FARUK ILAHI TAMBOLI &ANR.versusB.S. SHANKARRAO KOKATE (D) BY LRS. & ORS.

                       [2015] 10 S.C.R. 1130


A                 FARUK ILAHI TAMBOLI &ANR.
                                  v.
        B.S. SHANKARRAO KOKATE (D) BY LRS. & ORS.
                  (Civil Appeal No.8648 OF 2015)
B
                        OCTOBER 14, 2015
     [JAGDISH SINGH KHEHAR AND R. BANUMATHI, JJ.]

        Rent control and eviction:
c       Bonafide need ~ Tenanted shop measuring 9. 7 sq.
  meters -Appel/ants-Landlords seeking eviction of tenanted
  shop on the ground that they need the shop for their own
  business - Plea of appellants that they were selling betel
  nuts and betel leaves in the open on the street and they
0
  needed the shop in question which was most suited for their
  business- Plea of respondent-tenant that the appellants were
  in joint business with their father and uncle and do not require
  the suit shop - Held: The properly owner has right to use his
E property as he chooses, and if the appellants in the instant
  case had purchased the suit property, for running their own
  business, there is no irregularity therein, nor can there be
  any doubt about their bonafide desire to run the proposed
  business in the premises, independent of the other family
F members - The premises measuring a mere 9. 7 square
  meters would be most suitable for selling betel-nuts and bate/"
  leaves - This is the usual size of the shops engaged in such
  business-Plea of tenant that appellants purchased another
  properly measuring 105- 7 sq. meters during pendency of the
G eviction suit and same can be used by them- Said plea not
  tenable since a retail business of selling betel-nuts, bidi and
  tobacco etc. cannot be run from a premises as large as the
  one measuring 105- 7 sq. meters and it is unlikely for
  customers to visit such a large premises for buying betel-
H
                                1130
  FARUK ILAHI TAMBOLI v. B.S. SHANKARRAO KOKATE                1131
                    (D) BY LRS.

• leaves; betel-nuts and bidis etc. - The suit premises which A
  measures 9. 7 sq. meters would attract retailers of the trade
  under reference, as shops .selling betel-leaves and betel-nuts
  are usually of the size of the suit property - Furthermore,
  respondent-tenant was running a grocery shop, had a
  separate business premises wherein he was having a bicycle- B
  shop and, in addition thereto, he had agricultural lands and
  also a wine shop in partnership with his wife - Thus, even
  the comparative hardship would be that of the appellants, as
  against the respondents - Appellants entitled to eviction
  decree.                                                        C
        Allowing the appeal, the Court
       HELD: 1. The fact, that the instant premises was
 purchased by the appellants on 06.09.1980 for a total
 consideration of Rs.10,000/- even though the same was          D
 earning a meager rent of Rs.36/- per month, is indicative
 of the fact, that the appellants had not purchased the
 premises for earning rent therefrom, but for the purpose
 of running a business therein. The assertion made by           E
 the appellants that they wished to sell betel-leaves and
 related articles in the premises, has not been seriously
 contested at the hands of the respondents. It was not
 the case of the respondents that any business activities
 were being carried out by the appellants independently,        F
 from their father and uncle, when the civil suit was filed.
 It certainly cannot be the claim at the behest of a tenant,
 that the owner of a premises must continue in business
 with his parents or relations, assuming there was a joint
 business activity, to start with. That is usual, and           G
 happens all the time when children come of age. And
 thereafter, they must have the choice to run their own
 life, by earning their own livelihood. The property owner
 has the right to use his property as he chooses, and if
 the appellants in the instant case had purchased the suit      H
1132         SUPREME COURT REPORTS               [2015] 10 S.C.R.


