The Manglorian Garden Homes Co-operative Housing Society Limited v. Jan Mohammed S. Sama & Ors.

RIVAL SUBMISSIONS

14. Senior counsel Mr. Dhakephalkar submitted that neither petitioner nor original landlord Dr. Rebello can be held privy to understanding between the original tenant Mr. Contractor and his inductees. He submitted that the defence of the Defendant Nos. 4A is that of oral leave & license and other defendant nos. 4 & 5 have not even taken that defence. He submitted that an agreement of Leave and license can not be held subsisting on 01/02/1973 in absence of any evidence. No subsisting leave and license agreement, much less written agreement is produced on record and therefore there is no protection available to any of the Defendants. He relied on following judgments in support of his case -

(i) D.H. Maniar and Ors. V. Waman Laxman Kudav [(1976) akn 7 4 SCC 118]

(ii) Ludhichem Agencies and Ors. V. Ahmed R.V. Peer

(iii) Varisalli Mohd. Ilias Vs. Abdul Sattar Gulam Hussain

15. Senior counsel Mr. Dani led the arguments by submitting on behalf of the original Defendant No. 4A. He submitted that the notice issued on behalf of the earlier owner, Mr. Rebello dated 06/10/1964 (which is referred in the plaint) itself indicates that case of unlawful sub-letting has been stated on behalf of erstwhile owner. He submitted that therefore, from October 1964, the sub-letting is established, which is prior to the cut-off date of 01/02/1973. He further submitted that in the plaint, allegation of profiteering is made against Defendant Nos. 1 and 2, which pre-supposes payment of compensation by the Respondent Nos. 4 to 6, who are alleged to be unlawfully occupying part of the suit premises. He submitted that in fact, before the Appeal Court, the Plaintiff had accepted that the Defendant Nos 4, 4A and 5 have been in possession of their respective portions since prior to 01/02/1973 and the dispute is only in respect of payment of license fee/compensation. He therefore submitted that considering the statements in the notice issued by erstwhile owner as well as case of profiteering made out in the plaint, both the possession prior to 01/02/1973 as well as payment of compensation are established and therefore the concerned Defendants have become protected/deemed tenant u/s. 15A of the Bombay Rent Act, under amendment of 1973.

16. Inviting the Court's attention to cross-examination of akn 8 Defendant No. 2-Zarinabai, it is submitted that she has admitted that she will not be able to contradict the statement that her father gave respective premises to Defendant Nos. 4 and 4A in 1963 on monthly compensation of Rs.75/- on leave and license basis and this admission is sufficient to establish transfer of monetary compensation between the original tenant-Mr. Contractor and Defendant Nos. 4 and 4A. He submitted that there are no suggestions given in the crossexamination to Zarinabai that Defendant Nos. 4 and 4A are not paying any compensation at all. He submitted that no questions are put in cross-examination about the letter dated 01/04/1971 issued by Defendant No. 2-Zarinabai to Defendant No. 4-Jan Mohamed Sama, under which she has confirmed that she allowed Defendant No. 4 to use and occupy part of ground floor on leave and license basis for monthly compensation of Rs.125/-

17. He further submitted that the Defendant No. 2 - Zarinabai in her written statement has contended that Defendant No. 4 and his brother were allowed to use and occupy part of the Suit premises on leave and license basis, and there is no case of induction from 01/04/1971, which also indicates occupation since prior thereto.

18. He relied on receipts dated 05/11/1974, 08/12/1974 and 10/01/1975 in support of his case for payment of compensation towards occupation. He submitted that no suggestions are given about case of subsisting license. Relying on Section 52 of Indian Easement Act, he submitted that license need not be in writing and even gratuitous licensee is protected. He relied on following judgments in support of his case. akn 9

(i) Chandavarkar Sita Ratna Rao vs. Ashalata S. Guram

(ii) Smt. Rajbir Kaur And Another vs. M/s. S. Chokesiri & Co.

