1. This is the original tenant's petition that questions the reversing judgment rendered by the appeal Court by which a decree has been made for possession of the tenanted premises, holding that it has been established that the tenant has acquired suitable accommodation and, therefore, the landlord was entitled to possession. The trial Court rejected this claim holding that it was not established that the defendant had acquired a suitable accommodation and was not using the tenanted premises for his residence. That finding has been reversed by the judgment under challenge.
2. A bare perusal of the evidence and the controversy between the parties go to show that the impugned judgment is unsustainable and there is a clear error in assuming that the tenant had ceased to use the premises for his residence.
3. The facts which cannot be seriously disputed and even as are deposed to by the landlord are that the defendant-tenant came into the suit premises in April 1955. He has five sons and two daughters. Two of the sons of the defendant reside at Kalyan. The third son is in the service in Court and the fourth was in the service of the State Transport. He resided in the suit premises and thereafter was presently transferred to Buldhana. The fifth son continues to reside in the suit premises. The tenant, who is an old man of about 78 or 79 years of age cannot see properly nor cna he move without the help of somebody and he has gone to stay in Sahakarnagar with the family of one of his sons. The landlord is not aware nor has any document to show whether the property in Sahakarnagar is not that of the son of the tenant. He admits in specific terms that he has no documentary evidence to show that the tenant was in possession of any alternative accommodation.
4. It is indeed clear from the evidence of the landlord himself that the tenant has five sons and even on the date when the landlord was deposing, one of the sons of the defendant was very much in occupation of the tenanted premises.
5. It is only because of old age and disability that the father had gone and resided in Sahakarnagar.
6. These admitted facts spoken to by the landlord himself do indicate that neither it is established nor it is possible to infer that the tenant had acquired a suitable premises for his residence and had, in fact, ceased to reside at the tenanted premises. As the facts stand, the tenant was occupying the tenanted premises along with his family including his sons. One of his sons, admittedly, continued to occupy the tenanted premises. It is thus obvious that the occupation of the tenant's family was very much admitted and it has not been shown that the property in Sahakarnagar was that of the tenant. By reason of the old age if a person were to go and stay with one of the sons his other son continuing in the tenanted premises, it would not be permissible to infer that he had ceased to reside in the tenanted premises. Something more will be necessary in such matters to be established, particularly when admitted member of the family of the tenant was occupying the premises which was also the position since before when the premises were taken. In the very nature of things, such occupation would be that of the tenant. When a plea otherwise is raised, it will have to be shown that such occupant has ceased to be the member of the family of the tenant and his occupation would, therefore, be treated as that of the_ stranger. It cannot but be emphasised that a tenancy by the father for the enjoyment of the family, which includes sons and other members of the family, is available for occupation by such members even after the demise of the father who is the original tenant. Such entitlement is expressly recognised by the Bombay Rent Act. When, therefore, a tenant has sons who are residing in the tenanted premises along with the father, their occupation of the tenanted premises ordinarily will be on behalf of the father and not otherwise. Unless there were facts which indicated that the family consisting of sons had disrupted and separate families have come into existence and such separate families for the purpose of the tenanted premises could be treated as separate and, therefore, the stranger, it could not be reasonably inferred that the original tenant has ceased to use the tenanted premises, although one of the members of the family continues to be in the premises. It is a question of fact and circumstances and its appreciation in each case. In the present case, the facts do not admit any doubt, in that in the tenanted premises the father and sons were residing, the father having taken the tenancy and even on the date of the suit, this position had not undergone any change. The landlord did admit that the father had gone because of his health and old age to reside with one of his sons, but the other son was very much in the tenanted premises. There is no evidence to suggest that the father had abandoned the premises or that the remaining sons had separated for all purposes from the father. Such residence with another son by the father will at the most be a temporary and casual one and would not be a firm proof of abandoning the tenanted premises by the father.
7. This being the position, it has to be concluded that the appeal Court was not justified to infer otherwise and to hold that the tenant had given up user of the premises and was, therefore, liable to be evicted. The judgment and the consequent decree made by the appeal Court thus is erroneous. The same is set aside and instead the judgment and decree of the trial Court is restored. Rule absolute with no order as to costs.