1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH WRIT PETITION NO. 4295 OF 2008 Suryalal s/o Mahabirprasad Jaiswal, aged about 66 years, r/o Gadga, Temple Road, Civil Lines, M.E.C.L. Apartment, House No. 287-C, Flat No.S-11, Second Floor, Nagpur. ... PETITIONER Versus 1. Tukaram s/o Piraji Wankhede, aged about 70 years, Practicing Advocate, in District Court, Nagpur, r/o Uruvella Colony, Wardha Road, Nagpur. 2. Vinod Jaiswal, aged – Adult, occupation - Business. 3. Smt. Vinod Jaiswal (wife of Vinod Jaiswal), aged – Adult, occupation – Household. Respondents No. 2 & 3 shown in the cause title as r/o Flat No.S-11, Second Floor, M.E.C.L. Apartments, Gadga, Temple Road, Civil Lines, Nagpur. 4. Ravi s/o Suryalal Jaiswal, aged – Adult, occupation - 2 Business, r/o M.E.C.L. Apartments, Gadga, Temple Road, Civil Lines, Nagpur. 5. Rahul s/o Suryalal Jaiswal, aged – Adult, occupation – Business, r/o Gadga, Temple Road, Civil Lines, M.E.C.L. Officers Apartment, Nagpur. ... RESPONDENTS Shri S.R. Deshpande, Advocate for the petitioner. Shri T.P. Wankhede, respondent in person. ..... CORAM : B.P. DHARMADHIKARI, J. DATE OF RESERVING THE ORDER : OCTOBER 03, 2008. DATE OF PRONOUNCING THE ORDER: OCTOBER 08, 2008. ORDER : Heard Shri Deshpande, learned counsel for the petitioner and Shri T.P. Wankhede, respondent No.1 in person. 2. The challenge in this writ petition is to concurrent judgments and decrees delivered by the Courts below under the provisions of Maharashtra Rent Control Act, 1999, directing the petitioner – tenant to vacate tenanted premises and to hand over 3 the possession thereof to the present respondentNo.1 / landlord. 3. Respondent No.1 filed Regular Civil Suit No. 46 of 2001 claiming possession on the ground of bonafide need, non user by tenant and change of user. He contended that tenant has built up his own bungalow and shifted there. He sublet the premises which were being used by defendants No. 2 to 5 for running Computer business and also pointed out his own bonafide requirement. The Court of Second Additional Judge, Small Causes Court, Nagpur, on 19.12.2006, decreed his suit. The present petitioner then filed appeal under Section 26-A of Provincial Small Causes Court Act, 1887, which came to be registered as Regular Civil Appeal No. 38 of 2007 and Ad-hoc District Judge-9, Nagpur, vide judgment dated 13.8.2008, dismissed that appeal. 4. Shri Deshpande, learned counsel has contended that Small Cause Court had no jurisdiction because the respondent – landlord in plaint itself stated that defendants were encroachers. 4 He places reliance upon the judgment of the Hon'ble Apex Court in the case of Raizada Topandas vs. Gorakhram Gokalchand , reported at AIR 1964 SC 1348. He further states that from evidence of landlord and his witness, it is apparent that landlord has got his own house and though landlord claimed to have sold it to Pushpalata Dhurve, that sale was only nominal / benami. He has invited attention of the Court to evidence in this respect and states that the evidence has not been rightly appreciated by both the Courts below. 5. Respondent No.1, who appears in person, states that though word tress passer has been used in plaint, contents of plaint show that the tenants and sub-tenants have been described as tress passers by them. He pleads that he himself is a practicing advocate and drafted the plaint with the assistance of his senior and there are some loose remarks in the plaint. He contends that both the Courts have correctly appreciated the position and have found that the present appellant is his tenant. He further argues that all questions sought to be urged are questions of fact and 5 findings concurrently reached upon the same are neither erroneous nor perverse. He, therefore, prays for dismissal of writ petition. 6. The perusal of plaint as filed clearly shows that only in paragraph 6, respondent No.1 has used the word “Thus, all the defendants No.1 to 5 are encroachers, tress passers and they are not tenants at all as the old tenancy of defendant No.1 is/ was already terminated in August 1997 as he shifted in his own big bungalow in Laxminagar and there is no agreement of tenancy with defendants No. 2 to 5 except defendant No.1 and they are tress passers and are liable to be evicted from their unauthorised and illegal occupancy and commercial use by force from the said flat by considering the bonafide need of accommodation of the plaintiff in his old age of 64 years.” 