(iii) Bharat Sales Ltd. vs. Life Insurance Corporation of India

(iv) Bhagwati Spinning & Weaving Works, Ahmedabad vs.

19. Learned senior counsel Mr. Purohit appearing for some of the legal heirs of original Defendant No. 4 relied upon the judgment of N. N. Dogra through legal heir Ajay N. Dogra Vs. Mira J. Pahlajani through legal representative and Others [(2024) SCC OnLine Bom 2714], in support of his case that even gratuitous licensee is covered under the definition of ‘licensee’ within the meaning of Section 52 of Easement Act.

20. Learned counsel Mr. Kulkarni, appearing for remaining legal heir of Defendant No. 4 submitted that the acid test to be applied in case of protection u/s 15A of the Bombay Rent Act is that of subsisting licensee. He submitted that u/s. 14 of the Bombay Rent Act the protection is extended to both the sub-tenant or licensee, if it existed prior to 01/02/1973. He submitted that there is no perversity in the impugned order and as such interference in the writ jurisdiction is not required. He submitted that there is no crossexamination of the witness about the 1971 document. He submitted that the Trial Court has erred in going into the aspect of whether Defendant Nos. 1 & 2 were authorized to sub-let part of the premises. He relied upon following case law in support of his submissions akn 10

(i) Lakhichand Punamchand since deceased by his heirs

(ii) Dattatraya Pyurshottam Bhave since deceased through his L. R. Pramila Dattatraya Bhave V. Jayant Sitaram Joshi and others [2003(3) Mh.L.J. 161]

21. Mr. Mane appearing for legal heirs of Defendant No. 5 adopted the arguments of Mr. Kulkarni and Mr. Dani.

22. Mr. Dhakephalkar submitted in rejoinder that, section 13(1)(e) of the Bombay rent Act covers both the cases, of illegal sub-letting and of licensees whose license is not subsisting. That by very nature of unauthorized sub-letting, the landlord cannot be privy to the transactions between tenant and illegal sub-tenant or licensee without subsisting licence. He submitted that the landlord has to show that somebody else other than tenant is in exclusive possession and once that is shown, the burden shifts upon the tenant and illegal occupier. He submitted that section 14 will not apply in the present case, and the said argument is nothing but an attempt to mislead the Court. He further submitted that the evidence of Defendant No. 2 - Zarinabai is absolutely clear that after the death of her father (Mr. Contractor), she did not receive any money from Defendant Nos. 4 to

6. He submitted that the burden of proving subsisting license is perversely considered by the Appeal Court. He submitted that a supporting statement extracted during cross-examination of Defendant No. 2 – Zarinabai by a co-defendant is a weak piece of evidence, and it is not a landlord’s admission. akn 11 REASONS AND CONCLUSIONS

23. I have considered the rival submissions and perused the records.

24. The Suit is of the year 1974 and therefore relevant sections as they stood on the date of the suit (post 1973 amendment and prior to 1987 amendment) will have to be considered, which are as under: "13 (1) (e) that the tenant has, since the coming into operation of this Act, unlawfully sub-let, or after the date of commencement of the Bombay Rents, Hotel and Lodging House Rates Control (Amendment) Act, 1973, unlawfully given on licence, the whole or part of the premises or assigned or transferred in any other manner his interest therein: or xxx

14. (1) When the interest of a tenant of any premises is determined for any reason, any sub-tenant to whom the premises or any part thereof have been lawfully sub-let before the commencement of the Bombay Rents, Hotel and Lodging, House Rates Control (Amendment) Ordinance, 1959 shall, subject to the provisions of this Act, be deemed to become the tenant of the landlord on the same terms and conditions as he would have held from the tenant if the tenancy had continued. (2) Where the interest of a licensor, who is a tenant of any premises is determined for any reason, the licensee, who by section 15A is deemed to be, a tenant, shall, subject to the provisions of this Act, be deemed to become the tenant of the landlord, on the terms and conditions of the agreement consistent with the provisions of this Act. xxx 15A. (1) Notwithstanding anything contained elsewhere in this Act or anything contrary in any other law for the time being in force, or in any contract, where any person is on the 1st day of February 1973 in occupation of any premises, or any part thereof which is not less than a room, as a licensee he shall on that date be deemed to have become, for the purpose of this Act, the tenant of the landlord, in respect of the premises or part thereof, in his occupation (2) The provisions of sub-section (1) shall not affect in any manner akn 12 the operation of the sub-section (1) of Section 15 after the date aforesaid.” [emphasis supplied]

