Supreme Court Restores Eviction Decree, Holds Co-Landlord's Pleadings and Proof Were Sufficient
A bench of Justices Manmohan and Manoj Misra reversed the Bombay High Court, holding that a co-landlord's plaint adequately pleaded bona fide need and landlord status under the Bombay Rent Act.
The Supreme Court on 15 May 2026 set aside a Bombay High Court order that had reversed concurrent eviction decrees passed by the Small Causes Court and its Appellate Bench, and restored the original decree directing eviction of the tenant from a flat in Chembur, Mumbai.
The Court held that the appellant, Marietta D'Silva, had adequately pleaded her status as co-landlord and her bona fide need for the suit premises in the plaint, and had proved those facts through evidence.
The judgment, authored by Justice Manmohan, also addresses when a deficiency in pleadings cannot be raised for the first time in appeal, whether share certificates for land carry an interest in the building standing on that land, and how courts may take account of events occurring after the institution of a suit.
How the Dispute Reached the Supreme Court
The factual thread runs back to 1962. The father of the appellant executed a sub-tenancy agreement for flat No.2 (“Suit Premises”) in the Memorare Building, 16th Road, Chembur, Bombay, in favour of one Mr. Augustine Lacerda.
The building stood on land held under a 99-year lease from St. Anthony's Homes Cooperative Society Ltd., and five share certificates for that land were issued to the appellant's parents in 1959. Augustine Lacerda died on 7 December 1969 and the sub-tenancy devolved upon his widow, Mrs. Virginia Lacerda.
On 5 July 1987, the five share certificates were transferred into the joint names of the appellant, her sister, and their family members. Mrs. Virginia Lacerda died on 18 March 1993. Three months later, in July 1993, the appellant and her sister filed an eviction suit against Mrs. Lacerda's legal heirs — Defendant Nos.1 to 3 — on grounds of bona fide need coupled with greater hardship under Section 13(1)(g) read with Section 13(2), acquisition of alternative accommodation by the tenants under Section 13(1)(l), and change of user under Section 13(1)(k) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947.
The Small Causes Court decreed the eviction suit on 14 September 2007, finding that the appellant had established her bona fide requirement, that alternative accommodation was available to the tenants, and that comparative hardship favoured the appellant. The claim of the co-plaintiff sister was rejected because she resided in Goa, and the change-of-user plea was also rejected. The tenants appealed. The Appellate Bench of the Small Causes Court dismissed the appeal on 25 July 2017.
Respondent No.1,son of the deceased Defendant No.1,then filed Civil Revision Application No. 308 of 2019 before the Bombay High Court. On 23 June 2025, the High Court allowed the revision, set aside the concurrent decrees, dismissed the eviction suit, and directed the appellant to restore possession of the Suit Premises to Respondent No.1. The appellant approached the Supreme Court by way of a special leave petition, which was converted into the present civil appeal.
What the High Court Did and Why the Supreme Court Disagreed
The High Court's central objection was that the appellant's case rested on a “family partition” , an arrangement under which flat Nos.5 and 6 were allotted to her brothers and flat No.2 to her , which had not been pleaded in the plaint.
The respondents before the Supreme Court pressed the same point: the plaint contained only a general assertion of landlordship without pleading any family arrangement, division of the building, or transfer of the right to receive rent.
The Supreme Court rejected this characterisation. It found that the plaint did assert the appellant's status as co-landlord along with her parents and siblings, and sought recovery of possession on the statutory grounds of bona fide need, relative hardship, and availability of alternative accommodation to the tenants.
Those were the material facts required to be pleaded. The family arrangement and the share certificates were evidence adduced to prove those material facts, not material facts themselves that needed to appear in the plaint.
The Court drew the distinction between facta probanda — the material facts to be proved, which must be stated in the pleadings and facta probantia — the evidence by which those facts are proved, which need not be pleaded. Relying on Virender Nath Gautam v. Satpal Singh & Ors., (2007) 3 SCC 617, the Court held that the family arrangement and the share certificates fell in the latter category. The plaint had pleaded the cause of action; the evidence established it.
The Court also held that even if there were a deficiency in the pleadings, the issue could not be raised for the first time in revision. Citing Ram Sarup Gupta (Dead) By LRs. v. Bishun Narain Inter College & Ors., (1987) 2 SCC 555, and Bachhaj Nahar v. Nilima Mandal & Anr., (2008) 17 SCC 491, the Court held that where parties knew the case and proceeded to trial on the issues by producing evidence, it is not open to a party to raise the question of absence of pleadings in appeal.
Share Certificates for Land Carry an Interest in the Building
The respondents argued in cross-examination that the share certificates disclosed names of co-owners of the land, not owners of individual flats, and therefore could not establish the appellant's exclusive landlordship of the Suit Premises.
The Court addressed this by reference to Section 8 of the Transfer of Property Act, 1882, which provides that upon transfer of property all the interest passes to the transferee which the transferor is then capable of passing, and where the property is land it includes all things attached to the earth.
Section 3 of the same Act defines things attached to the earth to include buildings. The Court held that unless a contrary intention appears in the instrument of transfer, an interest in land necessarily implies an interest in the building standing on it.
