Dismissed

Shantaram Vithoba Pathare v. Ramchandra Ganesh Chitale and Ors.

Bombay HC23 Oct 2008WP/4381/1994

Case brief

AI extract

What is this about?

The High Court dismissed three writ petitions challenging eviction decrees under the Bombay Rent Act. The court held that the sub-tenancy was unlawful without landlord consent due to change of user, finding no basis to interfere with the trial court's order for possession despite the original tenant's death.

What did the court decide?

Time granted to vacate premises until 31st May, 2009.

Shantaram Vithoba Pathare Vs Ramchandra Ganesh Chitale and… — Property and Title | Bombay HC (2008)

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ssm

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO. 4381 OF 1994

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WITH

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WRIT PETITION NO.4382 OF 1994

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WITH

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WRIT PETITION NO.4383 OF 1994

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Shantaram Vithoba Pathare,
Aged about 50, Occu. Proprietor,
Sharmila Welding Works,
R/o. Bazar Peth, Chiplun,
Tq.Chiplun, Dist.Ratnagiri...Petitioner.

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Vs.

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1. Ramchandra Ganesh Chitale, Aged about 56 yrs., Occu.Service, R/o. Pag-Chiplun, Tq.Chiplun, at present residing at Bombay.

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2. Bhaskar @ Bhalchandra Chitale, Aged about 63 years, Occu. Service, R/o. Pag-Chilplun, at present R/o Bombay.

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3. Vasant Ganesh Chitale (Since deceased through L.Rs.)

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3A) Varsha Vasant Chitale, Aged 68 years, Widow, Occu. Household.

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3B) Amol Vasant Chitale,
Aged 35 years, Son
both R/o. 6, Prachi Apartment,
Civil Lane, Near Little
Flower School,
Solapur-413 003.

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3C) Sou. Sanjeevani V. Joshi, Aged 34 years, daughter R/o. B/214, Chandranil Society, Sinhagad Road, Pune-411 030.

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( 2 )

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4. Sumant Ganesh Chitale, Aged 51 years, Occu. Service

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5. Sou. Malati Badrinath Thosar, Aged about 60 years, Occu.Service, R/o. 4 and 5- Pag-Chiplun, at present residing at Bombay.

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6. Anant Sakharam Khare, Since deceased through his L.Rs.

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6A) Uday Anant Khare, Aged about 36 years, Occu.Service, R/o. Chiplun, Khare Chawl, Dist. Ratnagiri.

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6B) Suhas Anant Khare, Aged about 33 years, Occu.Service, R/o. Chiplun, Khare Chawl, Dist. Ratnagiri.

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6C) Sau.Vaishali Jayant Kale, Aged 44 years, Occu. Household, R/o. Bhutkar Wadi, Radhabai Niwas, Opp. Anand Clinic, Ahmednagar-414 001.

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6D) Sou.Rohini Arvind Chakradeo, Aged about 42, Occu.Household, R/o. Sai Nagar, Building No.A-5, Vithal Wadi, Near Jakat Naka, Pune-30.

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6E) Sou.Shaila Rajendra Bhide, Aged about 38, Occu. Household, R/o.Plot No.27, Balaji Nagar, Virugam Bankam, Madras-92.

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6F) Smt.Indubai Anant Khare, Aged about 45 years, Occu.Household, R/o. Khare Chawl, Chiplun, District Ratnagiri.

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7. Arun Mahadeo Lad,
Aged about 48 years,
Occu. Proprietor Sonali General Stores,
R/o.Bazar Peth, Chiplun,
District Ratnagiri.

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( 3 )

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...Respondents.

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Mr.P.K.Dhakephalkar, Sr. Counsel for the Petitioner.
Mr.R.S.Datar for Respondent Nos. 1 to 5.

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CORAM : ANOOP V.MOHTA, J.

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DATED : 23rd October, 2008.

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JUDGMENT:-

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. Heard. By consent of all the parties, all these
matters are tagged together. The basic facts are
common, the Petitioner is common and the main premises
in question is common, therefore, this common
Judgment.

