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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
CIVIL REVISION APPLICATION No. 145 OF 2009
1] Rajaram Keshav Dhobi,
age 66 years, Occu. Pensioner,
R/o Kunde Road, Pawan Chauk,
Opp. Wani Mangal Karyalaya,
Amalner, Dist. Jalgaon.
2] Nago Keshav Dhobi (dead) ...APPLICANT
VERSUS
Narayan Jairam Marathe,
Ae 75 years, Occu. Pensioner,
R/o Kunte Road, Pawan Chauk,
Opp. Wani Mangal Karyalaya,
Amalner, Dist. Jalgaon. ..RESPONDENT.
...
Mr. B.N. Patil, Advocate for applicant.
Mr. S.P. Shah, Advocate for Sole respondent
WITH
CIVIL REVISION APPLICATION No. 190 OF 2009
Narayan Jairam Marathe,
Ae 82 years, Occu. Pensioner,
R/o Kunte Road, Pawan Chauk,
Opp. Wani Mangal Karyalaya,
Amalner, Dist. Jalgaon. ...APPLICANT
VERSUS
1] Rajaram Keshav Dhobi,
age 70 years, Occu. Pensioner,
R/o Kunde Road, Pawan Chauk,
Opp. Wani Mangal Karyalaya,
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Amalner, Dist. Jalgaon.
2] Nago Keshav Dhobi
dead
(Died uring pendency of the suit,
no L.Rs. Are brought on record) ...RESPONDENTS
...
Mr. S.P. Shah, Advocate for applicant
Mr. B.N. Patil, Advocate for respondents
CORAM :- S.S. SHINDE, J.
JUDGEMENT RESERVED ON : 25th August, 2010
JUDGMENT PRONOUNCED ON
ig : 30th September, 2010
JUDGMENT:
Rule, Rule made returnable forthwith. Heard
finally with the consent of parties.
2. Both the Civil Revision Applications are
filed, challenging the Judgment and decree dated 11th
August, 2009 passed by the Adhoc District Judge-1,
Amalner, Dist. Jalgaon, in Regular Civil Appeal No. 15
of 2004. This Court vide order dated 17th February,
2010 in Civil Revision Application No. 190 of 2009
observed that the revision is to be finally heard, at
the stage of admission. Further this Court was pleased
to call record and proceedings and accordingly record
and proceedings are received from the concerned Court.
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The applicant in Civil Revision Application
No. 145 of 2009 i.e. Rajaram Keshav Dhobi is original
plaintiff and the applicant Shri Narayan Jairam
Marathe in Civil Revision Application No. 190 of 2009
is original defendant in Regular Civil Suit No. 159 of
1994. The said suit was filed for possession by the
land-lord/Plaintiffs on the ground of personal
occupation, business and construction for their
residence against the defendants, by claiming a decree
for eviction as provided under Section 13 of the
Bombay rents, Hotel and Lodging House Rates Control
Act, 1947 (here-in-after called as “the Act”).
3. Brief facts as disclosed in the plaint are as
under :
The plaintiffs claimed to be land-lord of the
house property T.P. No. 133 within area of boundaries
mentioned in para No. 1 of the plaint. The western
site of premises as described in para No. 1 let to
the defendant’s father by their uncle at monthly rent
of Rs. 5.25/- as per English Calender. The tiled hut
on area 16 x 10 erected by the land-lord’s ancestor at
the suit premises. (here-in-after called it as “suit
premises”).
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The father of defendant died on 14th October,
1993 in house owned by defendant in Gurukul Co-
operative Housing Society at Amalner. The defendant is
a member of said housing society. He has constructed
three rooms house and residing along with his family
there. It was contended in the plaint that the
defendant unnecessary retained possession over the
suit premises. The plaintiff further contended that,
suit premises are required for residence and business
and for further construction of entire area of T.P.
