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Judgment
K.S. Jhaveri, J.—By way of this appeal the applicants have challenged the judgment and decree dated 06.08.1999, passed by the learned Fourth Extra Assistant Judge, Baroda, in Regular Civil Appeal No. 95 of 1996, whereby the learned Judge has dismissed the appeal and confirmed the order of the Trial Court.
The short facts of this case are that original Plaintiffs owns property No. 1357/1 situated at Khatrivad, Fatehpura, Baroda. The said premises was let out to the original Defendants at a monthly rent of Rs. 12/- per month since 1.1.1960. On 23.1.1974, the Plaintiffs served Notice to the Defendants, seeking possession of the said suit premises. Thereafter, Rent Suit No. 1217 of 1975 filed by the Plaintiffs for possession on the ground that the Defendants had acquired suitable accommodation. The said suit came to be dismissed by the judgment and order dated 29.6.1978. Against said judgment and order the Plaintiffs preferred Civil application No. 218 of 1978, which also came to be dismissed. Thereafter, the Plaintiffs preferred Civil Revision Application No. 806 of 1990, before this Court, which came to be allowed and this Court has remanded the said matter for a fresh trial only on the issue of alternative suitable accommodation.
2.1. Thereafter, the said suit again came to be tried by the Trial Court, Small Causes Court, Baroda. On 16.7.1996, the learned Judge after hearing the parties has passed the decree of eviction. Being aggrieved with the said judgment and decree dated 16.7.1996, the Plaintiffs preferred Regular Civil Appeal No. 95 of 1996. Vide order dated 06.08.1999, the said appeal also came to be rejected. Hence, this petition.
Heard learned Advocates for both the parties.
Mr. H.T.M. Hakim, learned Advocate for the applicant has contested only on the point that the both Courts below have failed to appreciate that the applicants formerly original Defendant No. 1/1 and 1/2 have not acquired suitable accommodation. The allotment which was alleged was not on record to show that the possession was taken and whether the suitable accommodation which was acquired was suitable or not was also not considered. He also contended that the Trial Court has committed an error in granting Eviction decree.
Learned Advocate for the Respondents supported the order of the Courts below and contended that the Trial Court while deciding the suit has framed following issues.
Whether the Plaintiff bonafide and reasonable requires the possession of the suit premises for his own personal use and occupation ?
If so, to whom the greater hardship would be caused to the Defendant by passing a decree for eviction or to the Plaintiff by refusing to pass it ?
Whether the Defendant after coming in to force of the Bombay Rent Act, built or acquired vacant possession of or has been allotted a suitable resident ?
What was the principal purpose of letting ?
Whether the Defendant has unlawfully sublet the suit premises or has assigned or transferred his interest therein to Defendant No. 2 ?
Whether Defendant No. 2 has changed the user ?
Whether the Defendants have committed breach of the terms of the tenancy ?
Whether the notice is legal and valid ?
8.A. What should be the standard rent of the suit premises ?
Whether the Plaintiff is entitled to recover possession of the suit premises ?
What order and decree.
After considering the issues between the parties and after remand from this Court, the Court below has reconsidered the evidence and in paragraph Nos. 11 and 12 has observed as under:
Now, at this stage the question arise that whether the Defendant No. 2/1 to 2/4 who are the heirs of the deceased Defendant No. 2 are in possession of the suit premises and are liable to be evicted from the suit premises ? Now, let see the evidence of the Plaintiff in this respect, it is an admitted fact that the deceased Megharaj Keshumal the father of the Defendants-original tenant of the suit premises and after his death both the Defendants have got tenancy right u/s 5(11)(C) of the Bombay Rent act. Under these circumstances, I can say that if the Defendant No. 1 has acquired the suitable alternative accommodation in Savad colony even though the Defendant No. 2 cannot be liable to evict from the suit premises on this ground as they become the tenant by virtue of Section 5(11)(C) of the Bombay Rent Act.
Now, I would like to discuss about the acquisition of the premises by the Defendant No. 2/1 Mayaben in Gokulnagar, Gotri, Vadodara. In this case the Defendant No. 2/1 Mayaben has specifically admitted in her deposition that block No. 806 in Gokulnagar was allotted to her by Gujarat Housing Board in the month of April, 1990. The allotment letter is produced at Exh.116 on record. It further reveals from the deposition of the Plaintiff witness No. 3 Lakshmanbhai who is serving in Gujarat Housing Board as a Rent Collector that this block is consisted of one room, kitchen, bath-room, latrin and with the facility of water, drainage and electricity. In view of this fact, I can safely say that the Plaintiff has proved that the Defendant No. 2/1 Mayaben has acquired alternative accommodation in Gokulnagar, in the locality of Gotri Vadodara. Now, let us see the further evidence of the Defendant No. 2 in this respect the Defendant No. 2/1 Mayaben has also specifically admitted in her deposition that she has disposed of the said block of Gokulnagar and now, she is not the possession of the said block. She has further stated that after the death of her husband, she is unable to pay the installment of the said block to Gujarat Housing Board and therefore, she has disposed of the said block. In view of this fact, I come to conclusion that the Defendant No. 2/1 tenant Mayaben has acquired alternative accommodation in Gokulnagar, Gorti. As I have discussed earlier that it is well established position of law that once the Plaintiff has proved that the Defendant-tenant has acquired alternative suitable accommodation then the burden lies on the tenant to prove that it is not suitable accommodation. In the present case, It is an admitted fact that the Defendant No. 2/1 Mayaben has acquired alternative suitable accommodation in Gotri and it is proved by the Plaintiff. But in this case the Defendant No. 2/1 has not lead any sufficient evidence to show that the premises of Gokulnagar was not sufficient for herself and her family members and she has not produced any documentary evidence in support thereof. Under these circumstances, I can safely say that the Defendant No. 2/1 has acquired alternative suitable accommodation.
It appears from the record that the Trial Court has specifically found that Defendant No. 2/1- Mayaben, has also acquired the premises, in view of the family requirement, the landlord has clearly established that the Defendant No. 2/1 has also acquired suitable accommodation.
In view of the concurrent findings and limited jurisdiction, I am in complete agreement with the findings arrived at and conclusion reached by the Courts below. No substantial question of law involved in this application. Therefore this application deserves to be dismissed. Hence, the same is dismissed.