7. The consideration of this aspect by both Courts clearly negates the argument of Shri Deshpande. The lower appellate Court has found that respondent No.1 contended that after 6 vacating suit premises, defendant No.1 (present petitioner) inducted his brother defendant No.2 and his wife defendant No.3 and his sons defendants No. 4 & 5 in the suit premises and started using it for non residential purpose. It is in this background that the respondent No.1 called them as tress passers. This appreciation of controversy is neither perverse nor erroneous. It is to be noted that joint written statement was filed before the Small Cause Court by defendants No. 1 to 5 and they claimed that there was no change of user and no shifting of residence by defendant No.1. They also contended that there was no misuser by running computer institution. They denied that any computer institute was being run and they stated that computer was installed by defendent No.1 himself. They have stated that premises in question were taken on rent by defendant No.1 and relationship between the parties was of landlord and tenant. They have further stated that defendant No.1 has been residing in said flat with his family which includes defendants No. 4 & 5. They denied termination of tenancy in August 1997 or shifting of defendant No.1 in August 1997 to his bungalow at 7 Laxminagar. What is important to be noted is defendants never accepted that they are tress passers before the trial Court. Thus, plea about jurisdiction of Small Cause Court is being taken only to gain some advantage in the litigation by prolonging it further. Reliance upon the judgment of the Hon'ble Apex Court in Raizada Topandas vs. Gorakhram Gokalchand (supra), is, therefore, unwarranted in these facts. 8. The Courts have found that defendant No.1 - present appellant accepted his residential address and it was proved that he had shifted to his own bungalow with built up area of 6000 sq. ft. and evidence also shows that it has 21 rooms. After considering this evidence, the Courts have found that there was no question of hardship to such tenant if he was evicted under Section 16(1)(g) & (e) of Maharashtra Rent Control Act, 1999. Thus, the findings are not being demonstrated either as erroneous or perverse before me. 9. Respondent No.1 has a small flat and he has proved 8 that the present appellant has constructed a bungalow as mentioned above. The controversy needs to be looked into even from this point of view. The respondent has pleaded that he has sold house situated at Uruvella Colony, Wardha Road, Nagpur, on 13.8.1984 for consideration of Rs.15,000/- to one Pushpalata Dhurve. Pushpalata Dhurve in her cross examination accepted that the respondent Tukaram Wankhede is husband of her real elder sister. She further accepted that even in October 2004, i.e. on the date of her deposition, house was in the name of the respondent – Tukaram, and she stated that Tukaram was staying in that house as her tenant. She further stated that she did not issue any rent receipt to the respondent. She further accepted that she did not inform the Corporation that the respondent Tukaram Wankhede was her tenant. However, present respondent deposed that he sold the property to Pushpalata and Pushpalata has accepted to have purchased it. The certified copy of that sale deed was also proved on record of the trial Court. 10. In these circumstances, in the present facts, I do not 9 find anything wrong with the orders of eviction passed against the present petitioner. No case is made out warranting exercise of powers under writ jurisdiction. Writ Petition is dismissed. However, in the circumstances of the case, there shall be no order as to costs. JUDGE Shri Deshpande, learned counsel for the petitioner at this stage requests for protecting the possession of the petitioner for a period of two weeks. He states that the execution is already filed. The request for stay is being strongly opposed by Shri Wankhede, respondent in person. However, in the interest of justice, time till 20th October 2008 is given to the petitioner to take further appropriate steps and till then his possession is protected. However, the same is subject to the petitioner depositing in Executing Court, the entire monetary part of decree, of which execution is sought by Shri Wankhede. JUDGE ******* *GS. 10