1 wp217.90 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO. 217 OF 1990 Balwantsingh Ishwarsingh Pansal, (Deceased) Through L.Rs. 1. Smt. Surendrakaur W/o Balwantsingh Bansal, Age : 65 years, Occ : Household 2. Bhupendrasingh S/o Balwantsingh Bansal, Age : 35 years, Occ : Business Both R/o 991/1, Sangamner Road, Shrirampur, Dist. Ahmednagar. 3. Hemlata W/o Sanjay Zinjad, Age : 65 years, Occ : Service, R/o Saraswati Colony, Shrirampur, District Ahmednagar. 4. Meena W/o Ganesh Upadhya, Age : 42 years, Occ : Service, R/o Choudhari Wasti, Shrirampur, District Amednagar. 5. Shila W/o Suresh Lale, Age : 40 years, Occ : Service, R/o Saraswati Colony, Shrirampur, District : Ahmednagar. ..PETITIONERS -VERSUS- M/s Manganiram Fakirchand & Sons, Through the partners : 1. Madanlal Fakirchand Dudhediya, age : 30 years, Occ : Business, ( Steps not taken. R.1 is abated as per additional Registrar's order dated 06.12.1993) 2. Suryakant Madanlal Dudhediya, Age : 30 years, Occ : Trade and Agri., (Deleted as per order dated 22.04.2009) 2 wp217.90 Both R/o Shrirampur, District Ahmednagar. 3. Smt. Shantabai W/o Mukhtyarsingh, age : 42 years, Occ : Trade, R/o Shrirampur, Dist. Ahmednagar. (Dismissed as regards R.No.3 for failure to prosecute as per Additional Registrar's order dated 16.12.1993). 4. Darshankaur W/o Kanranalsingh Chandi, Age : 48 years, Occ : Household, R/o Dashmeshnagar, Govindpura, Ahmednagar. 5. Soniya W/o Sundar Bhusari, Age : 39 years, Occ : Service, R/o Mansinga Colony, Pachora, District : Jalgaon. 6. Rita W/o Jaswindar Mathadu, Age : 37 years, Occ : Household, R/o Behind Katraj Bus-Stop, Pune-Satara Road, Pune. 7. Nita W/o Manoj Kurhade, Age : 30 years, Occ : Household, R/o Sangamner Road, Shrirampur, District Ahmednagar. ..RESPONDENTS ..... Mr. V.S. Bedre, advocate for petitioners. ..... (CORAM : B.P. DHARMADHIKARI, J.) DATED : 6th January, 2011. ORAL JUDGMENT : By this Petition filed under Article 227 of the Constitution of India, the judgment and decree dated 12.09.1989 passed by the District Judge, Ahmednagar in Regular Civil Appeal 3 wp217.90 No. 246 of 1982 has been challenged by the petitioner-original defendant no.2. That appeal was directed against the Judgment and Decree dated 11.01.1982 in Regular Civil Suit No. 635 of 1976. That suit was filed by the present respondent nos.1 and 2 as landlords against the petitioner and the respondent no.3 (since deceased) contending that respondent no.3 has unauthorisedly sublet the premises to present petitioner and also contending that the respondent no.3 was in arrears of rent. Trial Court decreed that suit and passed the decree of eviction and directed the present petitioner to deliver the vacant possession to respondent no.1 Firm. The Appellate Court has maintained that judgment and decree. 2. Advocate Mr. Bedre for petitioner has urged that the ingredients required to be proved, to show occupation of petitioner as sub-tenant, are not established. He has relied upon the judgment of Single Bench of this Court reported in 2006(5) Mh.L.J. 70 (Surendra M. Wagh and another V/s Manohar Krishna Kale and another), to show that there has to be a transfer of possession by tenant to sub-tenant and then it has to be for some consideration. According to him, the petitioner is the family member of respondent no.3-deceased Shantabai and in that capacity, he was staying in suit premises even prior to purchase of 4 wp217.90 those premises by respondent. Learned Counsel has pointed out specific ground raised in Writ Petition vide ground no. V, to show that the ignorance of evidence specifically led in this respect has been pleaded in Writ Petition. In that background, he has read the evidence of witness no.2 for defendant Shri. Namdeo, to show that the respondent no.1 purchased the premises from Namdeo and Namdeo has stated that the petitioner was residing with Shantabai as a family member since 20-25 years prior to that purchase. He has further urged that in any case, the alleged sub-tenant is prior to 1st September, 1973 and hence the amended provisions of Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (Hereinafter referred to as "Bombay Act") are applicable as Section 15 A squarely covered the position and constitute the petitioner a direct tenant of respondent. Learned Counsel further states that this position is erroneously evaluated by the Courts below. In this respect he has relied upon another reported judgment 2003(3) Mh.L.J. 161 (Dattatraya Pyurshottam Bhave since deceased through his L.Rs. Pramila Dattatraya Bhave V/s Jayant Sitaram Joshi and others). 