1 cra899-10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO.899 OF 2010 IN APPEAL NO.618 OF 2004 IN RAE & R SUIT NO.1835 OF 1984 Mrs.Minoorani Chittaranjan Barua and others. ..Applicants Vs. Miss.Jai Rustomaji Bhajiwala and ors. ..Respondents -- Mr.Surel S. Shah, for petitioners. Mr.Dipen Furia, for respondent nos.1 and 2. -- CORAM : A.S.OKA, J. DATE : 26 th NOVEMBER, 2010 P.C: Heard learned counsel for the applicants and learned counsel for the respondent nos.1 and 2. 2] Applicants are the original defendant nos.1a, 1d and 1e. The first and second respondents are the original plaintiffs – landlords. The suit for possession was filed by the first and second respondents against the 2 cra899-10.sxw applicants and third to fifth respondents. The applicants and third and fourth respondents are the legal representatives of the original tenant. The suit was contested by the original defendant no.1 tenant by filing written statement and, thereafter, the suit was contested by the applicants and third and fourth respondents. The parties adduced evidence. The trial Court passed a decree on the ground of acquisition of suitable residence. However, the other grounds such as creation of illegal sub-tenancy etc. were negativated. An appeal was preferred by the applicants before the appellate Bench of the Court of Small Causes. There were cross objections filed by the first and second respondents. The appellate Court confirmed the judgment of the trial Court on the issue of acquisition of suitable residence. The cross objections filed by the first and second respondents was dismissed. 3] Learned counsel for the applicants submitted that even according to the case of the first and second respondents, the alleged acquisition was not by all the defendants but by the defendant No.1a and defendant No.1c. He pointed out that the Courts below have accepted the case that the acquisition was by the defendant no.1c. He submitted that there is no allegation that the acquisition by defendant No.1c is on behalf of all the legal representatives of the original defendant No.1. He submitted that even the acquisition by defendant No.1c is not at all proved as the documents produced at exhibits “L” and “M” could not be proved by the examination of the official of the MHADA. Though it was contended that a that a flat was allotted to defendant no.1c by MHADA, he submitted that even the allotment to defendant No.1c has not been established. He 3 cra899-10.sxw submitted that merely on the basis of the documents at exhibit “L” and “M” which were not proved, the findings regarding acquisition could not have been recorded. He submitted that even assuming that there was acquisition by the defendant no.1c, unless it is proved that the acquisition was for the benefit of all the legal representatives of the defendant no.1, the decree for possession could not have been passed. He relied upon the proposition of law laid down in the decisions of the Apex Court and this Court in the case of Anandi D. Jadhav (dead) by Lrs. Vs. Nirmala Ramchandra Kore and others [(2000)3 SCC 703, Abdul Sattar Vs. Khutejabi and others [(2003)5 SCC 647], Vamanrao Vishwanath Falke Vs. Anusaya Rangrao Patil and others [2005(6) Bom.C.R.134], Dharma Bhika Patil Vs. Tarabai Anant Bhoir [2006(4) Bom.C.R.561], Saharabegam Sikandar Shaikh and others Vs.Abdul Ali Mawaji Tejani and others [1991 Bom. R.C.215]. He therefore submitted that the findings recorded by the courts below are perverse. 4] I have considered the submissions. The law laid down by the aforesaid decisions is well settled. However, the factual matrix of the case in the light of the findings of fact is required to be considered. 5] It must be noted here that the defendant no.1a to 1e were brought on record as the legal representatives of the first defendant during the pendency of the suit. Plaint was amended for alleging that the defendant No.1a and 1c have acquired suitable alternate accommodation in Saleem Mansion, Mazgaon, Mumbai and Gulmohar Society, MHADA building no. 16, Oshivara, Mumbai respectively. There was an additional written 4 cra899-10.sxw statement filed for dealing with the amendment. Though the written statement purports to be filed on behalf of defendant No.1a to 1e, the same does not bear signature of the defendant no.1c. 6] The first and second respondents produced documents at exhibit “L” and “M” for showing acquisition of accommodation in Gulmohar Society. The Appellate Court noted that initially a common written was filed by the legal representatives of the defendant No.1. It was observed that the