No. 133. They have prepared a map and sanctioned it by
Municipal Council, Amalner. According to plaintiff,
they have constructed area which was possessed by
them. The remaining proposed construction area is in
possession of the defendant, where they want to
construct kitchen, latrine etc. But could not
construct it. Since the plaintiffs required the suit
premises for residence they issued notice dated 15th
June, 1994 for termination of tenancy to the
defendant. Since defendant failed to handover
possession, the plaintiffs filed Suit bearing Regular
Civil Suit No. 159 of 1994.
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4. The defendant resisted the claim by filing
written statement (Exh. 14). The plaintiffs bonafide
requirement of suit premises was disputed by the
defendants. It was also stated in the written
statement that the suit is bad for non-joinder of
necessary/certain parties. It was also stated in the
written statement, that plaintiffs did file Regular
Civil Suit No. 104 of 1974 against the father of the
defendant and igsaid suit came to be dismissed.
Therefore, principle of res-judicata squarely applies
to the case, and therefore, Regular Civil Suit No. 159
of 1994 being barred by principle of res-judicata,
should not be heard at all by the Trial Court. The
written statement also includes other contentions of
the defendant.
5. The Trial Court after closing of the
evidence adduced by the parties, written notes of
arguments (at Exh. 256 and Exh. 258) respectively,
framed necessary issues for determination. The Trial
Court has framed as many as seven issues for its
determination and consideration. So far personal and
bonafide requirement of the plaintiff is concerned,
the issue No. 2 was framed by the Trial Court and said
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issue has been answered in negative. The issue No. 4
i.e. “Whether defendant prove that suit of the
plaintiff is false?” is answered in the negative. The
another issue i.e. Issue No. 5-A ” whether suit is
barred by principle of res-judicata?” the said issue
is also answered in negative. However, the Trial Court
held against the plaintiffs on the point of bonafide
requirement of the suit premises, and further held
that the plaintiff is not entitled for possession.
It appears that the Original plaintiff has
filed application for amendment of the plaint. By way
of said amendment, the plaintiffs pleaded that the
defendant has built and acquired suitable residential
house in Gurukul Co-operative Housing Society at
Amalner, and the defendant is residing therein with
his family members. It appears that by way of said
amendment the ground was taken in the plaint, that
defendant possessed his own house, he is residing in
the said house and on that ground, the Court can pass
the necessary decree in respect of suit premises. The
original defendants filed reply to the amended plaint.
It further appears that at the time of final hearing
of the suit, the Trial Court, was aware about the
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amendment brought by the plaintiff. However, it
appears that, no separate issue was framed in respect
of plaintiff’s assertion that the original defendant
has constructed and acquired his own house in Gurukul
Co-operative Housing Society at Amalner, and he is
residing there with his family members.
6. The Trial Court, dismisseded the suit with
costs, and decree was drawn accordingly.
7. Though the Trial Court, dismissed the suit,
the issue No. 4 i.e. ” whether defendant prove that
the suit of the plaintiff is false? and issue No. 5(A)
Whether suit is barred by principle of res-judicata?”
have been answered in the negative. Being aggrieved by
the findings of the Trial Court on issues No. 4 & 5(A)
in Regular Civil Suit No. 154 of 1994, the original
defendant i.e. Narayan Jairam Marathe filed Civil
Appeal No. 14/2004 before the Adhoc District Judge-1,
Amalner, Dist. Jalgaon. The original plaintiff i.e.
Rajaram Keshav Dhobi also filed Civil Appeal No. 15 of
2004, challenging the judgment and decree in Regular
Civil Suit No. 159 of 1994. The specific contention
was raised in the said appeal that the issue regarding
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assertion of the plaintiff that the defendant has
constructed and acquired his own house in Gurukul Co-
operative Housing Society at Amalner, and he is
residing with his other family members has not been
framed by the Trial Court.
