2. In the present petition, the petitioners who are alleging to be tenant of the property owned by respondent-Trust challenged the order passed by the District Judge, Gadchiroli, in Regular Civil Appeal No.30 of 2018 dated 29.06.2020, whereby the learned District Judge, by the impugned judgment and order, directed the present petitioners to hand over the possession of the suit premises to the respondent and also permitted for recovery of arrears of rent of the suit premises.
3. In the present petition, the factual aspects which can be ascertained from the record are summarized as under:
The respondent is a registered Trust under the provisions of the Bombay Public Trusts Act. The Trust has been established with an aim and object to promote art and drama in the city. The Trust is having its own building in the city of Gadchiroli. On the back side of the building, there is a hall for drama and other activities. On the front side, there is a two-storied building. On the first floor, there is an office of the District Central Co-operative Bank Ltd., Gadchiroli given on rent basis. On the ground floor, there are five rooms, out of which on eastern side two rooms were rented to the Nagari Sahakari Bank. The second room from the western side given on rent to the petitioner No.1, and another room was given to Shri Vyankatesh Kalyanamwar and third room was given to Baburao Sayratwar on rent. As per the respondent, the second room from western side was given to petitioner No.1 in the year 1991 on a monthly rent of Rs.700/-. The said block is having an area of 120 sq. ft. The defendant No.1 was running a general store in the said block.
4. The respondent on 22.08.2012 has issued a notice to petitioner No.1 stating that the Trust is willing to expand their cultural and other activities and for that purpose, they are willing to use the block which were rented to petitioner No.1 and hence required an office for visitors, and therefore, the petitioner No.1 shall vacate the premises within a period of 8 days from the receipt of the notice.
5. It is also seen from the record that petitioner No.2 is actually in possession of the suit block without any permission from the respondent Trust. Therefore, on 07.11.2012, respondent Trust has issued registered post notice to the petitioner No.2 and specifically stated that the suit block was rented to petitioner No.1, namely Barkat Ali Batada. The petitioner No.2 and respondent has no relation of any kind. However, when they issued notice to Barkat Ali Batada, they noticed that petitioner No.2, i.e. Shaukat Ali Batada, is running the shop without any agreement, which is nothing but subletting of premises without permission of the respondent Trust. Hence, he was intimated to vacate the suit block immediately after the receipt of notice.
6. The present petitioners did not respond to the said notice issued by the respondent on 22.08.2012 and 07.11.2012.
7. In this background, the respondent Trust on 05.03.2013 filed a civil suit for possession under the provisions of Maharashtra Rent Control Act, 1999 against both the petitioners. The respondent in his suit has specifically pointed out the bonafide need, i.e. the blocks are needed for office on front side of the building, and secondly, raised a ground of subletting of suit property without any permission or agreement with the respondent Trust. So also, the respondent stated that the petitioner had not paid the agreed rent since November 2011, and therefore, there is a default in payment of rent. As such, on these grounds, the suit was filed before the trial Court.
8. In the said suit, the petitioner No.1 has filed his written statement before the trial Court. The petitioner has denied the bonafide need which was alleged by the respondent in the suit. It is further denied that they are in arrears of rent as alleged by the respondent. So also, it is stated that petitioner No.2 is the real brother of petitioner No.1, and therefore, it is not a case of subletting, rather both brothers are running the shop jointly, and hence, all the grounds which are raised by the respondent are not sufficient to decree the suit.
9. In the light of these submissions, the parties are put to lead their evidence before the trial Court. On behalf of respondent Trust, the Secretary of the Society, namely Rajendra Yadavrao Sontakke, has led his evidence, and in support of submission, one another witness was examined, namely Bhojraj Shridhar Thakare.
10. It is pertinent to note that before the trial Court, the petitioner No.1, who was the original tenant of the suit premises, did not enter into the witness box. The petitioner No.2 has led the evidence before the trial Court and he was cross-examined by the respondent Trust.
11. In light of this factual as well as oral evidence, the learned trial Court dismissed the suit by the judgment dated 19.03.2018. Learned trial Court recorded the finding that the Secretary of the Trust who was examined was not even aware about the deposit of Rs.20,000/- while a block was rented to the petitioner No.1. The petitioner No.2, being running the shop/rented block since last more than 14 to 15 years, the ground raised of sub-tenancy is not sustainable in such circumstances. It is further recorded that since last 10 to 15 years, there was no activity of drama at the instance of respondent Trust in the hall, therefore, bonafide need to have an office to expand their cultural activity cannot be accepted. In respect of arrears of rent, it is recorded that in the legal notice, there were no averments of recovery of any amount. On the basis of this finding, dismissed the suit filed by the respondent Trust.