25. At the outset it is necessary to consider how the Appeal Court has passed the impugned order, reversing the decree of eviction granted by the Trial Court.

25.1) Admittedly, the aspect of possession of Defendant Nos. 4, 4A and 5 prior to 01/02/1973 has been accepted before the Appeal Court and the cross objections filed by Petitioner-landlord about the ground of requirement has been not pressed. As such, the consideration before Appeal Court was only limited to the ground of illegal sub-letting under section 13(1)(e) of the Bombay Rent Act.

25.2) The Appeal Court has proceeded on the presumption that the long-standing possession pre-supposes payment of compensation by the sub-tenant/licensee to the original tenant. The Appeal Court has considered the oral evidence of PW-1 and has held that the Petitioner/landlord has no knowledge as to what happened in the suit premises prior to their purchase of the property in 1966 and their knowledge is only from the date of purchase.

25.3) It is held by the Appeal Court that Petitioner’s knowledge is too meager and as such, the Appeal Court was not inclined to believe the version of unlawful induction of Defendant No. 4, 4A and

5. The Appeal Court has therefore held that whatever is the case tried to be made out by Petitioner/landlord is based on mere hearsay. It is therefore, held that the version of Defendant Nos. 4, 4A and 5 stand on stronger footing than the version of Petitioner-landlord, about the ground of unlawful sub-letting. akn 13

25.4) The notice issued by erstwhile owner Dr. Rebello in the year 1964, has been held by the Appeal Court as sufficient to conclude that Defendant Nos. 4, 4A and 5 were in possession of their respective portions much prior to 1964 and same cannot be denied by Petitioner being subsequent purchaser.

25.5) The Appeal Court has held that it is totally immaterial as to how and where the payment of compensation was made by Defendant Nos. 4, 4A and 5 to the original tenant Mr. Contractor or his heirs - Defendant Nos. 1 and 2.

25.6) The Appeal Court has held in Paragraph 50 of the impugned judgment that payment of compensation by Defendant Nos. 4, 4A and 5, first to original tenant-Mr. Contractor, and after his demise, to Defendant Nos. 1 and 2 has been admitted by Defendant No. 2. This finding is perverse. In fact, Defendant No. 2-Zarinabai has admitted in her cross-examination that ‘after the death of my father I did not receive any compensation or rent from Defendant Nos. 4 to 6’.

25.7) In Paragraph 51 of the impugned judgment, the Appeal Court has concluded that possession of respective portions of suit premises ‘cannot be without payment of compensation’ which has to be presumed.

25.8) On the basis of letter dated 01/04/1971 (Exhibit 8), the Appeal Court has held in Paragraph 52 that the Leave and license agreement of Defendant Nos. 4 and 4A was very much subsisting on 01/02/1973 and therefore protected under section 15A. akn 14

25.9) Relying on cross-examination of Defendant No. 2 and receipts (Exhibit 9), the aspect of payment by Defendant No. 4 to original Tenant, prior in point of time, has been assumed.

25.10) Surprisingly, so called ‘admissions’ in ‘examination-inchief’ by Defendant No. 4 and 4A about their possession since 1963 as licensees on monthly compensation have been believed. I fail to understand how the Defendant’s statement in examination-in-chief can be taken as relevant piece of evidence. It is a statement of an interested witness. It is not an admission of the Petitioner-landlord.