8. It appears that Adhoc District Judge-1,
Amalner, passed order below (Exh. 1) in Civil Appeal
NO. 15 of 2004, thereby framed the issue i.e. “Whether
plaintiffs prove that defendant has acquired
residential house in Gurukul Kripa Cooperative Housing
Society at Amalner and thus built/acquired vacant
possession of a suitable residence?. The said issue,
was referred to lower Court for Trial. The lower Court
was permitted to record additional evidence, if
required. The lower court was directed to try the
issue referred and shall return the evidence, if any
to Appellate Court together with its findings thereon
and reasons therefor, within a period of three months.
The parties were directed to remain present on 16th
August, 2008. the record and proceedings were sent to
lower Court.
On perusal of the records, it appears that
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said order dated 24th July, 2008 attained finality and
same was not challenged by the defendant before Higher
Court.
The Joint Civil Judge, Junior Division,
Amalner, after hearing the plaintiff as well as
defendant, and after taking into consideration
evidence brought on record answered additional issue
in the affirmative, and Record and proceedings of the
suit were sent back to Adhoc District Judge-1, Amalner
along with original record in respect of the Judgment
and Order dated 9th January, 2009 on additional issue
to the Adhoc District Judge-1, Amalner.
9. It appears that the original defendant filed
cross objection Under Order 41 Rule 26 of Civil
Procedure Code, aggrieved by the Judgment and Order
dated 9th January, 2009 passed by the Joint Civil
Judge, Junior Division, Amalner on additional issue in
Regular Civil Suit No. 159 of 1994.
10. The Adhoc District Judge-1, Amalner delivered
the final Judgment and Order dated 11th August, 2009,
by which Civil Appeal No. 14 of 2004 filed by the
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original defendant i.e. Revision applicant in Civil
Revision Application No. 190 of 2009 came to be
dismissed, and Civil Revision Application No. 15 of
2004 filed by the plaintiff came to be allowed. The
Judgment and Order passed by the Joint Civil Judge,
Junior Division, Amalner, in Regular Civil Suit No.
159 of 1994 was set aside and following order was
passed :-
”
The suit is hereby decreed.
The defendant is hereby directed to
deliver the vacant possession of the
suit premises as described in plaint
para NO. 1 to the plaintiff within theperiod of two[2] months from the date of
order.
The plaintiff is entitled for the
mense profits from the date of the suittill handing over of the possession.
The cross objection filed by the
defendant is hereby dismissed.”
11. The Counsel appearing for the revision
applicant i.e. Original defendant in Civil Revision
Application No. 190 of 2009 submitted that the premise
in Gurukul Sahakari Gruh Nirman Sanstha, Amalner
cannot be said to be suitable alternate accommodation
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of the defendant. The said premise is insufficient for
all the members who were and are residing in the suit
premises as a tenant. Further, the Son of Narayan by
name Prakash is residing separately in the premise in
Gurukul Housing Cooperative Society, at Amalner. Thus,
premises at Gurukul Co-operative Housing Society is
not available to the defendant for his residence. It
is further submitted that after earlier suit
instituted by the plaintiff for eviction on the ground
of bonafide requirement, the present suit, was not
maintainable on the ground of bonafide requirement, in
absence of any fresh cause of action. It is further
submitted that admittedly, Jairam Marathe was the
original tenant. On his death his heir i.e. Narayan as
well as Anil both have inherited the tenancy rights of
Jairam. Therefore, Anil was also a necessary party to
the suit for eviction, when he was earlier and
presently residing in the suit premises. The suit was
instituted without adding him party, is suffers from
non-joinder of necessary parties. The second suit
instituted by the plaintiff on the ground of, bonafide
requirement was also barred. The learned Counsel
invited my attention to the grounds taken in appeal
memo and also written statement which was filed before
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the Courts below, and submitted that the Civil
Revision Application deserves to be allowed.
12. The learned Counsel appearing for Revision
applicant i.e. Ori. Plaintiff in Civil Revision
Application No. 145 of 2009 invited my attention, to
the grounds taken in the application and submitted
that as per Section 13(1)(g) of the Act, the land-lord
can recover possession of the premises for reasonable
and bonafide requirement for occupation for himself or
by any person for whose benefit the premises are held.