3. With the assistance of learned Counsel, I have perused the Judgment dated 11.01.1982 delivered by the trial Court in Regular Civil Suit No. 635 of 1976 and also the judgment 5 wp217.90 dated 12.09.1989 delivered by District Judge, Ahmednagar in Regular Civil Appeal No. 246 of 1982. 4. Perusal of both the Judgments reveals that the status of petitioner as sub-tenant and his contention that he has become direct tenant has been evaluated in the light of provisions of Section 15-A, as also the provisions of Section 15(1) and (2) of Bombay Act. The definition of Licensee as contained in Section 5(4-A) and definition of Tenant as contained in Clause 11 of Section 5 has been considered and the Judgment of Hon'ble Apex Court reported in AIR 1965 Supreme Court 414 (424) {Anandnivas Private Ltd., V/s Anandaji} is also looked into. The Court after considering the relevant provisions have found no substance in the arguments as advanced. 5. The definition of Licensee and definition of Tenant were both required to be looked into because of the stand taken by the petitioner. The petitioner on one hand claimed to be residing with Shantabai as her family member and thereafter also claimed that in the alternative, if he is to be presumed a sub-tenant from 01.09.1973, he becomes direct tenant of the respondent nos.1 and 2. The evidence of Namdeo has been read out by the learned Counsel to this Court and that evidence no where discloses that 6 wp217.90 Namdeo has deposed about joint stay of petitioner with Shantabai. Because of this position, the learned Counsel also read out relevant part of evidence of petitioner-Balwantsingh and that evidence also does not disclose any assertion of joint stay in tenanted premises at Shrirampur. It is, therefore, obvious that the contention that the petitioner has been residing as family member of Shantabai has not been substantiated at all. 6. Perusal of the Judgment reported in 2003(3) Mh.L.J. 161 (Dattatraya Pyurshottam Bhave since deceased through his L.R. Pramila Dattatrya Bhave V/s Jayant Sitaram Joshi and others) shows that the evidence adduced by the defendant there proved such joint stay of parties and that evidence was not challenged. Application of mind therein reveals consideration of fact that induction of the defendant no.2 therein was since 1972 i.e. much prior to 1st February, 1973. Therefore, the learned Single Judge has found no ground of unlawful sub-letting would become unavailable against sub-tenant as all unlawful subletting prior to that date had been protected by Amending Act, 1987. Here, as the joint stay as also such induction as subtenant has not been proved, it is apparent that the said judgment can have no application. Respondent firm pleaded subletting in 1976 and burden was upon petitioner to show that it was since prior to 01.02.1973. 7 wp217.90 7. The petitioner on one hand claimed to be Licensee residing with Shantabai and on the other hand also attempted to demonstrate that he was paying rent in the name of Shantabai. Defendant no.2-Balwantsingh examined one Namdeo Kurhe as D.W. 2. He is predecessor in title of respondent no.1(original plaintiff). His evidence only shows that Balwantsingh was residing in the premises of Shantabai since last 20-25 years before the date on which he (Namdeo) transferred the suit premises by sale to plaintiff firm. He also deposed that Balwantsingh used to deposit rent in the name of Shantabai. He stated that Shantabai was tenant and did not depose that petitioner was subtenant. The evidence is not enough to upset concurrent findings. The rent receipt was being issued in the name of Shantabai. This position is properly evaluated by the trial Court while considering the provisions of Section 15 and 15-A. It has been found that under Section 15-A, the Licensee can become statutory tenant from 01.02.1973. It is to be noted that the petitioner never claimed to be Licensee of the respondent nos.1 and 2 firm. 8. The contentions of the petitioner show mutually inconsistent stand which has been pressed right up to this Court. 8 wp217.90 9. I do not find any jurisdictional error in the Judgment delivered by both the Courts below. All relevant aspects have bearing on the subject, are looked into and the decision has been recorded thereafter. No case of interference under Article 227 is made out. In the circumstances, the Petition is rejected. No costs. Rule discharged. (B.P. DHARMADHIKARI) JUDGE gas/wp217.90