25.11) The Appeal Court in Paragraph 56 of the impugned judgment has held that ‘time and again Defendants were asked to produce documents to show their case of being licensees and payment of compensation’ and Appeal court finds fault with the Advocate of the landlord for ‘overlooking the aspect of case of Defendants that according to Defendants, no receipts were issued for payment of compensation’. This consideration of evidence is totally perverse as the same shows pre-disposition of the learned Judges of the Appellate Bench.

25.12) Further surprisingly, the Appeal Court has observed in Paragraph 57 of the impugned judgment that witness for Defendant No. 5 has corroborated the case of other Defendants being in possession of their portions. He is bound to corroborate being interested witness. Nothing really turns on that. It is not understood how corroboration of a co-defendant about possession absolves the concerned Defendant from proving subsisting licence along with proof of payment of compensation. akn 15

25.13) It is important to note that Appeal Court was conscious of the fact (as seen from Paragraph 60 of the impugned judgment) that Defendant No. 5 has not even sought amendment of his case claiming protection under amended section 15A of the Bombay Rent Act. However, the Appeal Court has still held that law affords him protection and therefore even in absence of pleadings and contentions, Defendant No. 5 must be protected.

25.14) The Appeal Court has proceeded on the basis that all sub-letting prior to 01/02/1973 automatically becomes lawful under the amended provision of Section 15A of the Bombay Rent Act, which is completely in ignorance of the case made out by the party as well as settled position of law about protection under section 15A.

25.15) Therefore, in my considered view, the whole approach of the learned Appellate Bench of the Small Causes Court was perverse while appreciating the evidence.

25.16) The Appeal Court has apparently got carried away by the fact that Defendant Nos. 4, 4A and 5 were in possession prior to 01/02/1973. Their possession prior to cut-off date was anyway admitted during the course of argument. Therefore what was necessary to be seen is what is exactly the defence of the Defendants and whether that defence is proved. The Appeal Court has proceeded on the presumption that long-standing possession cannot be without payment of compensation. Such assumption is perverse and the evidence ought to have been appreciated in that regard.

26. Since the suit involved is of the year 1974 and the petition itself is pending for last 30 years, remanding the matter to the akn 16 Appellate Court will amount to ‘giving unnecessary lease of life’ to the litigation and therefore, having found that the impugned judgment and decree is perverse, I am considering the pleadings and evidence as also the view taken by the Trial Court.

27. The case made out by the Defendant Nos. 4, 4A and 5 need to be considered separately. So far as Defendant No. 4 is concerned, he has relied on a letter dated 01/04/1971 (Exhibit 8) and three receipts (Exhibit 9). Defendant No. 4A has no documentary evidence in his support and his case stands on oral evidence. So, far as the case of Defendant No. 5 is concerned, his case also does not have any support from documentary evidence and is based on oral evidence.

28. From the defence raised by Defendant No. 4, 4A and 5, it is clear that none of them have raised any defence of legal sub-tenancy or legal sub-letting. The best case that can be derived from the defense is that of being licensee prior to 01/02/1973.

29. Considering the above defence raised, section 14(1) of the Bombay Rent Act, which provides for lawful sub-tenant will not apply. Section 14(2) and 15A about licensee in possession, will have to be considered.

30. Oral evidence Defendant No. 2-Zarinabai (DW[1]) is the most crucial one. She has stated in her examination-in-chief that after the death of her father, she did not receive any compensation or rent from Defendant Nos. 4 to 6. This means that witness for the alleged licensor herself has taken a stand that no compensation was paid by the alleged licensee. The so-called admission of Zarinabai that ‘she will not be able to contradict the statement that her father gave akn 17 respective premises to Defendant Nos 4 and 4A in 1963 on monthly compensation of Rs.75/- on leave and license basis’ is of no importance or consequence. This admission is given by Defendant No. 2 during cross-examination by Defendant Nos 4 and 4A. It is therefore obvious that the Defendants amongst themselves have asked ‘convenient questions’ and given ‘convenient suggestions’ and inability is expressed to contradict the same. Lack of knowledge expressed by Zarinabai about terms and conditions on which her father Mr. Contractor allowed Defendant Nos. 4 and 4A to occupy the suit premises, is also nothing but an answer given to convenient question/suggestion asked by the Co-Defendant and therefore has no value. Defendants are interested witnesses, therefore, these so called admissions do not help the case of any of the Respondents.