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2. The Writ Petition No.4381 of 1994 is filed by
Petitioner- Original Defendant No.2. The Original
Plaintiffs filed Regular Civil Suit No.88 of 1983 in
the Court of Civil Judge, Junior Division, Chiplun,
District Ratnagiri for the possession of the Suit
premises under the Bombay Rent Act on the ground of
change of user in the Suit premises by Defendant No.2.

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3. The Writ Petition No.4382 of 1994 is also filed by
the Petitioner- Original Defendant No.2. The Original
Plaintiffs filed Suit No.87 of 1983 in the Court of

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( 4 )

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Civil Judge, Junior Division, Chiplun, District
Ratnagiri for possession of the suit premises against
Defendant Nos. 1 to 3 on the ground of subletting
portion of the Suit premises by Defendant No.1 to
Defendant Nos. 2 and 3.

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4. The Writ Petition No.4383 of 1994 is filed by the
Petitioner- Original Defendant No.2. The Original
Plaintiffs filed Regular Civil Suit No.86 of 1983 in
the Court of Civil Judge, Junior Division, Chiplun
District Ratnagiri, for possession of the Suit
premises against Defendants on the ground of
subletting of portion of Suit premises by Defendant
No.1 to Defendant No.2 and 3.

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5. As there is eviction decree passed, therefore,
challenge the impugned Judgment and Order only by
Defendant No.2 and not by other Defendants i.e.
Original Tenants.

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6. The basic common facts are as under:-

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7. The disputed suit premises situated at Chiplun,
District Ratnagiri Municipal House No.1769, City
Survey No.5470 at Bazaar Peth admeasuring 56’ x 22’

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( 5 )

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and adjoining open space.

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8. Before 1940, the Suit premises was owned by one
late Narayan Ramchandra Chitale and was leased out by
him to one late Shri Sakharam Hari Khare.

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9. Before 1958 the business in the name and style as
Union Motor Transport Service was run on the said
disputed Suit premises till nationalization of the
passengers transport services.

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After nationalization of the passengers
Transport services, business of good transport
services was started.

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10. In the year 1958, the said business came to Shri
Anant Sakharam Khare, after demise of his father Shri
Sakharam Hari Khare.

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11. In the year 1969, thereafter, Original Defendant
No.1 Anant Sakharam Khare and present Petitioner
Defendant No.2 Shri Shantaram Vithoba Pathare, started
a welding business namely "Sharmila Welding Works" in
the Suit premises by way of partnership.

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( 6 )

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12. In the month of March, 1982 Defendant Nos.1 and 2
have paid rent of the Suit premises upto 31/12/1982.

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13. On 21/06/1982, the Original Plaintiffs issued
notice to Petitioner- Defendant No.2 and Defendant
No.1 Anant Sakharam Khare for eviction from the suit
premises on the ground of change of user and
subletting.

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14. On 21/07/1982, Original Defendant No.1 and the
present Petitioner replied the notice through their
Advocate and denied the allegations.

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15. The Plaintiffs alleged that the Suit premises was
in possession of Defendant No.1 on rent of Rs.40 per
month for his transport business known as "Union Motor
Service". After nationalization of transport business
Defendant No.1 started business of goods transport and
thereafter, without permission of L/L started business
of welding works by name "Sharmila Welding Works" with
Defendant No.2 and the said business being different
nature there is change of user of the same illegally
and unauthorizedly and therefore, Plaintiffs are
entitled for eviction of them and ask for possession.

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( 7 )

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16. The Plaintiffs also alleged that some portion of
Suit premises also given to Defendant No. 3 illegally
and unauthorizedly who is carrying the business of
"Sonali General Store" which is also different nature
of business.

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17. Defendant No.1 by filing written statement
resisted the Suit and according to him description of
the Suit premises given by Plaintiff is incorrect and
denied that the suit property was taken on rent for
transport business on monthly rent. According to him
suit premises was taken on yearly rent of Rs.480/- and
after the death of his father Original Tenant
Defendant No.1 has carried out various sorts of
business and even Plaintiff has accepted rent without
complaining and the said fact also within the
knowledge of Plaintiff. Since, 1969 Defendant No.1 is
carrying business of "Sharmila Welding Work" with
Defendant No.2 in a partnership and Defendant No.3 was
servant of Defendant No.1 appointed as Manager to look
after the shop "Sonali General Stores". It was denied
that Defendant Nos. 2 and 3 are sub-tenants.