The Learned Counsel, submitted that the applicant is
retired from the service, and the present construction
is not sufficient for him and his family members for
residence as well as for occupation. The Courts below
have failed to consider the reasonable and bonafide
requirement, inspite of applicant pleaded details of
his family members and has also, in evidence given
details of the same. It is further submitted that the
reasonable and bonafide requirement of the land-lord’s
family members, who are dependent on the land-lord for
the purpose of residence or economic consideration can
be considered. As the requirement of, land-lord and
for the sake of setting the family members in business
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land-lord can seek eviction of tenant. The plaintiff
has successfully led evidence, detailing the need and
also how present premises in his possession is
inadequate for his whole family which is ever
increasing. Therefore, according to the Counsel
appearing for the Ori. Plaintiff, eviction on
reasonable and bonafide requirement, the Courts below
should have allowed the suit of the plaintiff.
13. I
have given due consideration to the
arguments advanced by the learned counsels appearing
for the respective parties. I have also perused the
Civil Revision Application along with its annexures
and record and proceedings which are received from the
lower Appellate Court.
14. The revision can be entertained by this
Court, in a case no appeal lies from the decision of
the subordinate Court, and if such subordinate Court
appears to have exercise his jurisdiction not vested
in it by law, or to have failed to exercise a
jurisdiction so vested, or to have acted in the
exercise of its jurisdiction illegally or with
material irregularity. Under Section 115 of the Civil
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Procedure Code, this Court cannot re-appreciate
evidence and cannot, set aside the concurrent findings
of the Courts below, by taking different view of the
evidence. This Court, empowered to interfere with the
findings of fact, if the findings are perverse or
there has been a non appreciation or non consideration
of the material evidence on record by the Courts
below.
15. The
igprinciple grievance in Civil Revision
Application No. 145 of 2009 filed by the original
plaintiff appears to be that the reasonable and
bonafide requirement of the plaintiff has not been
properly appreciated, by the Courts below. It was the
contention of the plaintiff that the suit premises is
reasonable and bonafide requirement of the plaintiff,
in view of the number of family members dependant upon
the plaintiff and also the plaintiff is retired from
the service and the present construction /residence is
not sufficient for him and his family members for
residence, as well as occupation. In this respect
Joint Civil Judge, Senior Division, Amalner, had
framed the issue No. 2 and said issue, had been
answered in the negative. The Trial Court, has
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considered the oral evidence adduce on behalf of the
plaintiff. In para No. 12 of the Judgment, the Trial
Court has referred evidence of plaintiff and his
witness. The Court, has also referred to the
documentary evidence at (Exh. 65 to Exh. 89). The
Court has also considered, the other witness examined
on behalf of the plaintiff. The Court has also
referred to the evidence of defendant in same
paragraph. In para No. 13 of the Judgment, the Court
has also referred to Section 13(1)(g) of the Act. The
Court has dealt with the contention of the plaintiff
about his bonafide requirement of the suit premises in
para No. 15. It was recorded in the said paragraph
that the plaintiff’s case is that he is residing along
with his wife,two sons, a daughter-in-law and two
grand sons since the year 1998. Thus, the constructed
rooms are insufficient for their residence. The Court
has further referred to the contentions of the
plaintiff that the photo studio is in one room and
customary washer business working is in another room
and only in one room, all members of the family are
residing. The Trial Court in para No. 21 has referred
to the submissions of the defendant on the aspect of
bonafide requirement of the suit premises of the
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plaintiff. The Court has referred to the relevant
documentary proof and also to the Commissioner’s
report along with maps at (Exh. 139 and 203) and held,
that this evidence is found in corroboration of
defendant’s submission. The Court has given detail
findings about the Commissioner’s report in said
paragraph. The Court has also recorded the finding
that the Studio business has not been running in suit
premises, and both the sons of Plaintiff Nos. 1 & 2
are shifted at Pune. The Court has also referred to
the cross-examination of the plaintiff in which he
admits that one room out of constructed rooms was let
out to the others by them. The Court, has also
recorded in para No. 22 that 2/3rd portion which is in
possession of the plaintiff is containing four rooms
at suit premises as well as another property No. 81/2
available to them nearby the side of the suit
premises. In para No. 28, 29 & 30 of the Judgment, the
Court taking into consideration another property T.P.
