( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. WRIT PETITION NO. 3562 OF 2000 (Aurangabad) (i.e. WRIT PETITION NO. 204 OF 1988 (Bombay)) WITH Civil Application No. 18404 of 2010, Civil Application No. 5355 of 2004, Civil Application No. 5356 of 2004, Civil Application No. 5357 of 2004, Civil Application No. 5358 of 2004, (All C.As. filed in Writ Petition No. 3562 of 2000 (Aurangabad), i.e. Writ Petition No. 204 of 1988 (Bombay)) ............................... WRIT PETITION NO. 3562 OF 2000 (Aurangabad) (i.e. WRIT PETITION NO. 204 OF 1988 (Bombay)) Vishwanath Raoji Shete, since deceased through his legal heirs : 1. Ashok Vishwanath Shete, Age : 59 years, Occupation : Business, R/o. 93, "Ushakkal", Gulmohar Road, Ahmednagar. 2. Subhash V. Shete, Age : 54 years, Occupation : Business, R/o. Central Bank Road, Ahmednagar. ( 2 ) 3. Vilas V. Shete, Age : 52 years, Occupation : Business, R/o. Chaitanya, Anandnagar, Savedi, Ahmednagar. 4. Vivek V. Shete, Age : 50 years, Occupation : - , "Prathamesh" Housing Society, Ris, Rasayani, .. Petitioners Taluka : Khalapur, (L.Rs. of original District : Raigad. defendant) versus Bakkar Kasal alias Khatik Masjid Trust, through its Trustees : 1. Bhadashahabhai Sunnubhai, Aged : 67 years, Trader. 2. Chandasaheb Dil Mohommad Khalifa, Aged : 69 years, Occupation : Business. 3. Mohammed Hanif Tawakalbhai, Aged : 79 years, Occupation : Business. 4. Yusufbhai Mithubhai Choudhary, Aged : 79 years, Occupation : Business. ( 3 ) 5. Babasaheb Khairuddin, Aged : 55 years, Occupation : Trader. All residents of Juna Mangalwar Bazaar, Ahmednagar. .. Respondents (Original plaintiffs) No.4 dead L.R. not on record. ....................... Mr. A.B. Girase, Advocate, holding for Mr. R.B. Raghuwanshi, Advocate, for the petitioner Mr. V.S. Bedre, Advocate, for respondent nos.1 to 5. ........................ CORAM : B.P. DHARMADHIKARI, J. DATE : 8TH FEBRUARY 2011 ORAL JUDGMENT : 1. The petition has been dismissed in default and hence Civil application No. 18404/2010 has been filed by the legal heirs of deceased original petitioner seeking its restoration. There is delay of 191 days and its condonation is also sought for. The reason put forth on affidavit is, listing of the matter for final hearing and its dismissal was not within knowledge. ( 4 ) 2. The request for restoration is being strongly opposed by Adv. Shri Bedre, who points out that applicant nos.1E to 1H have no locus to move such application. He states that applicant nos.1E to 1H being daughters were found not entitled to inherit tenancy for business purposes and hence permission to bring them on record as legal representatives was not granted. 3. After hearing learned Counsel appearing for the petitioners and the learned Counsel appearing for the respondent / Trust, as I do not find any mala fides, delay is condoned and application for restoration is allowed. Accordingly Writ Petition No. 3562/2000 is taken up for final hearing with consent of parties as the Counsel for respondent / Trust had on earlier date urged that, in case, Writ Petition was to be restored, this Court should dispose of the matter finally immediately. 4. The petition was earlier filed at Bombay and its Bombay number is 204/1988. 5. Mr. A.B. Girase, learned Counsel appearing for the petitioners, has urged that all three reasons given by the respondent / landlord for seeking restoration of possession are not substantiated. He points out that suit was instituted in 1977 ( 5 ) pointing out that there was default in payment of rent of Rs. 2359/- from 1-3-1975, that there was change in user and Trust required the land for construction of building. He states that the petitioners moved Civil Application seeking leave to deposit the rent amount before this Court. But that application was rejected. As readiness and willingness to deposit the amount was shown, the defaults are wiped out. In addition, he points out that during the pendency of proceedings, portion admeasuring 65 feet X 30 feet is forcibly taken in its own possession by the Trust and Trust has raised necessary structure on it. Hence, bona fide need is satisfied. Lastly, he states that only evidence available on record is of two bullocks on spot and those two bullocks were there for use along with bullock cart. Thus, bullocks and bullock cart, according to him, are not sufficient to show that there was change of user. 6. Mr. V.S. Bedre, learned Counsel appearing for the respondent / Trust, has pointed out that total premises let out to the deceased petitioner admeasures 60 feet X 50 feet. The story of the Trust, of taking over forcible possession, is not pleaded anywhere and for the first time in synopsis of dates and events tendered today, such contention is raised. According to him, need survives even today. He points out that the tenancy was for storing wooden articles and for Mandap decoration work. The ( 6 ) change of user is by constructing shed and using it for cattles. He relies upon concurrent findings reached by both the courts. He urges that the said findings should not be disturbed. Lastly, he states that arrears and defaults are established and mere rejection of application by this Court does not mean that the petitioners were / are ready and willing to pay the rent. 7. From the dates and events placed on record by Adv. Shri Girase, it is not in dispute that the suit filed was having No. 384/1977 and decree on three counts is passed in favour of respondent / Trust on 28-2-1983. Regular Civil Appeal No. 96/1983 filed against it came to be dismissed on 6-10-1987 and thereafter present Writ Petition was filed at Bombay, having No. 204/1988. 8. Perusal of issues, as framed, reveal that concurrently both the courts have found that the respondent / Trust has proved its bona fide need, that there were defaults and that there was change of user. The effort to allege forcible dispossession from part of land is not accompanied by an affidavit and application to bring subsequent events on record. The said events, therefore, cannot be looked into. In any case, the total land in possession of the petitioner is stated to be 60 feet X 50 feet. While according to the petitioners, portion admeasuring 65 feet X 30 ( 7 ) feet is taken away from them. The allegation appears to be unbelievable. 9. The purpose of tenancy is admitted. The presence of two bullocks and bullock cart is accepted by the petitioners in their evidence. The consideration of evidence, therefore, reveals that there was change of user. The change of user has to be for a continuous period of six months immediately preceding presentation of the suit and there is no dispute about it. No case is made out warranting interference in concurrent findings. 10. In so far as defaults are concerned, again both the courts have concurrently recorded finding of fact that the tenants were in arrears for more than six months since 1-3-1975. Mere filing of application before this Court in pending Writ Petition seeking leave to deposit arrears, that too after 1988, therefore, cannot affect those findings. Those concurrent findings, therefore, also deserve to be maintained. 11. In this view of the matter, no case is made out for interference in this jurisdiction. 12. In the result, the petition is dismissed. Rule is discharged. Needless to state, that the interim stay stands ( 8 ) vacated. There shall be no order as to costs. 13. No arguments are advanced on Civil Application Nos. 5355/2004, 5356/2004, 5357/2004 and 5358/2004. Hence, the said Civil Applications are also rejected. ( B.P. DHARMADHIKARI ) JUDGE ......................... bgp/wp3562