CIVIL APPEAL 44 of 2010 on 30 June 1986

ORDER :

.The present second appeal is by landlord.

2. The landlord initiated Regular Civil Suit No. 109 of 1986on 30/06/1986 against the respondents for possession of suit blockout of suit property bearing house No. 1352/2 CTS No. 421 locatedon the eastern side of Taloda road in which two shops located underground floor and one shop on the ground floor were given on rent tothe defendants in the year 1976 for fixed rent of Rs. 1125/- permonth. Some time in 1980, additional shop on the northern portionwas also permitted to be used by tenants for which suit for possession was initiated referred supra.

3. The appellant-landlord initiated Regular Civil SuitNo. 109 of 1986 seeking possession of the shop on the abovereferred suit property, which is located on the northern side, as therespondents-tenants were trespassers and sought eviction, whereas,Regular Civil Suit No. 169 of 1985 was initiated by tenants-respondents seeking injunction against the appellant-landlordrestraining them from dispossessing them without following dueprocess of law.

4. By an order dated 28/09/1999, the Court of Joint CivilJudge, Junior Division, Nandurbar ordered dismissal of the suit forinjunction filed by the respondents i.e. Regular Civil Suit No. 169 of1985 and decreed Regular Civil Suit No. 109 of 1986 preferred bythe landlord.

5. Present respondents, feeling aggrieved by the abovereferred judgment dated 28/09/1999, presented Regular Civil AppealNos. 40 of 1999 and 41 of 1999 in the Court of Additional DistrictJudge, Nandurbar, which appeals came to be allowed on 30/06/2001.As such, present second appeal by the landlord.

6. Heard Mr. J. R. Shah, learned Counsel for the appellantsand Mr. S. P. Shah, learned Counsel for the respondents.

7. From the record, it appears that, the suit property consist of Municipal Committee No. 1352/2 of Revision Survey No. 421,which was originally owned by Jayantrao Natawadkar.

8. In 1976, respondents were inducted as tenants of two underground blocks and one block on the ground floor on southernside of the suit property mentioned above on monthly rent ofRs. 1125/-.

9. Another Regular Civil Suit No. 110 of 1986 claimed to beinitiated for possession of the tenanted premises on the ground ofarrears of rent, personal and bonafide requirement and acquisition ofalternate accommodation by the tenants.

10. The tenants-respondents initiated Misc. ApplicationNo. 9/1986 for determination of standard rent.

11. Mr. Shah, learned Counsel for the appellant-landlord,while questioning the legality of the judgment impugned, would urgethat, judgment delivered by the Additional District Judge, Nandurbar

in appeal is not sustainable, as the same is not in tune with theevidence and pleadings.

12. According to him, points as are answered by learned lower appellant Court, particularly in relation to including thenorthern block on the total suit property are contrary to the pleadingsand evidence. According to him, lower appellate Court has wronglygranted injunction.

13. The above referred contentions of the appellant areresisted by Mr. Shah, learned Counsel for the tenants on the groundthat there is a long standing tenancy of the property since 1976.According to him, payment of rent as was established andpossession of the appellant entitles him for the relief as is granted bylearned lower appellate Court and sought dismissal of the secondappeal.

14. Learned trial Court has framed the following issues inRegular Civil Suit Nos. 169 of 1985 and 109 of 1986 and which areanswered as under.

Issues in Regular Civil Suit No. 169/1985

Issues in Regular Civil Suit No. 109/1986

15. Perusal of above referred issues and finding recordedtherein, noticed that learned trial Court has drawn wrong inferencethat respondents are not tenants of the suit premises inclusive ofnorthern portion on the ground floor room. Learned trial Court, in itslengthy judgment, particularly from para 17 to 26 and 67 to 72proceeded to record findings as regards relationship of landlord andtenant, having taken into account the evidence of various witnesses.Learned trial court ordered recovery of possession by the appellantof the suit tenement, two shops on under ground floor and one shopof southern side on the ground floor. Learned trial Court alsodeclared that, the appellant is entitled for recovery of possession ofshop situated on northern side on ground floor of the suit property and further ordered inquiry into mesne profits.

Facts

and further ordered inquiry into mesne profits.

16. Learned lower appellate Court, while dealing with thefindings has taken into account the factual matrix and noticed thattwo rooms on under ground floor and one southern room on groundfloor are in possession of tenants, is not disputed issue. What isdisputed is in respect of one room on the northern side on the groundfloor, which was claimed by the landlord to have been taken forciblepossession by tenants-respondents. The evidence of P.W. No. 1Dr. Suhas Natawadkar was discarded being not witness to leasetransaction. The evidence of P.W. No. 3 Karamatbhai, witness to thelease transaction taken into account for the purpose of drawing theconclusion of tenancy @ Rs. 1125/- p.m. It is noticed by lowerappellate Court that initially rent of Rs. 825/- p.m. was agreed to andthereafter increased to Rs. 1125/- p.m. and as such, formed to bebasis for drawing conclusion that northern side room, which is indispute was leased out to the tenants. The permissible use of theshort period was also taken into account by learned lower appellateCourt and upon appreciating evidence of D.W. No. 1 Lakhmichandobserved that, the judgment of the trial Court is not sustainable.

17. In my opinion, having gone through the evidence withthe help of assistance of learned Counsel for the parties and upon analyzing the contentions raised by the learned Counsel for theappellants, the view taken by the learned lower appellate Courtappears to be just and proper, based on the evidence on record.

18. No case for interference is made out. The secondappeal fails, stands dismissed.

19. Mr. Shah, learned Counsel for the appellant, at thisstage, makes request that he be granted liberty to initiate freshproceedings for possession of the suit property against tenants.

20. In my opinion, there is no such embargo on the rightspresent appellants to initiate such proceedings based on new set ofgrounds, that too in regard to the provisions of law.

21. With the above observations and liberty, the secondappeal stands dismissed.

[ N.W. SAMBRE, J. ]