No. 81/2 at short distance as well as open space site
available to plaintiff to meet their requirement of
alleged construction of latrine etc. The Trial Court,
held that the plaintiff failed to prove their
reasonable bonafide requirement.
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16. The plaintiff aggrieved by the findings of
the Trial Court, preferred appeal. In appeal also in
para No. 61 the Appellate Court held that the
plaintiff has failed to prove that the suit premises
are required for reasonable and bonafide requirement
by the plaintiff for their occupation. In substance
the Appellate Court, has confirmed the findings of the
Trial Court, on the point of bonafide requirement of
the suit premises. Therefore, there are concurrent
findings of facts recorded by the Courts below, that
the land-lord/plaintiff failed to prove that the suit
premises are reasonably and bonafide requirement of
the plaintiff for their occupation. Both the Court
have taken into consideration the adjoining property
of the plaintiff, and also the house owned by his son
at Pune. The Court, has also recorded the finding that
the 2/3rd portion contains four rooms. Therefore, there
are concurrent findings of facts in consonance with
the evidence brought on record by the parties. I do
not find, that the concurrent findings recorded by the
Courts below are perverse. Therefore, Civil Revision
Application No. 145 of 2009 filed by the original
plaintiff’s is devoid of any merits.
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17. The Civil Revision application NO. 19o of
2009 is filed by the Original defendant. The principle
grievance which is raised, in this Civil Revision
Application is about maintainability of Regular civil
Suit No. 159 of 1994. According to the revision
applicant, the original plaintiff did file Regular
Civil Suit No. 104/1974 on the ground of bonafide
requirement, and since the said suit was dismissed,
the Regular Civil Suit No. 159/2004 being barred by
the principle of res-judicata was not maintainable. In
this respect, both the courts, have held against the
Revision applicant / Ori. defendant. The Trial Court,
has frame specific issue on this aspect i.e. issue No.
5(A) “Whether suit is barred by principle of res-
judicata? same is answered in the negative. While
answering the said issue. The Trial Court, has
discussed this issue from para No. 35 onwards. The
Trial Court, has referred to the Judgment of the Apex
Court in a case of “Surajmal V/s. Radheshyam, reported
in AIR, 1988 SC” and more particularly para No. 8 of
the Judgment, and also placed reliance on reported
Judgment in the case of ” Mangharam Chuharmal V/s.
B.C. Patel and others, reported in AIR, 1972 Bombay
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46″, and held ratio laid down in the said Judgments is
squarely applicable in the facts of this case. Hon’ble
Supreme Court in case of “Surajmal V/s. Radheshyam”
cited supra has held thus :-
” Where a suit for eviction from
premises comprising of shop on ground of
bonafide need was dismissed, the second
suit on the same ground would be
competent.
ig The bonafide need must be
considered with reference to the time
when a suit for eviction is filed and it
can not be assumed that once the
question of necessity is decided against
the land-lord it has to be assumed that
he will not have a bonafide and genuine
necessity ever in future.”
18. Therefore, in my opinion,looking to the facts
of this case and more particularly, pleadings in the
plaint that the defendant has constructed his own
house and he is residing along with his family
members, appears to be new pleading taken in Regular
Suit No. 159 of 1994 by way of amending the plaint in
the year 2004, and therefore, the suit was
maintainable. The Appellate Court, has also held that
the suit was not hit by principal of res-judicata.
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Therefore, there is no substance, in the contention
raised by the Counsel for the original defendant that
the Regular Civil Suit No. 159 of 1994 was hit by
principles of res-judicata.
