The court affirmed that unauthorized subletting and change of user from residential to commercial were established, with the burden of proof resting on the tenant's family to demonstrate the nature of the tenancy.

JUDGMENT :

(Sandeep V. Marne, J.)

1. These two Civil Revision Applications are filed by the Applicant challenging the judgment and decree dated 3 May 2016 passed by the Court of Small Causes at Mumbai decreeing R.A.E. & R. Suit No. 813/1300 of 2007 and directing the Defendants to deliver possession of the suit premises. The decree of the Trial Court has been confirmed by the Appellate Bench of the Small Causes Court by its judgment and decree dated 5 May 2022 which is also subject matter of challenge in the present Civil Revision Applications. It appears that the cross Appeals were filed against the decree of the Trial Court both by the landlord as well as the tenants and by common judgment and order dated 5 May 2022, the Appeal filed by the Tenant (Applicant) has been dismissed, whereas the appeal filed by the landlord is allowed to the extent of change of user while confirming the decree of eviction. This is how two separate Revision Applications are filed challenging common judgment and order of the Appellate Bench.

2. Facts of the case, as pleaded by the Plaintiff-landlord in R.A.E. & R Suit No. 813/1300 of 2007 are that, Room No.8 situated on 3rd floor of Building No.13 on Plot bearing C.T.S. No.1306, 2nd Agiari Lane, Zaveri Bazar, Mumbai-400 003 are the suit premises. According to the Plaintiff, the suit premises were let out to one, Shah Meghaji Tejraj exclusively for residential purpose in or about the year 1950. That the said tenant-Shah Meghaji Tejraj acquired new residential premises at 90/94, 3rd floor, Zaveri Bazar, Mumbai-400 002' in the year 1995 and shifted in the new premises. That thereafter his son, Chaganlal and his wife-Kamalabai were residing in the suit premises. That Chaganlal and Kamalabai also shifted to the new premises at 90/94, 3rd floor, Zaveri Bazar, Mumbai-400 002' and started residing with Shah Meghaji Tejraj. That the suit premises were locked since the year 2000. That the original tenant- Shah Meghaji Tejraj passed away in the year 2004. That his son-Chaganlal predeceased him in the year 2002. After the death of Shah Meghaji Tejraj and Chaganlal, Defendant No.1-Kamalabai continued to reside at the new premises at Zaveri Bazar and was not in need of the suit premises.

3. Plaintiff further averred that while the suit premises remained locked since the year 2000, the Plaintiff observed that in February 2007, that Defendant No.3-Rakesh Zaverchand Shah (son-in-law of Defendant No.1-Kamalabai) was seen in the suit premises. After making enquires, Defendant No.3 falsely claimed that he is the representative of Defendant No.1-Kamalabai and that Defendant Nos.1, 2 and 4 had transferred and assigned their tenancy rights in the suit premises to Defendant No.3. That Defendant No.3 opened up his own business in the suit premises, which were unauthorisedly sublet to him by the first Defendant. Plaintiff therefore alleged that Defendants changed the use of the suit premises from residential to commercial. Plaintiff further alleged that Defendant No.3, in collusion with Defendant Nos.1, 2 and 4, carried out permanent additions and alterations in the suit premises without the written consent of the Plaintiff-landlord. On the above broad allegations, Plaintiff instituted R.A.E.& R. Suit No. 813/1300 of 2007 against the Defendants seeking recovery of possession. The suit was originally filed against Defendant No.1-Kamalabai, Defendant No.2-Ramesh Tejraj Jain (Tejraj's son), Defendant No.3-Rakesh Zaverchand Shah (son-in-law of Defendant No.1) and Defendant No. 4-'Unknown legal heirs of deceased tenant'. It appears that during pendency of the suit, Manisha Rakesh Shah (Applicant) who is the daughter of first Defendant and wife of Rakesh Shah intervened and got herself impleaded in the suit.

4. Common Written Statements were filed by Defendant Nos.1 and 3. After her impleadment, Defendant No.5 also filed her Written Statement. Rival parties led evidence in support of their respective claims. After considering the plea