31. So far as the letter dated 01/04/1971 (Exhibit 8) is concerned, which is allegedly issued by Defendant No. 2-Zarinabai, said letter does not advance the case of the Respondents. This document is strongly objected by learned Senior Advocate, Mr. Dhakephalkar, contending that it is a fabricated pre-dated document. In this letter, confirmation is given about allowing the use and occupation by Defendant No. 4 on leave and license basis ‘from today’. If this document was really in existence on 01/04/1971, nothing prevented Defendant No. 2 from making a reference to such letter in her written statement. However, written statement of Defendant No. 2 is completely silent about this letter and what is stated (in written statement) is that Defendant No 4 and 4A were ‘allowed to use the suit premises from 01/04/1971’. However, there is no reference to this letter. Also, there are no receipts from 01/04/1971. Therefore, it is clear that this letter dated 01/04/1971 cannot be taken as akn 18 sufficient proof of subsisting license prior to cut-off date.

32. So far as the receipts (Exhibit 9 colly) issued by Defendant NO. 2-Zarinabai, for alleged payment of license fee are concerned, bare perusal shows that the receipts are of November, 1974, December 1974 and January 1975, all of which are after the cut-off date of 01/02/1973. Therefore, these receipts cannot be taken as proof of subsisting license as on 01/02/1973.

33. So far as the notice issued by earlier owner Dr. Rebello on 06/10/1964 is concerned, the argument is that the original landlord has alleged that tenant-Mr. Contractor has unlawfully sub-let the premises to persons whose conduct is a source of nuisance to the owner as well as neighbors. This notice does not make any reference to any license created. If the notice is read carefully, it means that there was unauthorized and illegal creation of third party rights in respect of the suit-premises. In any case, this letter can not change the defence taken by Defendant Nos. 4, 4A & 5. The Defendants must prove their case. Their case, at best, is of oral licence.

34. So far as the case of Defendant No. 5 is concerned, he has not raised any defense except stating that ‘he has independent right’. No evidence is brought on record to establish so called independent right and therefore, the case of the Defendant No. 5 cannot be considered at par with Defendant No. 4 and 4A. From the impugned judgment, it is seen that the Appeal Court has not considered the case of Defendant No. 5 separately and has simply tagged him along with the Defendant Nos. 4 and 4A. Learned Counsel, Mr. Mane, appearing for legal heirs of Defendant No. 5, has not shown to the Court any akn 19 specific evidence, either oral or documentary, in support of the defence raised by Defendant No. 5 that he has independent right in the suit premises.

35. The Defendant No. 4 was examined as DW-2, who was crossexamined on behalf of the Petitioner. He has admitted that he was knowing that the agreement is required to be made on stamp paper and still the letter dated 01/04/1971 was not on stamp paper. He has expressed inability to inform whether he has retained any earlier receipts.

36. The Defendant No. 4A was examined as DW-7, who admitted in the cross-examination by the Petitioner, that except his oral evidence, he has no other evidence to show that the premises were given to him by Mr. Contractor on leave and license basis. He has also admitted that he has no evidence to show that he paid Rs.75/- to Zarinabai from 1965 to 1974. He has further admitted that he did not demand any receipts from the Defendant No. 2-Zarinabai.

