Amar Singh Laxmandas Chhabaria and Another vs Smt. Subhadrabai Annasaheb Ghorpade (Deceased) through LR''s

Bhimrao N. Naik, J.—This is a petition by original defendants-tenant challenging the decree for possession passed on the ground of acquisition of alternative suitable premises.

Few facts which are relevant for the purpose of this petition Eire that Respondent-landlord filed Civil Suit No. 2895 of 1975 initially only against Petitioner No. 1 alleging that he is not using the premises for the purpose for which it was let for a period of more than six months prior to the date of institution of the suit, i. e. since January, 1972. It is also alleged in the suit that since the tenant has acquired suitable residence, he has shifted to the said premises since 1972 and after filing such a suit in the year 1978, to be precise on 30th August 1978, he joined Petitioner No. 2 as Defendant No. 2 in the suit.

The defendants contested the suit and it was pointed out that Block No. 1/8 in Gita Society was acquired by original Defendant No. 2 and Petitioner No. 1 has nothing to do with the said premises and the premises acquired by Petitioner No, 2 were not suitable for Petitioner No. 1 and the members of his family.

On the basis of rival contentions, issues were framed and the trial Court held that plaintiff failed to establish the ground of non-user. However, the Court passed decree on the ground of acquisition of alternative suitable premises by the Judgment and Order, dated 21st June, 1980.

Being aggrieved and dissatisfied by the aforesaid order. Petitioner filed Civil Appeal No. 466 of 1980. The learned Counsel before the 7th Extra Assistant Judge, Pune argued and pointed out that u/s 5(11)(c) after the death of original tenant-Laxmandas Chhabaria who was father of Petitioner No. 1 and husband of Petitioner No. 2, the tenancy was transferred to Petitioner No. 1 alone. This fact was not disputed by the other tenants and the rent receipts were passed in the name of Petitioner No. 1 and, therefore, it was argued that any acquisition of the premises by Petitioner No. 2 Cannot be taken into consideration and in any event it was pointed out that the landlord who was examined admitted that he cannot say whether the alternative premises which were acquired in the name of wife were suitable for the purpose of residence of the Petitioner No. 1 and his family members or not. It was also pointed out that though ground of non-user was pleaded by the landlord, in fact, the finding is recorded in favour of the tenant that Petitioner has been using the premises. However, notwithstanding this, the Appellate Court confirmed the finding recorded by the trial Court on the ground of acquisition of alternative premises and accordingly confirmed the decree for possession passed by the trial Court.

Being aggrieved and dissatisfied by the aforesaid Judgment and decree, present Writ Petition is filed by the original defendants. Shri Kaulgekar, learned Counsel appearing for petitioners submits that Petitioner No. 1 alone is tenant after the death of his father-Laxmandas and this position is clear in view of the provisions of Section 5(11)(c). He also argues and points out that initially Petitioner No. 2 was not joined as defendant but subsequently in the year 1978 she was joined as Defendant No. 2. He pointed out to me the clear cut admission of the landlord where he admits "I do not know that premises in Gita Society are suitable and adequate or not to defendants." Thus, Shri Kaulgekar emphasises this admission and pointed out that burden was upon the landlord to prove this fact including the fact of suitability. It was the case of the petitioner that assuming that they are entitled to reside in the Gita Housing Society, the said premises are not suitable. In view of this, there is nothing on record to indicate and show that the premises which were acquired were suitable for residence of petitioner and members of his family. It does appear from the record that Petitioner No. 2 seems to be mother of Petitioner No. 1 and in Gita Housing Society a flat was booked by Laxmandas who was original tenant and he had shown his wife i. e. Petitioner No. 2 as the nominee. Though I am aware of the fact that nominee Will not be the absolute owner of the property and she cannot dislodge the legal heirs from succeeding to the property, still the fact remains that Petitioner No. 2 resides in the said premises whereas Petitioner No. 1 continues to reside in the suit premises and even the Ration Card produced by him supports this contention of his. Surprisingly, both the Courts in this case have come to the conclusion that petitioner is not residing in the suit premises only on the ground that the suit summons was served on the address of Gita Housing Society and at last, for the first time, I have come across a letter which was sent under certificate of posting and is sent back with the remark that "Premises are closed and nobody is residing in the premises". In fact if it were only to be a registered letter, such endorsements would be made, but, nevertheless I verified from the original record and I find that the notice was sent under certificate of posting and it was returned with the endorsement "In the premises nobody is residing" and the finding is recorded that the Petitioner No. 1 is not residing in the suit premises. Assuming that Petitioner No. 1 is not residing in the suit premises, since landlord has failed to establish that the acquisition of the premises by Petitioner No. 2 was suitable to Petitioner No. 1''s family, no decree for possession can be passed against Petitioner No. 1 and an important admission which has been completely lost sight of by both the authorities below and which is brought to my notice by Shri Kaulgekar is in fact sufficient to non-suit the plan tiff because while considering the evidence of the plaintiff he cannot say anything regarding the suitability nor can defendants evidence help the Court in arriving at a conclusion regarding its suitability because stand of defendant in that premises are not suitable. Under these circumstances, an important ingredient which is required to be satisfied by the landlord while obtaining possession is regarding acquisition of suitable alternative premises and since it has not been proved, the petition deserves to be allowed. Hence, I allow the Petition, set aside the Judgment and decree passed by the trial Court and confirmed by the Appellate Court and dismiss the suit of the plaintiff. Rule made absolute, however, in the facts and circumstances of the case, there shall be no order as to costs.