1. The present Civil Revision Application under Section 29(2) of the Bombay Rent Act has been preferred by the applicants- original plaintiffs to quash and set aside the impugned judgment and decree passed by the learned Judge of the Small Cause Court at Ahmedabad dated 29/02/1996 in HRP Civil Suit No. 68/1986 by which the learned trial Court has dismissed the said suit instituted by the applicants-original plaintiffs for recovery of possession/eviction decree as well as the impugned judgment and order passed by the learned appellate Bench of the Small Cause Court, Ahmedabad dated 22/06/2001 in Civil Appeal No. 48/1996 by which the learned appellate Court has dismissed the said appeal preferred by the applicants-original plaintiffs confirming the judgment and decree passed by the learned trial Court dismissing the suit.
2. The applicants-original plaintiffs instituted the suit for recovery of possession/eviction decree on the ground that the respondents-original defendants are in arrears of rent for more than six months; that the suit premises is required by the applicants-original plaintiffs bonafidely for their personal use and occupation as well as on the ground that the respondents- original defendants has put up permanent structure without prior consent/approval of the landlord. It appears that the ground for arrears of rent was not pressed during the trial and, therefore, the applicants-original plaintiffs-landlord asked for eviction decree on the ground of his personal bonafide requirement as well as on the ground that the respondents- original defendants has put up permanent structure without prior approval/consent of the landlord. The suit was resisted by the respondents-original defendants by submitting that as such there was no permanent structure put up by him by which it has caused damage to the property. It was the case on behalf of the respondents-original defendants that as the suit premises was very old made of wooden planks and bamboos and were in dilapidated condition and its roof was broken at several places and it was dangerous to reside in it and as same was likely to cause damage to the property and the persons residing in it, it was necessary to repair the roof at once and, therefore, consequently the roof was repaired and it was submitted that there was no permanent structure put up by him, which has damaged the property. The learned trial Court framed the issues at Exh. 34. Both the Courts below led the evidence, documentary as well as oral and on appreciation of evidence, the learned trial Court held the issues in the negative against the applicants-original plaintiffs and in favour of the respondents-original defendants and consequently the learned trial Court dismissed the suit. Being aggrieved and dissatisfied with the judgment and decree passed by the learned Small Cause Court at Ahmedabad dated 29/02/1996 in HRP Suit No. 68/1986 the applicants-original plaintiffs instituted Civil Appeal No. 48/1996 before the learned appellate Bench of the Small Causes Court at Ahmedabad and by impugned judgment and order has dismissed the appeal confirming the judgment and decree passed by the learned trial Court dismissing the suit. Being aggrieved and dissatisfied with the impugned judgment and orders passed by both the Courts below in dismissing the suit/appeal and not passing the eviction decree the applicants-original plaintiffs have preferred the present Civil Revision Application under Section 29(2) of the Bombay Rent Act.
3. Shri A.I. Surti, learned advocate appearing on behalf of the applicants-original plaintiffs has vehemently submitted that both the Courts below have materially erred in not passing the eviction decree on the ground that the respondents-original defendants has put up permanent structure without the consent of the landlord. It is submitted that it is an admitted position that height of the room was increased to 2 ½ feet and, therefore, the learned trial Court ought to have passed the eviction decree on the ground that the respondents-original defendants-tenants made the permanent structure without prior consent/approval of the landlord. By making the above submission, it is requested to allow the present Civil Revision Application.
4. The present Civil Revision Application is opposed by Ms. Rupal Patel, learned advocate appearing on behalf of the respondents. It is submitted that as such there are concurrent findings of fact given by both the Courts below holding that the applicants-original plaintiffs do not require the suit premises for their bonafide and personal use and also on the ground that the respondents-original defendants has not made any permanent construction/structure, which has caused damage to the property. Under the circumstances, it is submitted that both the Courts below have rightly refused to pass the eviction decree, which are not required to be interfered with by this Court in exercise of powers under Section 29(2) of the Bombay Rent Act.
5. Heard the learned advocates appearing on behalf of the respective parties at length and considered the impugned judgment and orders passed by both the Courts below as well as considered the evidence on record from the Record and Proceedings, which has been received form the learned trial Court. The applicants-original plaintiffs instituted the suit for recovery of possession and for eviction decree on the ground of bonafide and personal requirement of the applicants-original plaintiffs as well as on the ground that the respondents-original defendants-tenants has erected the permanent structure without the consent of the landlord. Both the Courts below, on appreciation of evidence, have negatived the above refusing to pass the eviction decree. There are concurrent findings of fact given by both the Courts below holding that the applicants- original plaintiffs do not require the suit premises for their bonafide and personal requirement and the applicants-original plaintiffs have failed to prove that the respondents-original defendants-tenants has erected the permanent structure, which has caused damage to the property. The findings of fact given are on appreciation of evidence and unless and until it is pointed out that the same are perverse, the same is not required to be interfered with in exercise of revisional jurisdiction.
5.1. Shri Surti, learned advocate appearing on behalf of the applicants-original plaintiffs is not in a position to point out how the finding of fact given by both the Courts below are perverse and/or contrary to the evidence on record. He is also not in a position to point out anything by which it can be said that the respondents-original defendants has put up permanent construction by which the property is damaged.
5.3. Both the Courts below have rightly held that the applicants-original plaintiffs have failed to prove by leading evidence that by raising the height of the room the property has been damaged permanently. Under the circumstances, no illegality has been committed by both the Courts below in refusing to pass the eviction decree. It cannot be disputed that until and unless it is proved that the permanent structure has damaged the property, the eviction decree cannot be passed. Under the circumstances, no illegality has been committed by the learned trial Court in dismissing the suit, which has been rightly confirmed by the learned appellate Court.
6. In view of the above and for the reasons stated hereinabove, there is no substance in the present Civil Revision Application and the same deserves to be dismissed and is accordingly dismissed. At this stage, Shri Surti, learned advocate appearing on behalf of the applicants-original plaintiffs has submitted that any of the respondents, more particularly respondents nos. 1/1, who is residing in the suit premises, may not transfer and/or alienate the suit premises to any other person. Ms. Patel, learned advocate appearing on behalf of the respondents-original defendants has stated at the bar that there is no question of any transfer and/or alienating the suit property to any other person as respondent no. 1/1 is residing in the suit property. She has stated at the bar that so far as other respondents are concerned, there is no further instruction in the matter. Under the circumstances, while dismissing the present Civil Revision Application, it is observed that the respondents-original defendants shall not transfer and/or alienate the suit property to any other person. Rule is discharged. No cost.
(M.R. SHAH, J.) siji