1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2514 OF 1991 1. Smt.Saraswatibai Laxman Waikar since deceased by his heir & LR. Shri Purushottam Laxman Waikar age. adult, Occ: Service, R/at. 1297, Sadashive Peth, Pune-30. 2. Shri Purushottam Laxman Waikar Age 35 yrs. Occ: Service, R/at 1297, Sadashiv Peth. Pune-30 ..Petitiones. V/s. 1. Shri Sanjay Bhagwantrao Naik, Age 28 yrs., Occ. Student, Residing at 1225/1, Apate Road, Shivaji Nagar, Pune-4. 2. Shri Vijay Bhagwantrao Naik Age 35 yrs. Occ. Agriculturist, R/at Belapur, Tal.Shrirampur, Dist.Ahmednagar. ..Respondents. Mr.Deepali Patil i/b. Mr.R.S.Apte for petitioners. Mr.P.N.Karlekar for Respondent Nos. 1 and 2. CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J DATE : MARCH 19, 2009. DATE : MARCH 19, 2009. DATE : MARCH 19, 2009. JUDGMENT : JUDGMENT : JUDGMENT : 1. Heard Counsel for the parties. 2. This Petition takes exception to the concurrent view taken by the two Courts below decreeing the suit for possession on the ground of 2 non-user of the suit premises continuously for a period of six months and also on the ground of having acquired alternative suitable residential accommodation. The Trial Court as well as the Appellate Court after having analysed the relevant evidence on record have concurrently found as of fact that the Defendant No.1 was owner in respect of House No.1297 situated at Sadashiv Peth on the date of which the suit was instituted. She was occupying three rooms on the ground floor, 3 rooms on first floor and one room on the second floor and one attic on second floor. 3. According to the Petitioners, in particular, Defendant No.1, possession of the three rooms on first floor in the suit House No.1297 was received after filing of the present suit. The Courts below have considered this aspect and they have taken the view that the tenants have acquired alternative suitable accommodation elsewhere. That is a finding of fact which does not merit any interference in exercise of writ jurisdiction. 4. Argument of the Petitioners before this Court is twofold. Firstly, it is argued that the fact that some new premises have been acquired by the tenant 3 during the pendency of the suit can be no basis to decree the suit on the ground under section 13(1) (f) of the Act. This argument clearly overlooks that the Court has recorded adverse finding against the Defendants primarily relying on the fact that the date on which the suit has been instituted the defendant was already in occupation of the House No.1297 situated at Sadashiv Peth, Pune of three rooms on ground floor, three rooms on first floor and one room on the second floor and one attic on second floor. The fact that the tenant acquired further three rooms on the first floor is also incidently mentioned. It was then contended that the Defendant No.1 was not occupying House No.1297, but it is only Defendant No.2 alongwith his wife and two sons were residing in the said premises. This argument clearly overlooks the finding of fact recorded by the Appellate Court in paragraph-13 to the effect that evidence of Defendant No.1 clearly shows that her son alongwith his wife and two children were residing at Sadashiv Peth, Pune. Further factum of non-user has been also answered by the Courts below together. However, in my opinion, the decree for possession passed by the two Courts below can be sustained atleast on one ground under section 13(1)(i) in the fact situation of the present case. 4 5. Significantly, the Defendant No.1(original Petitioner No.1) has expired during pendency of this Writ Petition. Obviously, it is not the case of the Defendant No.2 that he was tenant. It is common ground that the Defendant No.2 did not enter witness box. On his behalf, Defendant No.1 has deposed that he alongwith his wife and two sons were staying in Municipal House No.1297, situated at Sadashiv Peth and not in the suit premises. 6. Taking any view of the matter, the decree for possession as passed by the two Courts below does not merit any interference in exercise of writ jurisdiction. Hence dismissed. 7. At this stage, Counsel for the Respondents/landlord submits that the Petitioners/- tenants have failed to pay any rent to the landlord in relation to the suit premises for last 10 years. It will be open to the landlord to pursue that claim against the tenant in appropriate proceedings, if so, advised. That direction cannot be issued in the present Petition. (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J)