37. Defendant No. 2-Zarinabai has taken a stand in written statement that Defendant No. 5 was husband of their maid-servant. Daughter of Defendant No. 5 (whose wife was maid servant of Zarinabai) has entered witness box as DW-11. She was crossexamined on behalf of the Petitioner. She has admitted that her mother was working as maid servant of Zarinabai. It is therefore clear that admittedly Defendant No. 5 was husband of maid servant of the daughter of the original tenant. There is no evidence of payment of compensation. In absence of any evidence of independent right, such occupant cannot be equated with a licensee with subsisting licence, akn 20 and cannot be held as protected tenant under Section 15A of the Bombay Act on the strength of mere occupation.

38. Now let us consider the judgments relied upon by the learned Counsel for the Respondents.

39. The three Judges’ Bench of the Hon’ble Supreme Court, way back in the year 1976, had an occasion of considering the provisions of section 15A of the Bombay Rent Act in the case of D.H. Maniar (supra) when, the Hon’ble Supreme Court has held as under: “10. It is thus clear beyond doubt that in order to get the advantage of Section 15A of the Bombay Rent Act, the occupant must be in occuраtion of the premises as a licensee as defined in Section 5(4A) on the first of February, 1973. If he be such a licensee, the non-obstante clause of Section 15A(1) gives him the status and protection of a tenant in spite of there being anything to the contrary in any other law or in any contract. In other words, even as against the express terms of the subsisting contract of licence the licensee would enjoy the benefits of Section 15A. But if he is not a licensee under a subsisting agreement on the first of February, 1973, then he does not get the advantage of the amended provision of the Bombay Rent Act. A person continuing in possession of the premises after termination, withdrawal or revocation of the licence continues to occupy it as a trespasser or as a person who has no semblance of any right to continue in occupation of the premises. Such a person by no stretch of imagination can be called a licensee. If, therefore, the respondent was not a licensee under a subsisting agreement in occupation of the premises on the first of February, 1973 he could not take shelter under Section 15A of the Bombay Rent Act. The trial Judge found against him. Apart from the position that this was essentially a question of fact and a finding on which could not be interfered with by the the High Court in exercise of its revisional power under Section 115 of the Code of Civil Procedure, the High Court has done so, as we shall point out, by committing such gross errors of law and fact that we were constrained in the beginning of our judgment, though very reluctantly, to make some strong observations against the judgment of the High Court.” [emphasis supplied]

40. It is therefore clear that to get the advantage/protection of akn 21 Section 15A of the Bombay Rent Act, it is necessary that defendant must establish ‘subsisting agreement of license’ as on 01/02/1973. If license under subsisting agreement is not established, then the defendant does not get advantage.

41. Mr. Dhakepadkar relied upon the judgment of Ludhichem Agencies and Others (supra) to contend that the license is coextensive with the licensor's rights, title and interest in the premises and therefore, once the licensor/tenant's contractual tenancy is terminated by service of notice, the erstwhile licensee cannot be deemed to have become tenant u/s 15A of the Bombay Rent Act. In answer, Mr. Dani relied upon the judgment of Chandavarkar Sita Ratna Rao (supra) to contend that after considering Ludhichem Agencies and Others (supra), Hon’ble Supreme Court has held that until a decree of eviction is passed against the tenant, the tenant can create a license and in the present case there was no decree against original tenant. Even accepting this argument of Mr. Dani, in the present case, since there is no evidence to establish subsisting license, this judgment will not help the Respondents.

42. The issue in the judgment of Chandavarkar Sita Ratna Rao (supra), is not really relevant for the purposes of deciding the issue in the present matter. The issue in the said judgment was whether a statutory tenant governed by Bombay Rent Act could have created a valid license before 1973. The Full Bench of this Court took a view that if the tenancy is terminated then tenant has no right to create a license. In the case at hand, the said issue does not arise. On facts, all that is claimed by the Respondents is ‘oral license’. The main issue in the present matter is whether there was a creation of a license by the akn 22 erstwhile landlord - Dr. Rebello in favour of the Respondents and whether there was subsisting license as on the cut-off date. If Respondents are making out a specific case of a license (which is distinct from sub-letting) then they have to show that there was valid and subsisting license with agreement and payment of license fee. For both, licence agreement and payment, there is absolutely no evidence. Therefore this judgment does not advance the case of the Respondents.

