1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.3012/1991 Bhanudas Vithaldas Kataria PETITIONER VS. Sayyad Fakir Mohammed Hasan and ors. RESPONDENTS Mr.P.M. Mengane and Mr.R.G.Ketkarvocate for the petitioner Mr.Sanjay Kshirsagar advocate for the respondent CORAM :A.M.Khanwilkar,J. Date : 15/7/2008 P.C. 1] Heard counsel for the parties. This writ petition filed under Article 227 of the Constitution takes exception to the concurrent judgment and decree of eviction passed against the petitioner/tenant on the ground of arrears of rent. The respondent / landlord filed suit for eviction against the petitioner tenant in relation to house property bearing house no.324 at Yeravada on the assertion 2 that the petitioner was monthly tenant on monthly rent of Rs.20/- . The landlord asserted that inspite of demand notice sent to the petitioner /tenant, the tenant failed to pay the arrears of rent . As a result ,the landlord filed suit for eviction against the petitioner/tenant . The petitioner contested the said suit principally on the ground that the premises referred to in the suit were situated on land which is already declared as slum area . The petitioner /tenant also disputed the claim of the respondent /landlord that he was owner or landlord in respect of the suit structure. Both these issues have been answered by the two courts below against the petitioner tenant. In fact , before the trial court , the only issues that were framed and adjudicated were that- whether the suit premises are situated in slum area, whether the plaintiff proves that the defendant is defaulter in payment of rent for more than six months and whether the plaintiff is entitled for possession . In so far as the factum as to whether the suit premises are situated in slum area that has been considered by the court below on analysing the pleadings,documents and evidence on record. On considering all the aspects the trial court proceeded to observe as follows. '' For that purpose the defendant has produced the certified copy of the Gazette through his witness Khedekar, who is employed in the Pune Municipal Corporation in Slum Control Department . According to this witness , the area declared as slum area bearing city survey no. 1933 A Yeravada known as Subhashnagar and the hut of the defendant is situated in Subhashnagar area which is also used for commercial purpose by the defet. The name of the shop is 3 Prashant Provision Stores and the present defendant was given photo pass in respect of this hut. The photo pass is at Exh.41. More reliance is played on this photo pass produced by him. According to Mr.Saraf , the learned Advocate for the defendant that the present defendant where he carried business is situate in the slum area. The photo pass was issued to the defendant on 25.4.1984 .In that photo pass the number of the hut is shown as P-itch/Hut No.175 /A/F/14(C) and the period of this hut is Slum area is shown as two years. That means 2 years prior to 1985 the defendant stayed in this Subhash Nagar slum area and for that purpose this photo pass was issued to him. The photo pass shows that the present defendant is hutment dweller residing in slum area .The measurement of the hut is 10' x 11' .There is no mention in this photo pass that the present suit premises form part and parcel of the slum area. Mere possession of the photo pass does not ipso facto declare the suit property of the present plaintiff as slum area . The plaintiff was in possession of this property since 1965 i.e.from 10.8.1965 and he is paying land revenue for occupation of the land and the plaintiff has produced those receipts at Exhs.38 & 39 .The area is in Navi Khadki Gaothan area and this suit property is situated within the Pune Municipal Corporation limits. Secondly, the Pune Municipal Corporation has started taking taxes of the suit property from the plaintiff and accordingly the plaintiff paid the taxes (vide Exh.40) receipt issued by the P.M.C. Thus even though the Gazette shows that area declared is survey no.1933 A of Yeravada .The entry is at Item no.27 of the Schedule accompanying the Gazette dated 2.12.1983 . This declaration is made by competent authority . This declaration is made under The Maharashtra Slum Area (Improvement Clearance and Redevelopment ) Act ,1971 and it shows that Yeravada City survey no.1933 -A admeasuring15 hectre Arre including city survey nos.1944 to 1858 and City Survey Nos.1944 to 1955 . Now according to this declaration some portion of survey no. 1933 A was left open and it was not declared as Slum Area . However, the entire Nos.25 and 26 to the north is shown Navi Khadaki Gaothan. According to the present plaintiff the suit property is situated to the north of this Subhash Nagar area which is classified 4 as Navi Khadaki Gaothan. Hose no.324 is situated in Navi Khadki Gaothan and for that purpose plaintiff has paid taxes and the suit property is within the Pune Municipal Corporation limit . The defendant in his deposition merely says that City Survey no.1933-A is owned by the Government . The property extract is also produced by him at Exh.43 . It shows that city survey no.1933-A Yeravada admeasuring 86741 .6 sq.Mtrs. Is owned by the Government . This extract pertains to City Survey no.1933 -A Yeravada nd not in Navi Khadki Area. Unless the defendant shows that the suit premises is within the local limits of Yeravada i.e.City Survey no.199-A , then only he can say that plaintiff has no right to ask possession of the suit premises. Witness examined by the defendant D.W.2 Jayant Madhukar Gaikwad at pages 8 and 9 is unable to say whether House No.324 Nave Khadaki Yeravad situate within the area of City Survey no.1933 A. He cannot give the relation between H.No.324 and City survey no. 1933-A .Moreover he has not seen the hut for which the photo pass was issued . Witness Jaynt Madhukar Gaikwad examined by the defendant has produced original Gazette declaring the City survey no.1933-A as slum area. He says that after declaration of the slum area photo pass is issued to the concerned persons. In this Cross examination he states that he has not seen this survey number personally . He also cannot give the boundaries of Subhashnagar. That he has no idea where the House no.324 Navi Khadaki is declared as Slum area . A letter was shown to him. He admits that it is signed by Khare Officer in charge Slum area, in respect of House no.324 Navi Khadaki. He identified the signature of Mr.Khare. Thus it is clear that Navi Khadaki area is not declared as slum area . Thus there is no evidence to show that House no.324 Navi Khadaki Yeravada is part and parcel of slum Area. ''(emphasis supplied) 2] This finding is based on the documents and evidence on record. It is not a case where the finding cannot be substantiated on 5 the basis of evidence on record .The view taken by the two Courts below is the only possible view to reach the said conclusion on the basis of tangible evidence. Even though it is not open to this Court to re-appreciate the evidence on record in exercise of writ jurisdiction, even if that exercise was to be undertaken by this Court , as abovesaid , no other conclusion could be reached . It is not,therefore, open for this Court to interfere with the concurrent finding of fact reached by two courts below on the issue under consideration. 