12. The respondent Trust, against the judgment and order dated 19.03.2018, preferred a statutory appeal before the District Judge, Gadchiroli, on various grounds raised in the appeal. It was the specific submission of respondent Trust that learned Trial Court did not appreciate the evidence available on record. It is stated that suit was not filed only under Section 16-1(g) of the Act, but raised the ground of sub-tenancy and arrears of rent. It was established on record that petitioner No.1 is not running the rented shop but same is run by petitioner No.2. Therefore, it was for petitioners to discharge said burden by placing relevant documents on record. Petitioner No.1 however did not enter into witness box, hence tenant failed to prove his case before trial Court.
13. The learned District Judge after perusal of record has recorded the finding that evidence on behalf of respondent Trust was remained unshaken in the matter. It is further recorded that petitioner No.1 was an original tenant and he did not enter into the witness box, therefore, he has not proved his case before the trial Court. It is further recorded that the respondent Trust has established the fact that petitioner No.2 is having the possession and he is running the shop. As such, once this fact has been established, the onus has been shifted on the tenant to establish that there was no sub-tenancy as alleged in the matter. However, the present petitioners failed to discharge that burden.
14. The learned District Court in the impugned judgment has recorded the finding that in respect of payment of regular rent, the present petitioner No.1 ought to have been entered into the witness box and must have produced the receipt of the payment in view of Section 15(1) of the Maharashtra Rent Control Act.
15. It is also recorded that the learned trial Court, by relying on stray admission of the Secretary of the Trust, wrongly drawn conclusion in the matter. He failed to appreciate evidence led by respondent Trust in the matter. In respect of bonafide need, it is held that landlord is the best judge of his requirement, and in the legal notice specifically stated to expand their activities and to have office of Trust, they are in need of three rooms for establishing their office in the premises. Hence bonafide need cannot be said to be not justified in the matter.
16. In addition to above, the learned District Judge has also recorded the finding that both the petitioners are having an alternative property in the city of Gadchiroli in a market area, and therefore, no hardship will cause to them in the matter. Hence, by recording all these findings, allowed the appeal filed by the respondent Trust.
17. In this background, the petitioners approached before this Court. The first contention which is raised by the petitioners in the present matter is that the suit has been filed without having any proper authorization to the Secretary of the Trust. According to them, the respondent being a Trust, all trustees must have passed a resolution, and said resolution ought to have been placed on record. However, the resolution which was placed on record dated 16.12.2012 nowhere disclosed that said resolution has been passed under the signature of all the trustees of the Trust.
18. In this regard, the respondent Trust has specifically pointed out from the deposition of Secretary, namely Rajendra Sontakke, that they have filed the true copy of the resolution, and at the time of proving the same, the original copy of resolution was produced before the Court. The same was verified by the Court, and after that, the resolution was exhibited as Exhibit 40 by the Trial Court. So also, this issue was not raised by the petitioners before the Trial Court nor before Lower Appellate Court.
19. In view of this factual position, it is clear that the said resolution was duly verified by the learned Trial Court, and then it was exhibited. This Court, to ascertain this fact, has asked the respondent to place on record the copy of original resolution on record. Accordingly, the respondent has produced the Xerox copy of the resolution dated 16.12.2012. The perusal of the said document established the fact that the copy of resolution which is typed copy is the correct and true copy of the resolution dated 16.04.2024.
20. The petitioners in this regard have relied the various judgment of the Hon’ble Supreme Court of India as well as this Court. The submission of the petitioner is that a Trust is not a legal entity or juristic person. A Trust is also not like a Corporation which has a legal existence of its own, and therefore can appoint an agent. A Trust operates through its trustees who are legal entities. Therefore, all suits and proceedings are required to be filed subject to the provisions of the instructions of Trust to take such other steps. This legal position is not disputed in the matter. In the present matter, as stated above, the Trust has authorized the Secretary to file the proceeding before the Trial Court, and therefore, the judgments which petitioners have relied upon, are not applicable in the matter.
i) Sankar Padam Thapa Vs. Vijaykumar Dineshchandra Agrawal reported in 2025 SCC OnLine SC 2194,
ii) Namdeo s/o Pandurang Khedkar Vs. Shahi Gupta Masjid, Chandrapur reported in 2014 (4) Mh.L.J. 209,
iii) Sitaram Narayan Shinde and others Vs. Ibrahim Ismail Rais and others reported in 2005 (1) Mh.L.J. 35,
iv) Shri Cutchi Visa Oswal Derawasi Jain Pathshala, through its Chairman Virchand Koonverji Korani Vs. Shri Cutchi Visha Oswal Derawasi Jain Mahajan, through its Chairman, Popatlal Bharmal Sah and another reported in 2005 (1) Bom.C.R. 105,
21. The further submission of the petitioners before this Court that bonafide need stated by the respondent is illusory in nature and not bonafide nor reasonable. According to them, when the activities of the Trust are stopped since last 15 years, there is no reason for them to state that to expand their activities, the shops are necessary for them. In this regard, it would be relevant to record that Landlord is the best judge of his requirement and this Court is not required to re-appreciate evidence on the said issue. So also in the present case, it would be necessary to record the fact that the defendant No.1 was the real tenant and he did not enter into the witness box to state that the respondent is not in need of the tenanted premises. Therefore, in absence of any contrary evidence on record, merely on the evidence of petitioner No.2 who was not a legal tenant, the submission of the petitioners cannot be accepted in the matter. This Court is recording this finding because petitioner No.2 is not a valid sub-tenant nor same is established on record.