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18. On 25/11/1987, during the pendency of the suit
the Original Defendant No.1 Anant Sakharam Khare

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( 8 )

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reported to be died and Defendant Nos. 1-A to 1-F his
legal heirs and representatives brought on record in
the Suit.

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19. On 23/03/1984, Petitioner Original Defendant Nos.
2 and 3 filed their pursis & adopted written statement
filed by Defendant No.1 and resisted the Suit for
possession.

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20. On 18/04/1989, the learned Civil Judge, Junior
Division, Chiplun dismissed all three suits by
Judgment and Decree dated 18/04/1989 by holding that
the Plaintiffs failed to prove that Defendant No.1 has
sublet the suit premises to Defendant Nos. 2 and 3
and also failed to prove that there is change of user
of the suit premises.

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21. On 05/06/1989, being aggrieved by the Judgment
and Decree passed by the Trial Court the Original
Plaintiffs preferred Civil Appeal Nos.39, 40 and 42 of
1989 before District Court, Ratnagiri.

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22. On 23/08/1994, the Joint District Judge,
Ratnagiri allowed the Appeal and set aside the
Judgment and Decree passed by the Trial Court and

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( 9 )

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decreed the suits directing Defendant Nos. 1-A to 1-F
and 2 to handover possession of the Suit premises to
the Plaintiffs.

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23. On 19/10/1994, being aggrieved by the Judgment
and Decree passed by the Lower Appellate Court, the
Petitioner Original Defendant No.2 filed present Writ
Petitions.

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24. Admittedly, all these Petitions are filed by
sub-tenant and not by Original tenant; there is
nothing on record to show written consent/ permission
from the landlord so far as the sub-tenany is
concerned; no partnership deed of any kind placed on
record. The Suit premises was given for transport
business of passengers. The same was stopped by the
Original tenant, Defendant No.1. He had allegedly
lease out the Suit premises to the Petitioner
Defendant No.2 for "Sharmila Welding Works". This
business was altogether different. Thus, there was a
change of user. These facts are clear on the records
which justifies the order and reasoning that the
premises was used other than let out, originally.

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25. There is nothing to justify on record that there

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( 10 )

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was partnership with the Original tenant by the
Petitioners to this new business. Defendant No.1
Original tenant died in the year 1987. The deceased
tenant’s legal heirs and representatives are brought
on record but all remained absent. Therefore, the
averments made against Defendant No.1 and his legal
heirs remained unchallenged. Therefore, due to death,
the firm dissolved unless agreement to the contrary.
Therefore, partnership get dissolved. In the present
case, for want of contrary documents, the present
Petitioner’s sub-tenancy on the premises, in these
background, rightly taken note of in the interest of
justice.

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26. Defendant Nos. 2 and 3, therefore, cannot say
anything about the premises which was in possession of
Defendant No.1. The open site in possession of
Defendant No.1 excluding the site of "Sharmila Welding
Works" and "Sonali General Stores", therefore, rightly
directed to be vacated. Though, there are some
documents prepared by Municipality, yet fact remains
that there is nothing to show registered partnership
and or such partnership.

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27. As recorded, the Original tenant changed the use

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( 11 )

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of the premises than it was originally let out. There
is no dispute/ denial to this fact also by the legal
heirs. The evidence of Plaintiff, therefore, support
his case. The allegations of subletting is also
remained unchallenged. Therefore, merely because the
rent was received even after the termination of
tenancy, that is not a sufficient reason not to grant
decree of possession in the present facts and
circumstances of the case.

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28. In view of above, the order directing the legal
heirs of original tenant, Defendant No.1 vacated the
premises is, therefore, need no interference
specifically at the instance of Petitioner Defendant
No.2.

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29. The submission based upon the Judgment in Arvind
Narhar Wagh Vs Chintaman Ganesh Khare, 1985 Mh.L.J.

