself and to attract provisions of section 13(1)(l), it must be shown that tenant himself can stay in the premises as a matter of right. 10. In the present case, the case of the defendant that the acquisition is by his son Raju is not at all substantiated as neither a sale deed has been produced on record nor the son has been examined. In the facts of the case the Courts below were justified in coming of the conclusion that the acquisition of house at Karanjade was by the defendant himself. The fact that the entire family shifted there and the ration card of the tenant and all his family members was transferred to the address of the said house are considered for dealing with the argument that the house at Karanjade was not suitable. The Courts have found that village Karanjade is in close proximity of town of Panvel. Thus, it is not possible to interfere with the concurrent findings of fact recorded by the Courts below on the issue of acquisition of suitable residence. There is no merit in the petition. The petition is rejected. Rule is discharged with no orders as to costs. (A.S.OKA,J)