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CASE NO.: Appeal (civil)  3424-3425 of 2005

PETITIONER: Julieta Antonieta Tarcato

RESPONDENT: Suleiman Ismail

DATE OF JUDGMENT: 20/02/2007

BENCH: B.P. SINGH & H.S. BEDI

JUDGMENT: J U D G M E N T  

B.P.SINGH, J.

       In these appeals by special leave the appellant has impugned the  judgment and order of the High Court of Judicature at Bombay dated July  27, 2004 in Writ Petition No.4261 of 1991.  The High Court by its impugned  judgment and order allowed the writ petition filed by the tenant-respondent  herein and dismissed the application for eviction filed by the appellant to  evict the respondent from the suit premises which is a flat located at Bandra  in the city of Mumbai.  While doing so, the High Court set aside the  appellate order of a bench of the Court of Small Causes, Mumbai which had  held that the landlady \026 appellant herein had established her case of bonafide  personal need of the suit premises.  Having regard to the finding recorded by  the High Court it is not necessary to reproduce the facts of the case in detail  but to appreciate the findings of the High Court it is necessary to state the  facts as briefly as possible.

       The appellant herein undoubtedly, is the owner of the suit premises.   She was residing in the suit premises till December, 1971 when she suffered  serious burn injuries.  In the unfortunate circumstances, since there was no  male member residing with her, she moved to the premises owned by two of  her brothers namely, father Lawrence and Mr. Tito, which premises are  known as Ashoka Apartments.  Till then she was residing with her mother  and her brother and two of her nephews and one niece.  The brother being a  sailor, employed in the Merchant Navy, was very often on the high seas.   Her brother, father Lawrence advised her that they should stay with him in  the Ashoka Apartments.  At about that time, the respondent herein was in  need of accommodation since the premises occupied by him had collapsed  and there was urgent need of accommodation for him and his family  members which included two brothers, both of them lawyers.  Under these  circumstances, on 24th or 25th January, 1972 an agreement was executed  between the landlady and the respondent purporting to let out the premises  on leave and licence basis on monthly fee of Rs.550/-.  It is not disputed that  under the amended provisions of the Tenancy Act, such a licencee has  acquired the status of a tenant.

       Having stayed with her brother for several years, the appellant  decided not to burden her brother any more and to return to her own  premises along with the family members who were earlier residing with her.   Accordingly, a notice terminating the tenancy was issued in the year 1979  and a suit for eviction followed in the year 1980.  It is not necessary to refer  to other legal proceedings relating to fixation of standard rent and eviction  claimed on the ground of default in payment of rent.  The case of the  appellant was that she had to leave the suit premises in the circumstances  narrated above, and started living with her brother.  However, she needed the  suit premises for her own reasonable and bonafide need and also for  accommodating her two nephews and her niece who always resided with

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her.  Her nephews and niece also required sufficient accommodation to  pursue their studies.  The accommodation available in her brother’s flat was  not only insufficient but also inconvenient.  She did not want herself and her  nephews and niece to be a burden upon her brother, father Lawrence who  was a research scholar, after enjoying his hospitality for a long time during  her ailment.  She submitted that she did not own any other immovable  property in Mumbai nor did she have sufficient means to acquire or secure  any other suitable accommodation for herself.

       The respondent contested the application for eviction and denied that  the appellant required the suit premises reasonably and bonafide for her own  use and occupation along with her two nephews and her niece.  It was  asserted that they had been residing with the appellant in the Ashoka  Apartments with her brother, father Lawrence who owned a big self-  contained flat which had sufficient accommodation to accommodate all of  them.  There was denial of the fact that the appellant did not own any other  immovable property in Mumbai nor did she have sufficient means to acquire  or secure any other suitable accommodation for herself.  It was also asserted  that greater hardship would be caused to him if the decree for ejectment was  passed.

       The Trial Court framed several issues, the crucial issue being whether  the plaintiff failed to prove her bonafide reasonable need of suit premises for  her own use and accommodation along with her two nephews and one niece.

