Mohmad Ismail H. Husain Kumathe vs Abdul Bashir Husensaheb Waddo

D.K. Deshmukh, J.—This is landlord''s petition challenging the order passed by the Appellate Court dated 14th September, 1989 in Civil Appeal No. 662 of 1987 allowing the appeal and setting aside the judgment passed by the trial Court decreeing the suit of the landlords for eviction of the respondent. The trial Court by its judgment dated 23.9.1987 passed in Regular Civil Suit No. 185 of 1985 had decreed the suit of the landlords on the ground of bonafide need.

The Appellate Court held that the landlords have not been able to establish that the landlords need the premises bonafidely for their personal occupation. The learned Counsel for the petitioner urged before me that the family of the landlord is a very big family and therefore their need ought to have been taken into consideration by the Appellate Court. Perusal of the judgment of the Appellate Court shows that the plaintiff No. 1 had issued notice dated 21.3.1984 to the tenant-respondent alleging that the tenant was in default. It has further observed that at the time when the notice was given, plaintiff No. 1 was shown to be the sole owner of the suit premises. It is thereafter that the names of the other plaintiffs were entered in the revenue record as owners of the property. The Appellate Court has observed that the plaintiffs are Mohammedans by religion and therefore there is no question of it being a joint family property. Perusal of the plaint shows that in the plaint the plaintiffs have not explained as to how they became joint owners of the suit property. The Appellate Court has also found that the petitioner Nos. 2 to 4 are residing separately and are serving at different places. The Appellate Court has observed that the property belongs to the petitioner No. 1 and other petitioner do not have any interest in the property. The Appellate Court has further observed on the basis of the statement of the petitioner No. 1 himself, that all his brothers are residing separately. It is also admitted by the petitioner No. 1 that his sisters are also married and at the time of recording of evidence negotiations for settling the marriage of his youngest sister were going on. The Appellate Court after appreciating the evidence on record, recorded a finding that the plaintiffs have not established by placing material on record that they bonafidely need the suit premises. The Appellate Court had also considered the aspect of comparative hardship properly. The learned Counsel for the petitioners by referring to the judgment in the case of Balabhadra Beharilal v. Premchand Lalchand and Ors. reported in AIR 1953 Nag 144 urged that the need of the entire family of the petitioners should have been taken into consideration. Perusal of the order of the Appellate Court shows that the Appellate Court has taken all the relevant aspects into consideration and has recorded the finding. The learned Counsel for the petitioner was not in a position to demonstrate that any piece of evidence which ought to have been considered by the Appellate Court has been excluded from consideration or that any material which should not be taken into consideration has been considered. Considering the limited jurisdiction of this Court in entertaining petition under Article 227 of the Constitution of India, I do not find that this is a proper case where the finding of facts recorded by the Court below which is based on material on record can be interfered. In the result, the petition fails and is dismissed. However, there will be no order as to costs.

Issuance of certified copy is expedited.