defendant No.1a to 1e are represented by the same advocate who has signed by the written statement which has not been signed by defendant No.1c. The documents were produced at exhibit “L” and “M” which show that one Arunkumar Barua applied for allotment of a residential premises at Oshivara under NRI quota. The Officer of the MHADA who was examined could not properly prove the said documents. However, the defendant No. 1d (second applicant herein) who stepped into the witness box was confronted with the said documents in the cross-examination. It must be noted here that on the documents at exhibit “L”, the name of defendant No. 1c was appearing as the applicant. However, he denied the signature of defendant No.1c on the said documents. He admitted that on page 6 of the said document, the name of defendant No.1a, his own name and the name of defendant No.1e is appearing. He submitted that the Ration Card forming part of exhibit “L” has been issued in the name of original defendant no.1 and names of legal representatives of defendant no.1 were included in the Ration Card. He also admitted that the photograph at page 17 of exhibit “L” was of defendant no.1c. 5 cra899-10.sxw 7] Learned counsel for the first and second respondents tendered true photo copies of the documents forming part exhibit “L”. It shows that one Arunkumar Barua applied for allotment of a flat. The second applicant in cross-examination admitted that the said name is the of defendant no.1c. In the application, the defendant no.1 has disclosed that the present applicants will reside with him in the flat to be allotted. The letter of allotment of flat admeasuring 910 square feet at Oshiwara, Mumbai in the name of the defendant no.1(c) is a part of the said documents. The Ration Card standing in the name of original defendant No.1 was annexed to the application for allotment in which the names of first applicant, second applicant and defendant no.1c as well as third applicant appear as members of a family. The photograph affixed in on one of the applications forming a part of exhibit “L” has been admittedly of the defendant no.1c. Though second applicant in his evidence went to the extent of denying acquisition of the flat by defendant no.1c, the documents at exhibit “L” show that the application for allotment was made to MHADA by defendant no.1c by showing that the present applicants are going to occupy the flat with him. The flat admeasures 910 square feet. In fact, the Ration Card produced along with application discloses the name of the applicants as member of the same family. Though the applicant no.2 disputed the signature of defendant no.1c on the said documents, he admitted that the name of defendant no.1c appears in the said documents and that the photograph of defendant 1c appears on the said documents. Thus, what has been established is the allotment of a flat of having an area of more than 900 square feet was made by MHADA in the name of defendant no. 1c. The documents at exhibit “L” show that the flat was allotted to 6 cra899-10.sxw defendant no.1c for his own use on a representation that the present applicants will be also occupying the said flat. The applicants have not come out with a clear case that the flat was acquired by defendant no.1c and that they have no concern with the said flat. In fact, the applicants went to the extent of denying the allotment of flat in the name of defendant no.1c. The documents admittedly pertaining to defendant no.1c produced in the evidence show that on the basis of application made by defendant no. 1c which represents that he along with present applicants will be occupying the flat, the allotment of flat has been made by the MHADA in the name of defendant no.1c and, that is how, the acquisition is for the benefit of the applicants as well. There is no pleading that the acquired flat is not suitable. Moreover, the defendant no.1c did not step into witness box. 8] In view of the admissions of the second applicant in the cross- examination which have been extensively considered by the Appellate Court and the stand taken by the applicants, the concurrent findings of fact have been recorded against the applicants by both the Courts below of acquisition of suitable residence. There is no scope to interfere with such findings in the Revision Application. Revision Application is rejected. 9] Learned counsel for the applicants prays for continuation of the ad- interim relief. It is directed that the decree for possession shall not be executed for a period of three months from today. 7 cra899-10.sxw [A.S.OKA, J]