19. So far as framing of additional issue by the
Appellate Court, and referring it to the Trial Court,
for recording the finding on additional issue i.e.
“Whether the plaintiff proves that the defendant has
acquired residential house in Gurukul Kripa Co-
operative Housing Society at Amalner and thus
build/acquired vacant possession of a suitable
residence?” is concerned, the order dated 24th July,
2008 passed by the Adhoc District Judge-1, Amalner,
referring this issue to the Trial Court, attained
finality and same was not challenged by the defendant.
Therefore, the Trial Court, after taking into
consideration, the rival submissions answered the said
issue in the affirmative. Therefore, there is no
substance, in the contention of the Counsel appearing
for the revision applicant / Ori. Defendant, that the
Appellate Court, was not justified in referring
additional issue to the Trial Court, for giving the
findings and for recording additional evidence, if
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felt necessary. It is true, that after the additional
issue was answered by the Trial Court, the Original
defendants filed cross-objections before the Appellate
Court, however, said cross-objections are negatived by
the lower Appellate Court.
20. Both the Courts have held that the defendant
failed to prove that the suit of the plaintiff is
false. The specific issue was framed in that respect
and contention of the defendant, that the suit of the
plaintiff is false has been negatived by the Courts
below.
21. The main ground, on which the Appellate Court
set aside the decree passed by the Trial Court, is
that the defendant is built/acquired house having
necessary facilities and same is suitable for the
residence, and further defendant has failed to produce
positive evidence to show that the house has
built/acquired by him is not suitable for his
residence. The Trial Court, as well as Appellate Court
held that the defendant has acquired/built vacant
possession of suitable residence for himself and his
family members at Gurukul Co-operative Housing Society
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at Amalner, and further held that plaintiff entitled
for the relief of recovery of possession of suit
premises.
22. The Trial Court while considering the
additional issue referred by the Adhoc District
Judge-1, Amalner, had given hearing to the parties,
had also allowed them to led their evidence. The Trial
Court, in para No. 10 has referred to the provisions
of Section 13(1) (l) of the said Act. The said
provision reads thus :
" Section 13 - When landlord may recover possession :- (1) Notwithstanding anything contained in this Act, a landlord shall be
entitled to recover possession of any
premises if the Court is satisfied-
(a) ………………………..
(L) That the tenant after the coming
into operation of this Act has built,
acquired vacant possession of or been
allotted a suitable residence.”
The Trial Court, has referred to the
documentary evidence, in para No. 13. The Trial Court,
has referred to the notice sent to defendant (Exh.
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228), extract of assessment of house of defendant
(Exh. 79), voter’s list(Exh.92), electric bill (Exh.
133) and also other documents. The Court, has also
referred to the documents produced on behalf of the
defendant i.e. voter’s lists (Exh. 291,292 and 391),
letter of gas connection (Exh. 293), electric Bills
(Exh. 295 to 298) etc. The Court, has referred in
para No. 14 to the affidavit of examination-in-chief.
In examination-in-chief the plaintiff, contended that
the defendant has purchased plot bearing T.P. No.
184/2 (A) of 1500 Sq. feet in Gurukul Graha Nirman
Sahakari Sanstha, Amalner, in his own name and he has
constructed the spacious house of three rooms
consisting of toilet, bathroom, hall etc., and
remaining plot is open. Defendant has constructed the
house in the year 1988-89 and since 1990-1991,
defendant and his family members are residing in the
said house. The plaintiff has filed several documents
showing that defendant having a plot bearing T.P. No.
184 in Gurukul Shahakari Society. In para No. 15 the
Trial Court has observed that ” it is pertinent to
note here that defendant has admitted that he is
having plot No. 14 in his name, as alleged by the
plaintiff.” (emphasis supplied)
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23. The Trial Court, has further dealt with the
contention of the defendant that though the said plot
is in the name of the defendant, the defendant was
never residing in the said house. However, the Court
has referred in para No. 16, the death certificate of
father of the defendant Jairam Marathe (Exh. 65).