22. It would be relevant to consider the judgment of the Hon’ble Supreme Court of India in the case of Joginder Singh Sodhi vs. Amar Kaur, reported in (2005) 1 SCC 31, wherein the Hon’ble Supreme Court has categorically held that though the landlord has to prove his case by leading evidence that third party was found to be in exclusive possession of the rented property, the landlord cannot prove the sub-tenancy. Once he has observed that the another person is in possession of the suit property, then the onus would shift on the tenant to explain his possession. If he is unable to discharge that onus, it is permissible for the Court to raise an interference that such possession was for monetary consideration. The Hon’ble Supreme Court in paragraph Nos.17 and 19 observed as under:
“17. We are unable to appreciate the contention. As observed by this Court in Bharat Sales Ltd. v. Life Insurance Corporation of India. [1998] 3 SCC 1, sub-tenancy or sub-letting comes into existence when the tenant gives up possession of the tenanted accommodation, wholly or in part, and puts another person in exclusive possession thereof. This arrangement comes about obviously under a mutual agreement or understanding between the tenant and the person to whom the possession is so delivered. In this process, the landlord is kept out of the scene. Rather, the scene is enacted behind the back of the landlord, concealing the overt acts and transferring possession clandestinely to a person who is an utter stranger to the landlord, in the sense that the landlord had not let out the premises to that person nor had he allowed or consented to his entering into possession of that person, instead of the tenant, which ultimately reveals to the landlord that tenant to whom the property was let out has put some other person into possession of that property. In such a situation, it would be difficult for the landlord to prove, by direct evidence, the contract or agreement or understanding between the tenant and the subtenant. It would also be difficult for the landlord to prove, by direct evidence, that the person to whom the property had been sub-let had paid monetary consideration to the tenant. Payment of rent, undoubtedly, is an essential element of lease or sub-lease. It may be paid in cash or in kind or may have been paid or promised to be paid. It may have been paid in lump sum in advance covering the period for which the premises is let out or sub-let or it may have been paid or promised to be paid periodically. Since payment of rent or monetary consideration may have been made secretly, the law does not require such payment to be proved by affirmative evidence and the court is permitted to draw its own inference upon the facts of the case proved at the trial, including the delivery of exclusive possession to infer that the premises were sub-let.
19. Again in Kala and Anr. v. Madho Parshad Vaidya, [1998] 6 SCC 573, this Court reiterated the same principle. It was observed that the burden of proof of sub-letting is on the landlord but once he establishes parting of possession by the tenant to third party, the onus would shift on the tenant to explain his possession. If he is unable to discharge that onus, it is permissible for the court to raise an inference that such possession was for monetary consideration.”
23. In view of the law laid down by the Hon’ble Supreme Court of India, it can be concluded that the possession of petitioner No.2 over the suit property was not legal and petitioner No.1 failed to discharge his burden in the matter. Hence, the law laid down by the Hon’ble Supreme Court of India is squarely applicable in the matter.
24. Petitioners then stated that respondent has suppressed the fact from the trial Court as well as Lower appellate Court that they have also filed a suit for eviction against one Shri Vyankatesh Kalyanamwar, bearing Regular Civil Suit No.18 of 2013. The said suit was decreed by the learned trial Court by its judgment dated 14.11.2016. Hence, according to the petitioner, the need of the respondent Trust has been accomplished in view of the decree passed in their favour in the suit. This contention of the petitioners cannot be accepted because while issuing the notice to the petitioner No.1 on 22.08.2012, the respondent has specifically stated that they are in need of three rooms, one from the petitioner No.1 and other two shops which are rented to another person. Therefore, this submission of the petitioner cannot be accepted.
25. It would be relevant to note that in Regular Civil Suit No.18 of 2013 filed by respondent against Shri Vyankatesh Kalyanamwar, the trial Court has positively considered the bonafide need of the respondent Trust. In that proceeding also, the original defendant No.1 did not appear before the trial Court. However, in that case, the bonafide need pointed out by the respondent against the tenant therein was upheld by Trial Court. However, in the case of petitioners held that respondent failed to prove bonafide need, though the landlord is the same, and the reason for bonafide requirement is also same. Therefore, this order does not favour the petitioners, rather it favour to the respondent in the matter.