 A     property, for running their own business, there is no
       irregularity therein, nor can there be any doubt about
       their bona fide desire to run the proposed business in
       the premises, independent of the other family members.
       The premises measuring a mere 9.7 square meters would
 B     be most suitable for the business proposed by the
       appellants, namely, for selling betel-nuts and betel-
       leaves. This is the usual size of the shops engaged in
       such business. The affidavit placed by the respondents
       was to the effect that reference therein has been made
 C     to a property adrneasuring 114-2 square meters. This
       property was purchased by appellants during the
       pendency of the proceedings arising out of eviction suit.
       The affidavit itself indicates, that the premises is being
       used by the appellants to run a flour mill. Even if the said
 0
       factual position is accepted, it cannot be the case of the
       respondents, that the appellants can run their betel-nuts
       and betel-leaves business, from the premises which has
       a running flour mill. Thus viewed, the purchase of said
 E     property was inconsequential in respect of the present
       controversy. The above affidavit further indicates, the
       purchase of property admeasuring 105-7 square meters
       by the appellants. This property was also purchased
       during the pendency of the proceedings arising out of
 F     eviction suit.[Paras 13, 14] [1139-E-H; 1140-A-H; 1141-A]

         2. A retail business of selling betel-nuts, bidi and
   tobacco etc. cannot be run from a premises as large as
   the one which admittedly measures 105-7 square meters.
 G It is unlikely for customers to visit such a large premises
   for buying betel-leaves, betel-nuts and bid is etc. The suit
   premises which measures 9.7 square meters would
   attract retailers of the trade under reference, as shops
   selling betel-leaves and betel-nuts are usually of the size
 H of the suit property. [Para 14] [1141-D-E]
 FARUK ILAHI TAMBOLI v. B.S. SHANKARRAO KOKATE                 1133
                   (D) BYLRS.

    3. Although, in the affidavit filed before the High A
Court, respondent No.1 made a reference to some of the
properties which were used for business by his wife, he
did not dispute the fact that he was running a grocery
shop and besides that, he had a separate business
premises wherein he was having a bicycle-shop and, in B
addition thereto, he had agricultural lands. It is also not
disputed that the respondent was running a wine shop
in partnership with his wife. Thus viewed, that the
comparative hardship would be that of the appellants,
as against the respondents. [Para 16) [1144-B-D)            C

     Mattu/a/vs. Radhe La/1975 (1) SCR 127: (1974)
     2 SCC 365; Hasmat Rai and another vs.
     Raghunath Prasad 1981 (3) SCR 605: (1981) 3
     SCC 103 - referred to.                                    D

                    Case Law Reference

    1975 (1) SCR 127            referred to.     Para 11

    1981 (3) SCR 605            referred to.     Para 12       E

   CIVIL APPELLATE JURISDICTION: Civil Appeal No.
8648 of 2015

    From the Judgment and Order dated 26.02.2010 of the        F
High Court of Bombay in Writ Petition No. 2254 of 1993

    Punam Kumari for the Appellants.

   Chinmoy Khaladkar, Vimal Chandra S. Dave for the
Respondents.                                        G

    The Judgment of the Court was delivered by
     JAGDISH SINGH KHEHAR, J. 1.The petitioners-
plaintiffs purchased the suit property bearing CTS No.2640/C   H
1134          SUPREME COURT REPORTS                   [2015] 10 S.C.R.