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11, that the sub-tenancy is not applicable as the
sub-tenancy was not created lawfully. There is
nothing to justify the valid sub-tenancy. Therefore,
the impugned order needs no interference. Admittedly
there is nothing on record to show that acceptance of
rent by the landlord and/or by the original
tenant/defendant no.1 from petitioner/defendant no.2

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( 12 )

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(Arun). There is nothing further to show the
relationship of landlord and tenant accepted by the
landlord. Therefore, there was no right whatsoever
created in favour of such defendant no.2. Therefore
merely he was doing business since 1989 along with
defendant no.1, who, admittedly not challenged and/or
denied the averments made by the plaintiff/respondent
and as there is no relationship of landlord tenant
proved and/or in existence at any point of time
between the original landlord and defendant
no.2/petitioner, the eviction decree on the ground of
subletting as alleged by the plaintiff, needs to be
accepted.

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30. In Writ Petition No.4383/1994, in view of the
above facts and reasons need no interference in the
impugned order. Here again, as noted, the original
tenant Arun has not challenged the impugned order.
The challenge is by sub-tenant Shantaram/petitioner.
As noted, the Suit was filed for recovery of
possession from the defendants on the ground of
creation of unauthorised sub-tenancy by defendant
No.1/original tenant by the suit premises to Defendant
Nos. 2 and 3. Considering the material placed on
record and as recorded, the plaintiff/landlord proved

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( 13 )

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that defendant no.1 has sub-let the suit premises to
defendants 2 and 3 unauthorizedly without any consent.
With the above reasoning itself, there is no case made
out by the petitioner to interfere with the order of
eviction as ordered against all defendants including
the petitioner. This petition is also challenged only
sub-tenant and not by original tenant.

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31. In Writ Petition No.4382/1994, in view of above
facts and circumstances and as admittedly challenge is
by the petitioner/original defendant no.3 on the
ground of subletting. In this case there is ample
material and evidence to show that the original
plaintiff entered into the witness box and stated that
original defendant no.1 leased out the western portion
of the suit property admeasuring 6’x8’ to defendant
no.2 exclusively who made wooden structure and started
running General Stores under the name and styled as
"Sonali General Stores". Defendant no.1 had no

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concern with the business of defendant no.2 in the
said portion. There is no substantial document to
establish the relationship between the parties.
Merely because defendant no.2 had adopted written
statement of defendant no.1 that itself is not
sufficient as that is not the evidence. The contents

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( 14 )

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of the written statement needs to be proved by the
parties. Therefore, the defendants failed to prove
the contents of the written statement itself
specifically when the oral evidence led by the
plaintiff remained unrebutted. Defendant no.2 (Arun)
did not cross-examine the plaintiff. Neither he
proved his written statement. Defendant no.2 avoided
to enter the witness box. He failed to prove the
relationship as employer and servant when he was
carrying on the business in the suit premises.
Therefore, the plaintiff’s case that he was occupying
the premises through defendant no.1 remained intact.
Therefore, admittedly, sub-tenqancy is without prior
consent of the owner. The possession of defendant
no.2 therefore is unlawful.

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32. In view of this, the impugned order dated
23.08.1994 decreeing the suit against original
defendant no.1 (now the legal heirs) and defendant
no.2 to remove wooden structure from the suit premises
therefore also needs no interference. As noted, there
is no challenge made by defendants 1 and 2 to this
order. The challenge is by defendant no.3 only.

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33. Taking all this into account, therefore, all

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( 15 )

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these petitions are dismissed with no order as to
costs.

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34. The learned counsel appearing for the Petitioner,
on instructions seeks time to vacate the premises..
Considering the fact that the Petitioner is in
occupation since long, time is granted upto 31st May,
2009 on filing usual undertaking by Petitioners and
L.Rs. of the Petitioners on or before 20/11/2008.

Shantaram Vithoba Pathare v. Ramchandra Ganesh Chitale and Ors.

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Shantaram Vithoba Pathare v. Ramchandra Ganesh Chitale and Ors.

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