26. In the present case, the learned Appellate Court has specifically recorded the finding that petitioner No.2 being a real brother of petitioner No.1, then he should have recorded the correct and proper evidence on record. However, in the cross-examination, he has stated that he is not aware where the other shop of the petitioner No.1 is available. Particularly when the respondent has specifically brought through the evidence of PW 2, namely Bhojraj Thakare, who has categorically stated that petitioner No.1 is having other kirana shop in the main market of Gadchiroli City and in front of a rented premises, i.e. Akhade Complex, the blocks are available for rent. But when the petitioner No.2 was asked whether the shop of the defendant No.1 is in front of Battuwar petrol pump or not, he has given a vague answer to avoid to bring on record the real fact. Therefore, considering the fact that the petitioner No.2 did not lead correct evidence, the learned District Judge has rightly recorded the finding in the matter.
27. It is further pertinent to note that, if the petitioner Nos.1 and 2 are the real brothers, and admittedly the rent agreement was with petitioner No.1, and he was actually running the business, it was expected that firstly he should enter into the witness box and establish this fact. But he did not enter into the witness box. The petitioner No.2, who stated that he being a brother running the shop, then he should at least brought on record the certain documents, such as shop of license in the name of petitioner No.1, copy of income tax return, GST, etc., to show that the business is run in the name of petitioner No.1, and he is only helping him in the business. But nothing was placed on record by the petitioner No.2. Therefore, the learned District Judge has rightly concluded that in absence of such evidence, it is clear that the premises was subletted to the petitioner No.2 by petitioner No.1 without intimation to the respondent Trust. So also the petitioners failed to discharge their burden as per the law laid down by the Hon’ble Supreme Court of India in the case of Joginder Singh Sodhi (Supra).
28. In this background, the respondent Trust has rightly relied upon the judgment of this Court in the case of Ashfaque Shaikh Abdul Rehman vs. Ramkrishna Resorts Private Limited, reported in 2024 DGLS (Bom.) 2073. This Court has held that it is for the landlord to decide how and in what manner he should live, and he is the best judge of his requirement. In deciding the question of bonafide requirement, it is unnecessary to make an endeavour as to how else landlord could have adjusted himself. In respect of shifting of burden, it was observed in paragraph No.16 that when the landlord has taken a specific ground of sub-tenancy, the tenant has to establish that there was no sub-tenancy. In this regard, the specific findings are recorded in paragraph Nos. 16.5, 16.6 as under:
“16.5 The judgment of the Supreme Court in the case of Joginder Singh Sodhi (supra) squarely applies to the present proceeding. In the said judgment, the Supreme Court held that burden of proof of sub-letting is on the landlord but once he establishes parting of possession by the tenant to a third party, onus would shift on the tenant. Paragraph nos.19 and 20 read as follows:-
"19. Again in Kala v. Madho Parshad Vaidya, [1998] 6 SCC 573, this Court reiterated the same principle. It was observed that the burden of proof of sub-letting is on the landlord but once he establishes parting of possession by the tenant to third party, the onus would shift on the tenant to explain his possession. If he is unable to discharge that onus, it is permissible for the court to raise an inference that such possession was for monetary consideration.
20. We are in agreement with the observations in the above cases. In our considered opinion, proof of monetary consideration by the sub-tenant to the tenant is not a sine qua non to establish sub-letting.
16.6 The judgment of Bombay High Court in Harakchand Hirji Shah (supra) also squarely applies to the present proceeding. This Court held that landlord is required to prove that the tenant had parted with the possession of the suit premises to a third party. The burden would then shift to the tenant to explain his possession. If tenant fails to discharge that onus, the Court can presume that such possession was for monetary consideration. The findings in the judgment of the Supreme Court in Celino Coelho Pareira (supra), according to me, applies to the present proceeding. In the said judgment, the Supreme Court held that initial burden of proving sub-letting is on the landlord but once he is able to establish that a third party is in exclusive possession of the premises, the onus will shift to the tenant.”
29. In the present case, considering the findings and observation recorded by the learned District Judge, it is clear that learned District Judge has rightly appreciated the entire controversy involved in the matter. He has discussed the evidence which was available on record as well as considered the correct legal position and thereby by recording the cogent reasons has held that the respondent Trust are having a bonafide requirement of the premises and petitioner No.2 being a sub-tenant, and the sub-tenancy has been created without consent of the respondent landlord, the same is illegal. So also, it was rightly recorded that the petitioners are in arrears of rent by considering Section 15(1) of the Maharashtra Rent Control Act and also properly dealt with the hardship which likely cause to the respondent rather than petitioners in the matter.
30. In the circumstances, considering the overall evidence available on record and the finding recorded by the learned District Court, I do not find any merit in the present petition and hence, present petition stands dismissed with no order as to costs.