 A     in Barshi town, Barshi Taluka, District Sholapur, measuring 9.7
       square meters, on 06.09.1980. At the time of purchase of the
       property, the ancestor of the respondent-defendant (who has
       since expired, and is now represented by his legal heirs) was
       occupying the suit property as a tenant. The contractual rent
 B     thereof was Rs.36/- per month. Having purchased the
       aforesaid property, the petitioners issued a notice to the
       respondent, intimating him about the change in title. In spite
       of receipt of the attornment notice, the respondent did not
       tender any rent to the petitioners for the period from 1980 to
 C     1982. The petitioners then issued a notice dated 01.05.1982,
       demanding arrears of rent at the rate of Rs.36/- per month.
       Despite of the receipt of aforesaid notice, the respondent did
       not tender any rent to the petitioners. In fact, through a
 D     communication dated 10.09.1982, the respondent took a
       stand, that he had filed an application for fixation of "standard
       rent", and as such, till the aforesaid application was disposed
       of, no rent was payable by him to the petitioners. Insofar as
       the issue of non-payment of rent, and the prayer made by the
 E     petitioners in the aforesaid notice for eviction from the premises
       are concerned, the stand adopted by the respondent was that
       he was not a defaulter for a period of more than six months,
       and as such, the notice issued by the petitioners was invalid
       under the provisions of the Bombay Rents, Hotel and Lodging
 F     House Rates Control Act, 1947 (hereinafter referred to as 'the
       RentAct'). The assertion that the respondent was not a defaulter
       for more than six months, was based on yet another factual
       assertion, that the respondent had paid a sum of Rs.180/- by
       cash to the uncle of the petitioners, whereafter the respondent
 G     was not in default for a period of more than six months.
        2. Consequent upon the denial by the respondent to tender
   any rent, the petitioners filed Regular Civil Suit No.420of1982.
   In the aforesaid Suit, besides the plea of eviction based on
 H non-payment of rent, the petitioners also claimed the premises
   for their reasonable and bona fide need.
  FARUK ILAHI TAMBOLI v. B.S. SHANKARRAO KOKATE                     1135
      (D) BY LRS. [JAGDISH SINGH KHEHAR, J.]

       3. The respondent contested the aforesaid Suit by A
  preferring a written statement wherein he reiterated, that the
  rent was not payable by him to the petitioners till the fixation of
  "standard rent". It was also his claim, that an application for
  determination of "standard rent" was pending. He also
 ·undertook to pay all arrears of rent, as and when the aforesaid B
· application was disposed of. It is not a matter of dispute that
  the respondent had impleaded the petitioners, in the aforesaid
  application (for fixation of "standard rent") and for all intents
  and purposes, the petitioners participated in the proceedings
  pertaining to the fixation of "standard rent". On the issue of C
  eviction based on non-payment of rent, the stand adopted by
  the respondent was that he had paid a sum of Rs.180/- by
  cash to the uncle of the petitioners, and on account of the said
  payment, the notice issued by the petitioners seeking eviction
                                                                      0
  of the respondent on the ground of non-payment of rent, was
  defective.

     4. The Standard Rent Application No.80/1979 was finally
 decided on 16.10.1984. The Courtfixe~ the "standard rent" at
 Rs.36/- per month, which admittedly was the same ·as the            E
 contractual rent payable by the respondent on account of the
 tenancy of the suit property.

      5. The trial Court disposed of Regular Civil Suit No.420 of
 1982, on 15.03.1989. The pleas raised by the petitioner were F
 accepted. Dissatisfied with the order passed by the trial Court,
 the respondent preferred Civil Appeal No.187 of 1989 before
 the IV Additional District Judge, Sholapur. The IV Additional
 District Judge, Sholapur, disposed of the above appeal on
 21.04.1993 by reversing the decision rendered by the trial G
 Court. It is, therefore, that the petitioners-landlords approached
 the High Court by filing Writ Petition No.2254 of 1993. The
 said Writ Petition was dismissed on 26.02.2010, which has
 led to the filing of the present special leave petition.
                                                                    H
1136         SUPREME COURT REPORTS                 [2015] 1O S.C.R.


 A         6. Leave granted.
           7. We have heard learned counsel for the rival parties.
            8. Having given our thoughtful consideration to the
       submissions advanced at the hands of the learned counsel for
 B     the rival parties, we are satisfied that no interference.
       whatsoever is called for, on the claim of the appellants for the
       eviction of the respondents, on the ground of non-payment of
       rent. We, therefore, hereby affirmed the findings recorded by
       the IV Additional District Judge, Sholapur, as also by the High
 C     Court, on the issue of non-payment of rent.

