HIS HOLINESS SHRIMANT JAGATGURU Vs. NARAYAN KAMLU UGAONKAR

JUDGEMENT

(1.) BY this petition the petitioner challenges the order dated 17.8.1983 passed by the District Judge, Nasik, in Civil Appeal No.157/1981. That appeal was filed by the respondent Narayan of whom the present respondents are the legal heirs and representatives, challenging the judgment and decree dated 16.2.1981 passed by the Joint Civil Judge, Junior Division, Nasik, in Regular Civil Suit No.291/1975. That civil suit was filed by the present petitioner claiming therein that the petitioner is owner of House No.4174 situate at Panchavati, Nasik and that the respondent is a tenant of four-room block on the 1st floor of the suit house. The landlord claimed a decree of eviction against the tenant on the ground that the tenant has after coming into force of the Bombay Rent Act, acquired vacant possession of suitable accommodation. The trial court, after considering the evidence on record, held that the tenant had purchased in the name of his two sons and wife a house in the same locality and therefore decreed the suit. The judgment and decree was challenged in appeal by the tenant. The appellate court however allowed the appeal and set aside the judgment and decree. It is this order of the appellate court which is challenged in the present petition.

(2.) THE learned counsel for the petitioner, Shri Abhyankar, urged before me that the trial court had held that in the year 1968-69, a house was purchased in the name of the wife and two sons of the tenant. At the time of purchase, the eldest son Madhukar was 19 years of age and the other son Premanand was below 18 years of age. The wife of the tenant admittedly has no source of income. The trial court therefore concluded that the purchase was made by the tenant himself. The trial court further found that the tenant did not enter the witness-box. He also did not examine his two sons, namely, Madhukar and Premanand, in whose names the house was purchased; but, instead, his son Vijay was examined who candidly stated that he has no knowledge about the purchase of the other house. In the submission of Shri Abhyankar, therefore, the finding recorded by the trial court was based on the evidence on record which clearly indicated that the tenant had secured alternate accommodation and therefore there was no justification for the appellate court to disturb that finding of fact recorded by the trial court. Shri Abhyankar further urged that there is a basic lacunae in the approach of the appellate court inasmuch as the appellate court has observed that because the tenant is presently occupying four rooms, namely, the suit premises, which are very spacious, unless and until the tenant secures accommodation comparable to the suit premises, it cannot be said that he has secured alternate accommodation.

(3.) NOW , considering the rival submissions, the fact clearly emerges that indisputably the tenant has purchased, in the year 1968-69, a house in the same locality. The fact that the two sons in whose names the house was purchased had no source of income clearly leads one to the conclusion that the purchase was made by the tenant in the name of his wife and sons and therefore the real owner was the tenant himself. The appellate court itself has found that the witness of the tenant by name Vijay himself has stated that when the purchase was made, two to four rooms in that house were vacant. In my opinion, the approach of the appellate court that unless and until the landlord establishes that the tenant has secured accommodation which is comparable to his present accommodation, a decree of eviction cannot be passed is basically erroneous. If the landlord establishes that the tenant has secured premises which are sufficient to accommodate the tenant and his family, then, whether or not the premises are comparable to his present accommodation, a decree is liable to be passed. There is material available on record on the basis of which the trial court had come to the conclusion that the tenant has secured suitable accommodation. In my opinion, there was no justification for the appellate court to disturb the finding recorded by the trial court.