Having held so, I shall now deal with the argument of the learned counsel appearing for the original Defendant that the Trial Court has not considered evidence in its correct perspective. After going through the impugned orders, I find absolutely no merit in this contention. As far as the issue of non-user is concerned, the same has been dealt with by the Trial Court from paragraphs 9 to 15 of its order. It has referred to the evidence in considerable detail and after examining it in its entire perspective has come to the conclusion that the Defendant was not using the suit premises for a continuous period of six months prior to the filing of the suit. What is important to note is that the Trial Court has taken into consideration the electricity consumption for the suit premises and has clearly stated that on most of the times electricity consumption was 'Zero' units for the period from June 2005 to January 2009. The learned Trial Court correctly surmises that if the Defendant was actually using and living in the suit premises as contended by him, there ought to be a regular consumption of electricity. Merely because the Defendant has produced the ration-card, election identity card and other documents showing the address of the suit premises would not by itself with nothing more, establish that the suit premises were used by the Defendant. Another factor that the Trial Court took into consideration was the fact that the wife of the Defendant admittedly used the alternate premises in Thane. It is not the case of the Defendant that he is estranged from his wife and living separately. This is coupled with the fact that the Defendant was 71 years old and was certainly unlikely to live alone all by himself. Another factor which indicates that the suit premises were not being used by the Defendant, are the service reports of the Bailiff. These reports clearly shows that the Defendant was not available at the suit premises on three occasions when the writ of summons was sought to be served at the said address. When inquiries were made with the neighbour, it was revealed that most of the times the premises remained locked. Looking to all these facts and considering all the evidence, the Trial Court disbelieved the story of the Defendant that he was in use and occupation of the suit premises as alleged by him. Even the appellate Court has considered all these aspects and confirmed the findings and conclusions reached by the Trial Court on this issue. On going through these findings and conclusions, I am clearly of the opinion that the Courts below have correctly applied their mind to the evidence led before them and come to the correct conclusions. It certainly cannot be said that the analysis of the evidence done by the Courts below suffers from any perversity as sought to be contended before me.
IN THE HIGH COURT OF BOMBAY
Civil Revision Application No. 746 of 2015
Decided On: 15.06.2017
Shridhar Dattatraya Karadkar Vs. Narayan Laxman Soparkar
Hon'ble Judges/Coram:
B.P. Colabawalla, J.
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