          9. The question that has engaged us while hearing the
     present controversy, pertains only to the bona fide need of the
     appellants, of property bearing CTS No.2640/C, which was
 D purchased by the appellants on 06.09.1980. The aforesaid
     premises admittedly measures 9.7 square meters. The claim
     of the appellants was, that they needed the premises to run
     their own business. It was the assertion of the appellants, that
     at the relevant time, they were selling betel-nuts and betel-
 E leaves, in the open on the street, and that, they needed the
     shop in question, which was most suited for the af()restated
     business. The claim of the appellants was disputed by the
     respondents, by asserting that the appellants were joint with
     their father and uncle, in residence as well as in business. It
 F · was the case of the respondents, that the father and uncle of
     the appellants, were running their business in CTS No.2640/A
     and 2640/B. It was pointed out, that they were also dealing in
     the business of betel-leaves, betel-nuts, bidys (Indian hand-
     rolled cigarettes) and tobacco etc. It was, therefore, the
 G assertion at the behest of the respondents, that the plea of
     bona fide necessity was merely a trumped up plea, and was
     wholly unacceptable.

       1O.The repudiation at the hands of the respondents, was
 H sought to be controverted by the appellants by asserting, that
 FARUK ILAHI TAMBOLI v. B.S. SHANKARRAO KOKATE                    1137
     (D) BY LRS. [JAGDISH SINGH KHEHAR, J.]

they were not joint and that, there was no system of joint family A
amongst Mohammedans. The case set up was that amongst
Muslims, there was no presumption of passing of joint family
property to descendants. It was submitted, that even the ration
cards of the appeliants were separated from other members
of the family in 1985 (even though admittedly the suit for eviction B
was filed in 1982). It was the contention of the respondents,
that the father and uncle of the appellants were unwell, and in
fact, the business of the father and uncle was being taken care
of by the appellants. Besides the aforesaid, learned counsel
for the respondents invited our attention to the fact, that an C
affidavit was filed by one of the legal heirs of the original tenant
before the High Court, during the course of proceedings in
Writ Petition No.2254of1993, wherein the following stand was
adopted by the respondents:
                                                                   D
     "7. I state that the Petitioners have also purchased the
     property bearing CTS No.3569/A after admission of the
     present Writ Petition. I state that the property bearing
     CTS No.3569/Ais admeasuring 114-2 Sq.mtrs. and the·
     Petitioners are running a flour mill in the said property. E
     Hereto marked and annexed as Exhibit-· 4' is the copy of
     the property extract of the property bearing CTS No.3569/
     A.
     8. I state that the Petitioners after admission of the F
     abovementioned Writ Petition on 29.4.1994 have
     purchased property bearing CTS No.3568/A, which is
     admeasuring 105-7 Sq.mts. I state thatthe said property
     bearing CTS No.3568/A is situated at less than 100 mtrs.
     from the suit property. I state that the Petitioners -are G
     carrying wholesale business of various goods including
     beetle leaves. cigarette and fire work items. Hereto
     marked and annexed as Exhibit-'5' is the copy of the
     property extract of the property bearing CTS No.3568A."
                                            (emphasis is ours)     H
1138          SUPREME COURT REPORTS                     [2015] 10 S.C.R.