       The Trial Court found on the basis of material on record that the  appellant had been residing in the suit premises during the years 1966-68  and even thereafter.  Therefore, the plea urged on behalf of the respondent  that she used to give the suit premises to various persons on leave and  licence basis was rejected.  The facts found by the Trial Court also disclosed  that soon after the appellant shifted to the apartment of her brother, the  premises were given to the respondent on leave and licence basis.  The  defendant was also in dire need of accommodation since the premises  occupied by him had collapsed.  The Trial Court however, came to the  conclusion that the appellant had gone to reside in the Ashoka Apartments  with the intention not to come back in near future, and with that intention to  give the premises on leave and licence basis to earn income therefrom.  On  the question of bonafide personal need, the Trial Court came to the  conclusion that the appellant had claimed possession of the suit premises on  the ground that the suit premises were reasonably and bonafide required by  her and her nephews and niece who had grown up and required sufficient  accommodation which was not available in the Ashoka Apartments and that  she did not want herself and her nephews and niece to be a burden on her  brother Lawrence.  The Trial Court observed that the appellant had nowhere  stated that she required the suit premises for her nephews and niece who had  to pursue their studies and vocation.  The Trial Court noticed that the mother  of the appellant died during the pendency of the suit and her unmarried sister  also got married and was residing with her husband at Goa.  Her niece also  got married and was residing with her husband at Goa, while one of her  nephews Lino joined the Merchant Navy and the other Brian was studying  for his M.B.B.S. Degree.  The Trial Court considered the evidence in great  details and came to the conclusion that since some of the family members  residing with the appellant started residing elsewhere after marriage or on  getting employed, there was sufficient accommodation available in the  apartment of her brother Lawrence which was a spacious apartment  consisting of three bed rooms, a hall, kitchen etc.   

The Trial Court further held that the appellant as well as her brother  Lawrence had sufficient income to maintain themselves and, therefore, the  plea of the appellant that she did not want to burden her brother any more  did not appear convincing.  It, therefore, concluded that the accommodation  in Ashoka Apartments was sufficient for the appellant as well as others who  were residing with her.  Her requirement of additional premises therefore  could not be said to be reasonable and bonafide.

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On such findings the Trial Court dismissed the eviction petition.  The  appellant preferred an appeal before the Appellate Bench of the Court of  Small Causes at Mumbai.  On a consideration of the evidence on record the  Appellate Bench held that the appellant had made out a case of bonafide  personal need of the premises in question.  It found that the appellant had not  left her own apartment permanently without any intention of coming back.   The Trial Court was in error in holding that the appellant had left her  apartment once for all.  In any event, this question was immaterial to decide  the question of bonafide personal need.  It considered the appellant’s plea  that she had lived with her brother for quite some time and she did not want  to stay there any longer.  She therefore required her own premises for her  own occupation and her need could not be said to be unreasonable.  Since  she had her own flat on the ground floor which suited her in her old age, and  she did not wish to burden her brother any more, there was nothing  unreasonable in her wanting to reside in her own apartment rather than  continuing to reside in her brother’s apartment where she had to move under  compelling circumstances on account of serious burn injuries suffered by  her.  Moreover, before the accident in which she had suffered burn injuries,  the appellant was residing in her own flat.  The Appellate Bench took notice  of the fact brought on record that after filing of the suit the appellant was  detected to be suffering from heart ailment and, therefore, she would enjoy  staying in her own apartment rather than staying with her brother.  The  Appellate Bench further observed that even if the appellant’s sister and niece  got married and were residing at different places, and her mother had also  died, that did not lead to the conclusion that the bonafide personal need of  the appellant to reside in her own apartment did not survive.  It may be that  the premises were no longer required also for providing accommodation to  her sister, niece and mother, but her own need for the premises subsisted.   The Appellate Bench also recorded a finding that respondent would not  suffer greater hardship than the appellant if he was evicted from the  premises in question.                  On these findings the Appellate Bench allowed the appeal holding that  the appellant had established her bonafide personal need for the premises in  question.          The respondent preferred a writ petition before the High Court of  Judicature at Bombay which was ultimately allowed by the High Court by  its impugned judgment dated July 27, 2004.  After briefly noticing the facts  of the case the High Court accepted the finding of the Appellate Bench that  the appellant had not left the premises with the intention of staying with her  brother permanently.  The High Court also accepted the finding of fact  recorded by the First Appellate Court that the appellant had no share in the  flat in Ashoka Apartments and, therefore had no right to stay therein.   However, the High Court was impressed by the subsequent events which  were brought to its notice by a civil application filed by the respondent.  The  subsequent events which impressed the High Court were that the appellant’s  mother had died in the year 1976 and her sister-in-law had also died in the  year 1982.  Her brother was residing permanently in Goa to look after the  ancestral family property.  Of the three children of her brother, a son Lino  had died during the pendency of the Writ Petition while his daughter had got  married and was residing permanently at Goa.  Another son of her brother  namely, Brian had settled in U.S.A. as a medical practitioner.  The appellant  denied that Dr. Brian had migrated to U.S.A. permanently.  The learned  Judge held that apart from the appellant and Dr. Brian all the others who  were earlier residing with the appellant had either expired or had settled  down elsewhere and therefore the need of the other family members did not  survive.   The appellant’s brother Lawrence had also died.  The High Court  concluded that Lawrence being a bachelor, the appellant has also inherited a  share in his flat at Ashoka Apartments and thus became a co-owner having a  right to reside in the flat in Ashoka Apartments.  Her brother Tito no doubt  was also a co-owner of the premises since he owned the premises jointly  with her late brother Lawrence.  In view of the fact that she as a co-owner  had a right to reside in the premises, her need of her own apartment did not  survive.  The High Court, therefore, concluded that in the changed

