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Rajaram Ganpat Pawar Vs. Govind Narayan Kondalkar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberWrit Petition No. 569 of 1985
Judge
Reported in1986(1)BomCR637
ActsMaharashtra Slum Area (Improvement, Clearance and Redevelopment) Act, 1971 - Sections 22(1); Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Sections 15A; Evidence Act, 1872 - Sections 101 and 102
AppellantRajaram Ganpat Pawar
RespondentGovind Narayan Kondalkar
Appellant AdvocateD.M. Vora, Adv.
Respondent AdvocateR.S. Mhamane, Adv. for Vasant Bhange, Adv.
DispositionPetition allowed
Excerpt:
- - the learned judge of the small cause court, who heard the obstructionist notice, held that the respondent obstructionist failed to prove that he was in possession of the suit premises as a licensee as on 1st february, 1973 or that the premises in question were declared as a slum area. it was for the respondent obstructionist to prove his contention, which obviously he failed to do. obvious inference, which the learned judges of the appellate bench should have drawn, is that the obstructionist failed to prove that the suit premises are declared as a slum area......that the room of which possession is sought in execution of the decree is not declared as a slum area.2. the petitioner landlord obtained a decree of eviction against the original tenant in respect of room no. 3, rajaram ganpat pawar chawl, altaf nagar, golibar road, shivaji chowk, ghatkopar, bombay. he took out execution by way of warrant of possession, but the same was obstructed by the respondent. the petitioner, therefore, took out the obstructionist notice for removing obstruction and for executing the warrant of possession. the respondent obstructionist resisted the notice mainly on two grounds, viz. (1) that he was in use and occupation of the suit premises as a licensee since before 1st february, 1973 and hence he is protected under section 15a of the bombay rent act and.....
Judgment:

M.S. Jamdar, J.

1. The remand order which is impugned in this petition deserves to be set aside because it is passed after wrongly throwing burden on the respondent, who had taken out an obstructionist notice against the petitioner in execution of the decree passed against the erstwhile tenant, to establish that the room of which possession is sought in execution of the decree is not declared as a slum area.

2. The petitioner landlord obtained a decree of eviction against the original tenant in respect of Room No. 3, Rajaram Ganpat Pawar Chawl, Altaf Nagar, Golibar Road, Shivaji Chowk, Ghatkopar, Bombay. He took out execution by way of warrant of possession, but the same was obstructed by the respondent. The petitioner, therefore, took out the obstructionist notice for removing obstruction and for executing the warrant of possession. The respondent obstructionist resisted the notice mainly on two grounds, viz. (1) that he was in use and occupation of the suit premises as a licensee since before 1st February, 1973 and hence he is protected under section 15A of the Bombay Rent Act and (2) that the suit premises are declared to be a slum area under the Maharashtra Slum Area (Improvement, Clearance and Re-development) Act, 1971 and hence the landlord would not be entitled to execute the decree. The learned Judge of the Small Cause Court, who heard the obstructionist notice, held that the respondent obstructionist failed to prove that he was in possession of the suit premises as a licensee as on 1st February, 1973 or that the premises in question were declared as a slum area. He found nothing on record to show that Card, Exhibit 5, declaring a temporary structure in Gopal Bhuvan in occupation of the obstructionist related to the room in question. Consequently the learned Judge made the obstructionist notice absolute and directed that the petitioner shall be put in possession of the suit premises by removing the obstruction caused by the respondent.

3. Being aggrieved by this order the respondent preferred an appeal to the Appellate Bench of two Judges of the Small Cause Court. At the hearing of the appeal the respondent produced a letter issued in his name stating that the structure bearing Census No. NX 745/10 situated in C.T.S. 2139 of village Ghatkopar is declared as a slum area vide Notification No. STN/DCK/2724 dated 14-12-77. This letter also did not improve the position in favour of the obstructionist. The only additional information contained in this letter was that the structure bearing Census No. 745/10 is situated in C.T.S. No. 2139. This information also did not establish that the structure, which is declared as a slum areas, is the same as the suit premises. The learned Judges of the Appellate Bench, therefore, found fault with the plaintiff petitioner in not mentioning in the plaint the city survey number of the property of which the possession was sought. They observed that the plaintiff has not disclosed city survey number of the suit premises in the plaint and he ought to have disclosed and particulars which were within his knowledge at least when a contention was raised by the respondent about the declaration of the slum area. They found that this deficiency in the evidence necessary for the respondent to prove that the suit premises are declared as a slum area occurred because of the fault of the plaintiff in not discharging the burden of supplying all the relevant details required to disprove the contention. They, therefore, set aside the order making the obstructionist notice absolute and remanded the matter to the trial Court for deciding the two issues (1) What is the survey number and C.T.S. number of the land on which the suit premises are situated, (2) whether the patch holders Card Exhibit 5 is in respect of the suit premises. It is this order of remand which is sought to be quashed by the petitioner-landlord.

4. It will be soon from the plaint filed by the petitioner in the eviction suit that complete description of the suit premises was given. The premises were described as Room No. 3 Rajaram Ganpat Pawar Chawl, Altaf Nagar, Golibar Road, Shivaji Chowk, Ghatkopar (East). It will be seen from the written statement filed by the tenant that there was no dispute about the identity of the suit premises. It was, therefore, not necessary for the purpose of the said suit to mention city survey number of the plot on which Rajaram Ganpat Pawar Chawl stands. The respondent, however, chose to obstruct the execution of the decree on he ground that the suit premises were declared as a slum area and hence the landlord would not be entitled to execute the decree in view of section 22(1)(b) of the Maharashtra Slum Area (Improvement, Clearance and Redevelopment) Act, 1971. It was, therefore, incumbent on him to prove that the premises to which the decree sought to be executed relates, are declared to be a slum area within the meaning of the aforesaid Act. It was for him to place on record the relevant materials required for establishing this contention. There was absolutely no burden on the petitioner-landlord to prove that the suit premises are not declared as a slum area and to supply the requisite information for that purpose. It was for the respondent obstructionist to prove his contention, which obviously he failed to do. The certificate, Exhibit 5, which he produced in the trial Court, showed that the temporary structure in his occupation and bearing No. NX 745/10 situated in Gopal Bhavan area was declared as the slum area vide Notification dated 14-12-77. As mentioned above the letter, which he produced before the Appellate Bench, supplied only additional information that the temporary structure bearing No. 745/10 is situated in C.T.S. No. 2139. Both these documents did not establish even indirectly that Room No. 3 in Rajaram Ganpat Pawar Chawl or Ganpat Pawar Chawl itself or the area in which this chawl stands is declared as a slum area. It is pertinent to note that the structure which is declared as a slum area is a temporary structure which the suit premises is a room in a permanent structure. Obvious inference, which the learned Judges of the Appellate Bench should have drawn, is that the obstructionist failed to prove that the suit premises are declared as a slum area. There was absolute no justification for requiring the plaintiff to supply information to disprove the contention of the obstructionist and to remand the matter. The approach adopted by the learned Appellate Judges is absolute faulty and shows ignorance of basic principles, governing burden of proof. The impugned remand order, therefore, deserves to be quashed.

5. In the result, the petition is allowed with costs. Rule made absolute. The impugned order to remand is quashed. The appeal filed by the respondent stands dismissed.


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