 A      11. In view of the factual position indicated in the affidavit
   extracted above, it was submitted by the learned counsel for
   the respondents, that the need of the appellants could not be
   considered to be bona fide. Additionally, it was pointed out,
   that on account of purchase of business premises during the
 B pendency of the proceedings, it was not possible to assume,
   that the bona fide necessity of the 'appellants was subsisting.
   In order to support his contention, learned counsel for the
   respondents placed reliance on Mattulal vs. Radhe Lal, (1974)
   2     sec
           365, and placed reliance on the following observations:
 c
             "12. The question would still remain whether there were
       proper grounds on which this finding of fact could be interferred
       with by the High Court. It is now well settled by several decisions
       of this Court including the decision in SarvateT.B.'s case(supra)
 D     and Smt. Kamla Son i's case( supra) that mere assertion on
       the part of the landlord that he requires the non-residential
       accommodation in the occupation of the tenant for the
       purpose of starting or continuing his own business is not
       decisive. It is for the court to determine the truth of the assertion
 E     and also whether it is bona fide. The test which has to be
       applied is an objective test and not a subjective one and
       merely because a landlord asserts that he wants the non-
       residential accomm_odation for the purpose of starting or
 F     continuing his own business, that would not be enough to
       establish that he requires it for that purpose and that his
       requirement is bona fide. The word 'required' signifies that
       mere desire on the part of the landlord is not enough but
       there should be an element of need and the landlord must
 G     show·- the burden being upon him - that he genuinely requires
       the non-residential accommodation for the purpose of starting
       or continuing his own business. The Additional District Judge
       did not misdirect himself in regard to these matters, as for
       example, by misconstruing the word 'required' or by
 H     erroneously placing the burden of proof on the appellant and
  FARUK ILAHI TAMBOLI v. B.S. SHANKARRAO KOKATE                      1139
      (D) BY LRS. [JAGDISH SINGH KHEHAR, J.]

 no error of law was committed by him in arriving at the finding A
 of fact in regard to the question of bona fide requirement of
 the respondent, which would entitle the High Court in second
 appeal to interfere with that finding of fact."

      12. In addition to the above, learned counsel placed B
 reliance on Hasmat Rai and another vs. Raghunath Prasad
 (1981) 3 sec 103, so as to contend, that the events which
 transpired during the pend ency of the proceedings, were liable
 to be taken into consideration for arriving at a final
 determination, whether the bona fide need of the tenant C
 subsists, and it is only thereafter, that the eviction of a tenant
 can be ordered (based on the ground of bona fide necessity,
 raised by a landlord).

        13. Insofar as the submissions advanced by the learned        o
  counsel for the rival parties are concerned, the first question
  that draws our attention is, whether or not the need of the
  appellants was bona fide, when the civil suit was preferred by
  the appellants on 10.09.1982. Having given our thoughtful
  consideration to the aforesaid issue, we are satisfied, that the E
  fact, that the instant premises was purchased by the appellants
  on 06.09.1980 for a total consideration of Rs.10,000/- even
  though the same was earning a meager rent of Rs.36/- per
  month, is indicative of the fact, that the appellants had not
  purchased the premises for earning rent therefrom, but for the F
  purpose of running a business therein. The assertion made by
  the appellants that they wished to sell betel-leaves and related
· articles in the premises, has not been seriously contested at
  the hands of the respondents. But then, were the appellants
  engaged in some other alternative business, at the time when G
  the civil suit was filed? It was not the case of the respondents,
  that any business activities were being carried out by the
  appellants independently, from their father and uncle, when the
  civil suit was filed. It certainly cannot be the claim at the behest H
1140          SUPREME COURT REPORTS                   [2015] 10 S.C.R.


 A of a tenant, that the owner of a premises must continue in
   business with his parents or relations, assuming there was a
   joint business activity, to start with. That is usual, and happens
   all the time when children come of age. And thereafter, they
   must have the choice to run their own life, by earning their own
 B livelihood .. The property owner has the right to use his property
   as he chooses, .and if the appellants in the instant case had
   purchased the suit property, for running their own business,
   we find no irregularity therein, nor can there be any doubt about
   their bona fide desire to run the proposed business in the
 C premises, independent of the other family members. The
   premises measuring a mere 9.7 square meters, we are
   satisfied would be most suitable for the business proposed
   by the appellants, namely, for selling betel-nuts and betel-
 D leaves. This is the usual size of the shops engaged in such
   business.