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circumstances and subsequent events which happened during the pendency  of the Writ Petition before the High Court, the need of the appellant did not  survive and, therefore the decree passed by the Appellate Court deserved to  be set aside.  Accordingly, the Writ Petition was allowed and the eviction  petition was rejected.

       Having noticed the evidence on record and the findings recorded by  the Courts below we have come to the conclusion that this appeal must be  allowed.  The finding of bonafide personal need recorded by the Appellate  Court is a finding of fact based on the evidence on record.  We have  considered the evidence on record and we find that the finding recorded by  the Appellate Court did not deserve to be set aside.  In fact, the High Court  also was of the same view, but in the changed circumstances having regard  to the events that took place during the pendency of the Writ Petition, the  High Court interfered with the order of the Appellate Court.  We hold that  the High Court was not justified in doing so.  It cannot be lost sight of that  the premises which the appellant required for her personal bonafide need  belonged to her.  She was residing in those premises with other family  members for many years.  Unfortunately, she suffered an accident and in the  absence of any other grown up male member in the family she was  persuaded by her brother Lawrence to come and reside in his apartment  which was one of the flats in the Ashoka Apartment and which was owned  by him and his brother Tito.  After residing there for several years, the  appellant felt that she should not burden her brother any more and, therefore  wanted to shift to her own accommodation which was then in occupation of  the respondent.  The Trial Court made much of the fact that the appellant  had also pleaded her bonafide need of providing accommodation to other  members of the family.  While doing so the Trial Court completely lost sight  of the fact that apart from the requirement of other members of the family,  the appellant also required the premises for her own accommodation.  Thus,  even if the other members of the family no longer required the premises, the  requirement of the appellant survived.   She had every right to occupy her  own premises and she could not be told that she should share  accommodation with her brother in another apartment.

The High Court was in error in holding that since the appellant  became a co-owner of the premises upon the death of her brother Lawrence,  she had a right to reside in those premises and, therefore, her need for the  premises owned by her exclusively did not subsist.  The appellant has  brought to our notice the fact that in September 2003, the appellant and her  sister gave their consent for the transfer of the flat in Ashoka Apartments in  the name of Tito their brother, who was a co-owner of the flat along with her  late brother Lawrence.  Even if we ignore this fact, one cannot compel the  owner of the premises which exclusively belongs to her to share  accommodation with a co-owner of hers in another premises.  The appellant  being the owner of the suit premises, her need being bonafide and  reasonable, it would be unfair to compel her to share the accommodation in  another premises with its co-owner.  We must therefore hold that the High  Court was in error in coming to the conclusion that the bonafide personal  need of the appellant did not subsist.

       We, therefore, set aside the impugned judgment and order of the High  Court and restore that of the Appellate Bench of the Court of Small Causes,  Mumbai dated June 14, 1991 allowing the Eviction Petition and directing the  respondent to deliver/ vacant possession of the suit premises to the appellant.   These appeals are accordingly allowed with costs.