3] To get over this position the counsel for the petitioner – tenant invited my attention to the documents at Exh.3 to the petition. According to the petitioner the petitioner had produced copy of plaint in suit no.620/1967 to which the landlord was also party as plaintiff no.3 . The said suit pertains to city survey no.1933-A on which the suit property is situated. According to the petitioner although the petitioner wanted to adduce additional evidence no formal order has been passed on the application . Though the lower court at one stage had indicated that it will consider the application at the hearing of the appeal, however, no order thereon was passed . The argument seems to be attractive at the first blush. Assuming that the petitioner was entitled to produce said document as additional evidence even then it will not be of any avail to the petitioner. The reasons recorded by the two courts below for discarding the other evidence of the petitioner will apply with all force even with regard to this document. For , even on fair reading of the plaint in suit no.620/1967, it is not 6 possible to take the view that the respondent landlord has conceded the position that the suit premises being house no.324 is situated on city survey no.1933-A which portion has been declared as slum area. It has come on record that only part of city survey no.1933 A has been declared as slum area. Unless the petitioner was able to establish on record that the suit premises are situated in the portion of the land city survey no.1933/A which has been declared as slum area , the petitioner cannot succeed in his defence. In the circumstances, the grievance of the petitioner will have to be turned down on the above reasons. 4] That takes me to the next argument canvassed before this Court. According to the petitioner no relationship of landlord and tenant existed between the petitioner and the respondent . In first place no such issue was framed by the Trial Court . The petitioner tenant chose to proceed with the trial in absence of that issue. In any case the said issue has been considered by the appellate court after adverting to the relevant documents and evidence on record as can be seen from the discussion in para 9 and 10 of the impugned judgment . Which reads thus : '' On behalf of the defendant he has produced xerox copy of photo pass issued to him by the competent authority , municipal receipt at Exh.42 , City Survey Property extract -Exh.43 and Gazette etc. . It is pertinent to note that the plaintiff has very specifically given the description of the suit premises in plaint . 7 According to him , the suit property bears municipal House no.324 situated at Yerawada, new Khadki . According to him , he is the owner of the suit property and he used to pay revenue assessment as well as municipal taxes to the Municipal Corporation , Pune. Furthermore , he says that the defendant is his tenant in the suit property on the monthly rent of Rs.30 and the defendant paid him rent of the suit premises in the year 1975 -76 . The documents filed alongwith Exh.3 if perused then it clearly shows that in 1985 the plaintiff has paid municipal taxes of the suit property Rs.50/- for the year 1983 -84 . Another document is rent receipt dated 3.8.1976 . According to that rent receipt it seems that the defendant paid rent of the suit premises to the plaintiff Rs.31-50 ps. For the period from 1st November ,1975 to 30 November ,1975 . Exh.40 is another receipt which shows that the plaintiff has paid municipal tax in respect of the suit property bearing House no.324 . The revenue assessment receipt Exh.27, Exh.38 and Exh.39 show that the plaintiff has paid revenue assessment of the suit property to the Government . Those receipts are dated 29-12-65 , 10.8.65 and 19-12-1966 . Exh.28 is municipal tax receipt in respect of the same property i.e.bearing House no.324 which shows that the plaintiff has paid tax to the Municipal Corporation .Exh.29 is municipal receipt dated 29-3-1985 . The rent receipt book produced by the plaintiff contended rent receipts Exh.36 and 37 . According to those receipts one thing is very clear that the defendant has paid rent of the suit premises to the plaintiff for the month of September ,1975 and for the month of October 1975 . The defendant admits that both the receipts bear his signature about receipt of original receipt for payment of the said rent . Exh.40-A is the property extract , which shows that City Survey no.1933-A total +area of 8674.6 sq.mtrs.was given in possession of Motibai Khuda Murad legal heir of Khuda Murad Jamshet Irani in 1946 . Similarly another area in the same property was obtained by Gulam Hassein Ismail in 1945 and some of the area from City Survey no.1933 bearing Plot Nos.3,4 and 5 were acquired by the Government .The said extract no- where shows that the House no.324 is acquired by the Government. Thus, the evidence produced on behalf of the plaintiff clearly shows 8 that the suit property was originally owned by the plaintiff and the plaintiff has let out the same to the defendant on monthly rent and accordingly the defendant has paid rent of the said house to the plaintiff .'' 5] In my opinion there is no reason to depart from the finding so recorded by the Court below which is founded on material on record. It is not a case of perverse finding or finding which is error apparent on the face of record. Some error here or there by the lower courts cannot be the basis to exercise writ jurisdiction especially when the over all approach of the Court below on the point under consideration cannot be faulted. Accordingly even this argument does not take the matter any further for the petitioner. 6] Accordingly ,the petition is devoid of merits. Hence the same is dismissed with costs. (A.M.Khanwilkar,J.)