             14.The aforesaid determination, however, would not
       rendera finaldecision in favour of the appellants, forthe reason,
       that we would still have to determine whether the bona fide
 E     need of thetappellants was subsisting? It is therefore, that we
       will venturetofdeal with the affidavit placed on our record, by
       the learned counsel for the respondents, relevant extracts of
       which have been reproduced hereinabove. A perusal of the
 F     same reveals, that reference therein has been made to a
       property bearing CTS No.3569/A ad measuring 114-2 square
       meters. This property was purchased during the pendency of
       the proceedings arising out of Regular Civil Suit No.420 of
       1982. The affidavit itself indicates, that the aforesaid premises
 G     is being used by the appellants to run a flour mill. Even if the
       aforesaid factual position is accepted, it cannot be the case
       of the respor:idents, that the appellants can run their betel-nuts
       and betel-leaves business, from the premises which has a
       running flour mill. Thus viewed, the purchase of property bearing
 H     CTS No.3569/A is inconsequential insofar as the present
  FARUK ILAHI TAMBOLI v. B.S. SHANKARRAO KOKATE                         1141
      (D) BY LRS. [JAGDISH SINGH KHEHAR, J.]

  controversy is concerned. The above affidavit further indicates,      A
  the purchase of property bearing CTS No.3568/A admeasuring
  105-7 square meters by the appellants. This property was also
  purchased during the pendency of the proceedings arising out
  of Regular Civil Suit No.420of1982. It was also submitted,
  that the instant property bearing CTS No.3568/A, is at a              B
  distance of merely 100 meters from the suit property.. It is also
  the assertion of the learned counsel for the respondents, that
  the appellants are running wholesale business of various goods
  including betel-leaves, cigarettes and fire-work items, and as
  such, the instant premises could be put to use for the additional     C
  purpose, for which the suit premises is being claimed by the
  appellants. Even though the instant contention appears to be
  attractive, it is not possible for us.to accept the same, because
  a retail business of selling betel-nuts, bidi and tobacco etc.
                                                                        0
  cannot be run from a premises as large as the one in CTS
  No.3568/A which admittedly measures 105-7 square meters.
  It is unlikely for customers to visit such .a large premises for
  buying betel-leaves, betel-nuts and bid is etc. In our view, the
  suit premises which measures 9. 7 square meters would attract·        E
· retailers of the trade under reference, as shops selling betel-
  leaves and betel-nuts are usually of the size of the suit property.
  We therefore decline the submissions advanced by the learned
  counsel for the respondents in this regard.
                                                                        F
      15. Having arrived at the above conclusion, it is imperative
 for us also to determine the question of comparative hardship
 between the parties. It was the submission of the learned
 counsel for the respondents, that they have no business
 premises other than the one in question to earn their livelihood,      G
 and that, if the respondents were to be vacated from the
 premises, they would be deprived of their entire livelihood. The
 submissions advanced by the learned counsel for the
 respondents, in our view, does not lie in his mouth specially on
 account of the factual position depicted in the findings recorded      H
1142        SUPREME COURT REPORTS                   [2015] 10 S.C.R.


 A     by the trial Court in paragraph 13 of the order dated
       15.03.1989, which is being extracted hereunder:

             "13. Now it has to be seen as to whom greater hardship
             will cause in case of eviction. The fact is on record that
 B           adjacent to suit property, there is property bearing
             C.T.S.No.2641 wherein the defendant is running grocery
               '
             shop.    So in case of eviction of defendant from the suit
             premises. there will not be much loss to the defendant
             as already he is in possession of some premises
 c           adjacent to the suit premises. No fact was brought on
             record that this premises C.T.S.No.2641 is not sufficient
             for him to run both business of grocery shop and paint. It
             was contended on· behalf of the defendant that he will
             have to remain without food in case of his eviction from
 D           the suit premises. But this contention of the defendant
             appears to be baseless, because, the record shows that.
            the defendant has got agricultural lands. bicycle shop in
            the name of his son and also grocery shop being run in
           . C.T.S.No.2641 adjacent to the suit property. Further the
 E           fact is on record that, the defendant is running wine shop
             in partnership. So all these circumstances are sufficient
             to infer that. the defendant will not be put to greater
             hardship in case he is evicted from the suit property,
             because there is alternative accommodation available
 F          for the defendant which is adjacent to the suit premises
             and there are other sources from which the defendant
             can earn and is earning. Much efforts were made on
             behalf of the defendants to show how the plaintiffs are
            economically sound. It was shown ori behalf of the
 G
             defendant that the plaintiffs are dealing the business of
            matador and for that he has examined witnesss Devdhar
             and Dhale. The witness Devdhar has stated that he was
            driver on the matador of the plaintiffs and the plaintiffs
 H          used to pay his remuneration.The witness Dhale has
FARUK ILAHI TAM80LI v. B.S. SHANKARRAO KOKATE                  1143
    (D) BY LRS. [JAGDISH SINGH KHEHAR, J.]