The defendant's own witness, DW-1, had admitted in examination-in-chief that the Suit Building was constructed by the appellant's father. The share certificates stood in the names of all co-owners including the appellant, and the transfer of those certificates on 5 July 1987 into the joint names of the appellant and her siblings was not challenged in cross-examination.
The Court held that the appellant had conclusively proved she was a holder of the share certificates, had an interest in the land, and was a co-owner of the Suit Building at the time of filing the suit.
Co-Landlord Status Under the Bombay Rent Act
Section 5(3) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 defines “landlord” as any person who is for the time being receiving, or entitled to receive, rent in respect of any premises whether on his own account or on account of, or on behalf of, or for the benefit of any other person.
The appellant had deposed in cross-examination that she was receiving rent on behalf of her mother. The Court held that as co-owner of the Suit Building, the appellant was entitled to receive rent and fell squarely within the statutory definition of landlord. She was therefore a co-landlord as well as co-owner at the time of filing the suit.
Bona Fide Need, Oral Family Arrangement, and Subsequent Events
The appellant's evidence was that at the time of filing the suit, flat Nos.5 and 6 ,the only flats available to the landlord family , were occupied by her parents. Her father died on 24 February 1994, after the suit was filed. She had shifted to Mumbai in 1996 during the pendency of the suit and temporarily resided with her mother in flat Nos.5 and 6, having no other accommodation in the city. Her husband had been posted at various Air Force stations and took premature retirement in March 2001. Her two sons were studying. Her brother Gerard, residing in Canada, was expected to return and had been insisting she vacate the flat.
The Court held that the appellant's temporary co-occupation of flat Nos.5 and 6 during the pendency of the suit could not negate her bona fide need for the Suit Premises. Those flats were insufficient to accommodate the appellant's family and those of her brothers, particularly in light of the family arrangement. The Court also held that a tenant cannot dictate to the landlord the suitability of the tenanted premises or insist that the landlord utilise some other property.
On the oral family arrangement, the Court held that a family arrangement can be entered into by way of an unregistered oral agreement and such settlements are enforced by courts under special equity principles, citing Kale & Ors. v. Deputy Director of Consolidation & Ors., (1976) 3 SCC 119, and Hari Shankar Singhania & Ors. v. Gaur Hari Singhania & Ors., (2006) 4 SCC 658.
The appellant was entitled to rely upon the oral family arrangement deposed in her affidavit even in the absence of a decree of partition between herself and her siblings, as it represented a subsequent development.
On subsequent events generally, the Court cited Justice Krishna Iyer's observation in Pasupuleti Venkateswarlu v. The Motor & General Traders, (1975) 1 SCC 770, and a coordinate bench's recent reiteration in Vinay Raghunath Deshmukh v. Natwarlal Shamji Gada & Anr., 2026 INSC 416, that a court can and in many cases must take cautious cognisance of events and developments subsequent to the institution of proceedings, provided the rules of fairness to both sides are scrupulously observed.
Comparative Hardship and the Tenants' Alternative Accommodation
At the time of filing the suit, only flat Nos.5 and 6 were available to the landlord family, which then comprised the appellant, her four adult siblings, their two aged parents, and the spouses and children of each sibling. The remaining four flats, including the Suit Premises, were occupied by tenants.
On the tenants' side, Defendant No.1 owned flat No. F-129 in Madhuvana Society, Andheri. Defendant No.2 owned flat No. D-82 in the same society since 1976, initially occupied by Defendant No.3. During the pendency of the suit in 2002, Defendant No.2 sold that flat for Rs.12 lakhs and the proceeds were used to purchase another flat in Borivali, which Defendant No.3 occupied.
The Court found that Defendant No.3 was and continued to be in occupation of one of the flats owned by the defendants, and no evidence was led to show that Defendant Nos.1 and 2 could not reside with Defendant No.3. The respondents' reliance on B.R. Mehta v. Atma Devi, (1987) 4 SCC 183 — that alternate accommodation under the Rent Act is effective only if the tenant himself has acquired or been allotted suitable premises was rejected on the facts.
The Court found that Defendant No.2's sale of his alternative accommodation during the pendency of the suit indicated the sale was effected only to avoid a decree of eviction. By the time of the Supreme Court's consideration, the original contesting tenants, Defendant Nos.1 and 2, were no longer alive. Defendant No.2 had remained unmarried and left no heirs.
Respondent No.1, son of Defendant No.1, resided and worked in Pune, where he owned property, while his wife resided in Norway. The Court found that his assertion that he might apply for a better job in Mumbai if affordable accommodation were available could not be accepted, given his stable employment with L&T Infotech in Pune and his property there.
The appellant, by contrast, continued to have no accommodation in Mumbai, and her brothers had taken exclusive control of flat Nos.5 and 6, rendering them unavailable for her use. The Court held that greater hardship would be caused to the appellant if eviction were denied.
Order
The Supreme Court allowed the appeal. The impugned judgment and order dated 23 June 2025 passed by the High Court of Bombay in Civil Revision Application No. 308 of 2019 was set aside. The judgment and decree dated 14 September 2007 passed by the Small Causes Court at Bombay in Rent and Eviction Suit No. 411/861 of 1996 was restored. Pending applications, if any, were disposed of.