Perusal of death certificate (Exh. 65) shows that
Jairam Marathe died in the year 1993 in the house at
Gurukul Society which is his permanent address as
mentioned in the certificate. In para No. 17, the
Trial Court, has further referred to the voter’s list
at (Exh. 92) of assembly election in the year 1998 of
election booth No. 151, Amalner, to show that
defendant, his wife Vithabai, son Prakash and
daughter-in-law Mirabai are residing in Gurukul
Housing Society, and their names are included in
voter’s list of booth No. 151. The Trial Court, has
observed that on perusal of the voter’s list it
transpires, that the name of defendant and his family
members are appearing in both the voter’s list, and
further observed that voter’s list cannot be taken
into consideration. In para No. 18, the Trial Court,
has referred electric bill of house of defendant at
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Gurukul Housing Society (Exh. 133), which shows that
the electric connection is in the name of defendant.
The defendant further placed on record (Exh. 295 to
298), to show that the electric bills of the suit
house is in his name, and therefore, the Trial Court,
has not taken into consideration the electric bills.
In para No. 19, the Court has referred to the
submissions of the plaintiff and commission report
(Exh. 41). As ig per the report, the T.P. Plot No.
184/2(A) in Gurukul Housing Society, Amalner, is
having area of 1500 Sq. ft., there is one hall, one
kitchen, one store room, open space of 5.9×7.3 feet,
toilet and bathroom in the said house, and remaining
plot is open. In para No. 20 the Court has further
considered the death certificate of wife of the
defendant (Exh. 290) and recorded the submission that
defendant wife Vithabai died in the suit house.
However, the Trial Court, observed in para No. 20 that
the defendant in his cross-examination has admitted
that he had given information regarding death of his
wife with Municipal Council for getting her death
certificate. The Court has referred to the
examination-in-chief of the defendant in para No. 21
and, as per original Written Statement of the
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defendant, he stated that his father died in the suit
property and after death of his father, he along with
his wife, wife of deceased Hari and wife children’s of
Hari’s sons Anil and Ramesh are residing in the suit
property.
24. The Trial Court, has taken into consideration
(Exh. 228) i.e. the acknowledgment of notice sent to
the defendant on
ig the address of Gurukul Housing
Society at (Exh. 5), the summons of the suit received
by the defendant sent on the address of Gurukul
Housing Society. The (Exh. 84) brought on record, by
the plaintiff i.e. receipt of money order of rent sent
by defendant to the brother of plaintiff from the
address of Gurukul Housing Society. Taking into
consideration the evidence on record, the Trial Court,
recorded the finding that “on perusal of all these
documents it reveals that defendant is residing in
Gurukul Housing Society since many years. He has also
received summons of the suit and notice on the same
address. Furthermore he himself has sent money order
of rent from the said address. All these things goes
to show that defendant is having his residence in
Gurukul Housing Society. Though defendant has tried to
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bring on record evidence showing his residence of suit
property. From the above it is clear that he is
residing in Gurukul Housing Society.” (emphasis
supplied).
25. In para No. 23, the Trial Court, has referred
to the “cross-examination of the defendant, in which
he has admitted that he is having house in his name in
Guaukul Housing ig Society and he is having electric
connection and ration card on the same address and his
name entered in the record of Municipal Council in the
column of possessor”. (emphasis supplied).
26. The Trial Court, has discussed the evidence
of defendant’s son Prakash who has stated in his
evidence that since 1988, he along with his wife and
three children’s are residing in Gurukul Housing
Society, and his parents and his uncle’s family never
residing in the Gurukul Housing Society. Further the
plaintiff has brought on record the evidence, in the
nature of voter’s list of Assembly election of 1995
(Exh. 279), showing name of the defendant, his wife,
his son and daughter-in-law. Taking into
consideration, rival contentions and evidence on
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record adduced by the parties, the Trial Court, has
answered the additional issue and held that, the
plaintiff proved that defendant has acquired /built
vacant possession of suitable residence for himself at
Grukul Kripa Co-operative Housing Society.