   stated that at one occasion he had obtained the vehicle A
   of the plaintiffs on hire to proceed on journey. The sum
   and substance of the defendants contention appears that
   the plaintiffs are well to do. But even if for the sake of
   time being it is presumed that, the plaintiffs are dealing
   in business of matador, that cannot be linked with the B
   need of plaintiff's suit premises, because in the matador
   the plaintiffs cannot run their business of betel leaves,
   bidy, cigarettes and other in which they desire to step.
   For this business only property like suit premises (is)
   required and matador will not fulfill that purpose .. C
   Therefore I am not inclined to rely upon the contentions
   of the defendant that he will suffer more loss in case of
   his eviction and that loss will be comparatively more the
   suit premises. Consequently. I am of the opinion that.
                                                                 0
   more hardship will be caused to the plaintiffs if they are
   not put in possession of the suit premises because it will
   be as like to deprive plaintiffs from their right and enjoy
   their own property for their bonafide requirement. Fact
   has been admitted by the defendant that, the plaintiffs E
   are well vertical in business of pan, bidy etc. It is for all
   the time contention of the defendant that, the suit property
   has been purchased by the plaintiffs, that the rent.has
   been paid by him to plaintiffs, so all these callings by
   defendant to plaintiffs in relation to suit prqperty shows F
   that, suit property has been presumed by defendant as
   belong to the plaintiffs and in existence of these facts
   contention of the defendant cannot be accepted that
   there is alternative accommodation for plaintiffs.to run
   their business in the premises of their father or uncle when G
   it is not basic contention of the defendant that, the suit
   property has been purchased by the plaintiffs, theirfather
   and uncle jointly. In the result, I answer issue no.7Ain the
   affirmative and issue no.7B accordingly."
                                            (emphasis is ours) · H
1144          SUP_REME COURT REPORTS                 [2015] 10 S.C.R.


 A        16. The reason for us to rely on the averments recorded in
     paragraph 13 extracted hereinabove, emerges from the fact,
     that the factual position depicted therein, was not disputed by
     the respondents, in the affidavit filed before the High Court.
     Although, in the affidavit filed before the High Court, respondent
 B No.1 made a reference to some of the properties which were
     used for business by his wife Kusum Kokate, he did not dispute
     the fact that he was running a grocery shop in CTS No.2641,
     and besides the aforesaid, he had a separate business
     premises wherein he was having a bicycle-shop and, in
 C · addition thereto, he had agricultural lands. It is also not disputed
     that the respondent .was running a wine shop in partnership
     with his wife. Thus viewed, we are satisfied, that the
     comparative hardship would be that of the appellants, as
     against the respondents.
 0
          17. In view of the above, we are of the view that the
     impugned orders passed by the IV Additional District Judge,
     Sholapur dated 21.04.1993, and by the High Court dated
     26.02.2010, while disposing of Writ Petition No.2254of1993
 E · deserve to be set aside. The same are accordingly hereby
     set aside. The instant appeal is allowed: The respondents are
     directed to vacate the premises on or before 31.12.2015.

       Devika Gujral                                      Appeal· allowed.