43. There is one more aspect that must be noted here in connection with case of Chandavarkar Sita Ratna Rao (Supra). In Paragraph 57 of this judgment, the Hon’ble Supreme Court has held that ‘the licence is not an interest in property and it is purely a personal right.’ Personal right must be established by leading evidence. In the present case, defendant Nos. 4, 4A and 5 have not led any evidence to establish subsisting license in their favour and therefore they are not entitled to protection under the Bombay Rent Act. Also none of the legal heirs of Defendant Nos. 4, 4A and 5, who are opposing this petition today, can be said to have any ‘personal right’ in the suit premises.

44. The other judgments relied upon by Mr. Dani viz. Rajbir Kaur (supra), Bhagwati Spinning (supra) and Bharat Sales Ltd. (supra), are also not helpful to Respondents as these judgments consider case of ‘unlawful sub-tenancy’ and not licensee. In the present case at hand, Respondents are claiming creation of ‘a license’ which is not the same as ‘sub-tenancy’. In the present case neither there is any agreement of license nor there is any proof of payment as on 01/02/1973. So these judgments do not help the case of the akn 23 Respondents.

45. So far as judgment of N.N. Dogra (supra) relied upon by Mr. Purohit is concerned, its careful reading shows that on facts, the learned single Judge of this Court has held that there was a subsisting license on 01/02/1973. The license was in writing, the payment was in writing (see paragraph 9, 11 & 14 thereof). Paragraph No.11 of the said judgment indicates that after expiry of last renewal of license, the licensor had requested licensee to deposit certain amount by adjusting the same against compensation. In that context, and in those particular facts, the learned Single Judge of this Court held that parties agreed for continuation of license arrangement even after expiry of license period. The facts of the present case at hand are completely different. There is no written agreement and no evidence about subsisting licence as on 01/02/1973. Therefore, this judgment will not advance the case of the Respondents.

46. In Lakhichand Punamchand (supra), learned Single Judge of this Court has held that the sum total of the effect of amendments was to legalize all sub-tenancies, which had been created against the prohibition before 01/02/1973. Since the present case is not about creation of sub-tenancy, but a clear case of alleged license, this case will not help the Respondents.

47. So far as the judgment of Dattatraya Pyurshottam Bhave (supra) is concerned, again it is seen that it was a case of sub-tenancy under consideration and therefore, clearly distinguishable from the facts of the present case. Therefore, it will not help the Respondents. akn 24

48. In view of the aforesaid facts and circumstances, dismissal of suit by the Appeal Court cannot be sustained. The Trial Court had appreciated the evidence on the record in proper perspective and had rightly granted decree of eviction. Therefore, the Petition succeeds. Rule is made absolute in the following terms: (A) The impugned common judgment and decree dated 29/03/1995 passed in Appeal Nos. 253 of 1986, 268 of 1986, 254 of 1986 is quashed and set aside. The said Appeals are dismissed, thereby confirming the eviction decree passed by Trial Court dated 21/02/1986 in R.A.E. Suit No. 2153/7487 of 1974. (B) All the Respondents (legal heirs of Defendant No. 4, 4A and 5) are directed to vacate the suit premises and hand over its peaceful possession to the Petitioner immediately. The decree of eviction becomes executable forthwith.

49. At this stage, a request is made to grant stay to eviction decree for eight weeks. Subject to condition of all the Respondents and all the adult family members of the Respondents filing undertakings in this Court, within a period of three weeks from today, stating that they shall hand over vacant and peaceful possession of their respective portions of the suit premises to the Petitioner within a period of six weeks from today, and till such time, they shall not induct third persons and shall not create third party interest in suit premises, time of six weeks is granted to vacate the suit premises. of this order. (M. M. SATHAYE, J) akn 25