27. The Appellate Court, has considered the
additional issue in para No. 46 of its judgment. The
Appellate Court,
ig has observed that the defendant
during his cross-examination has specifically,
admitted about the house constructed at Gurukul Co-
operative Housing Society, Amalner. The Appellate
Court reproduced part of the cross-examination in
vernacular language in the said para. On reading the
portion of the cross-examination available in
vernacular language in para No. 46, it clearly
emerges, that the defendant has admitted that he is
member of Gurukul Sahakari Grahanirman Housing
Society, Amalner. This society has allotted plot to
its members. The size of the plot is 3000 Sq. ft. It
further appears, that the defendant has voluntarily
made a statement, in the cross-examination that out of
3000 Sq.ft., each member has been allotted 1500 Sq.
ft. land. He has further admitted in his cross-
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29
examination, that he has constructed the house on the
said plot, in the said society. It is further
admitted, in his cross-examination that the electirc
connection in the newly constructed premise is in his
name, even he holds ration card in which his name and
his family members names are mentioned. In the said
ration card the name of Gurukul Housing Society have
also mentioned. Therefore, in para No. 47, the
Appellate Court, recorded the finding that defendant
is the member of Gurukul Co-operative Housing Society,
Amalner, a plot allotted to the defendant, the
defendant has constructed on the said plot and the
defendant is residing in the said house along with his
wife and children.
28. Therefore, on careful reading of the findings
recorded by the Courts below. It clearly emerges, that
the revision applicant i.e. original defendant is a
member of Gurukul Co-operative Housing Society,
Amalner, plot was allotted to the defendant, defendant
has constructed the house on the said plot and the
defendant is residing in the same house along with his
wife and children. The concurrent findings of facts
on this issue recorded by both the Courts below are
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absolutely in consonance with the evidence brought on
record by the plaintiff. The said findings are
recorded, taking into consideration the entire
evidence on record by the plaintiff and defendant.
When both the Courts below on facts concurrently held
on this issue against the defendant and the applicant
has utterly failed to prove any perversity in those
findings, in my opinion, any interference in
revisional jurisdiction is unwarranted.
29. The Appellate Court, has taken into
consideration that the plaintiff has filed suit for
the relief of recovery of possession of the suit
property from the defendant, on the ground that
defendant has acquired and build, vacant possession of
suitable residence, and also on the ground of bonafide
requirement of suit premises in para No. 65 of its
Judgment. In my opinion, the Appellate Court, has
rightly arrive to the conclusion that the evidence
which has come on record is sufficient to fulfill the
condition as laid down in Section 13(1) (L) of the
said Act, that the defendant has acquired
accommodation for himself and for his family members.
The Appellate Court, has further recorded finding in
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para 50 of the Judgment that the defendant has never
came with a case that the house at Gurukul Co-
operative Housing society as constructed by him is not
suitable for his residence and for residence of his
family members. On the contrary, the defendant in his
defense has constantly, contended that his son Prakash
is residing in the house constructed at Gurukul
Cooperative Housing society, Amalner along with his
family. Therefore, the Appellate Court, taking into
consideration the evidence on record, recorded the
finding that the plaintiff has succeeded to prove that
the defendant has acquired vacant possession of a
suitable residence.
30. Taking into consideration, the arguments
advanced on behalf of the learned Counsels for the
respective parties, the findings recorded by the
Courts below, the record and proceedings made
available for perusal and other documents brought on
record by the parties, I am of the opinion that the
Courts below have taken plausible view in consonance
with the evidence brought on record by the parties,
Both the Civil Revision Applications are rejected,
interim relief if any stands vacated. Rule discharged
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accordingly. Record and proceedings be sent back to
the concerned Court forthwith.
31. In view of the dismissal of the Civil
Revision Applications pending, the Civil Applications
if any are disposed of accordingly.
ig [S.S. SHINDE, J]
SDM*145.09 CRA
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