1 fca49.10 ast IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FAMILY COURT APPEAL NO. 49 OF 2010 Mrs.Sushila v. Thakur ....Appellant Vs. Mr.Vasudeo T. Thakur ....Respondent. Mr. H.S.Anand with Smt. Sarita Dande for the appellant. Ms. Indu Varma for the respondent. CORAM:- A.M.KHANWILKAR AND A.A.SAYED, JJ DATED:- JULY 13, 2010 P.C. 1. Heard Counsel for the parties. With the assistance of the Counsel appearing for the respective parties, we have perused the pleadings as well as relevant documents on record. The Court below had opined that the Petitioner/Appellant has failed to establish her right in the suit property. In that view of the matter, it was not open to entertain the relief of simplicitor injunction, as prayed for by the Appellant. Insofar as that view is concerned, it is unexceptionable. To get over this position, Counsel for the Appellant invited our attention to the pleadings as well as evidence of the Appellant. In 2 fca49.10 paragraph-14 of the Petition, it is averred that the suit premises were made available in May, 2003 and thereupon the Petitioner stayed in the suit premises but later on, shifted to Bandra after one month. The Petitioner has reiterated this position in her evidence. However, this assertion has been denied by the Respondent in the reply filed before the Family Court. According to the Respondent, possession of the suit premises was given to him only on 15th May, 2004. The document evidencing handing over possession of the suit premises on of 15th May, 2004 has been proved by the Respondent, which has been marked as Exh. 10. The stand taken by the Respondent therefore, is substantiated by the documentary evidence. However, the Petitioner has failed to substantiate the position that she in fact, stayed in the suit premises in May, 2003, which was the basis on which the Petition for injunction came to be filed against the Respondent. The stand taken by the Petitioner is only her word without being substantiated by any contemporaneous record. Further, the trial Court has also noticed that the Appellant was staying at Bandra and that fact is reinforced from the address furnished in the Petition itself. We therefore, have no hesitation in upholding the view of the trial Court that the Petitioner failed to establish any right in respect of the suit premises. 2. Counsel for the Petitioner invited our attention to the documents at pages 3 fca49.10 111 to 113 of the additional paper book. It is however, fairly conceded that these documents have not been proved in evidence nor formed part of the record before the lower Court. If it is so, we cannot place reliance on these documents at all. 3. The Counsel for the Appellant lastly submitted that in view of Clause III of Development Control Regulation No.33(10), the suit premises ought to be treated as having been jointly allotted to the Appellant and the Respondent. The said clause reads thus: “III. Joint ownership with spouse. -- The reconstructed tenement shall be of the ownership of the hutment-dweller and spouse conjointly, and shall be so entered and be deemed to be so entered in the records of the co-operative housing society, including the share certificates or all other relevant documents.” The argument though attractive clearly overlooks that in the present case, allotment is in favour of the Respondent. The possession letter Exh. 10 reinforces the fact that the allotment is in the name of the Respondent and none else. It is the case of the Respondent that the suit premises were used by his family consisting of mother, father and brother. It is not necessary to elaborate on this aspect. Suffice it to observe that the regulation pressed into service is of 4 fca49.10 no avail to the appellant, considering the fact that the allotment of the suit premises is in the name of the Respondent and not joint allotment, as such. As noticed earlier, the proceedings initiated by the Appellant are only for relief of injunction simplicitor. Unless the Appellant were to seek appropriate declaration, the question of acceding to the prayer for injunction does not arise. Taking any view of the matter, therefore, this appeal is devoid of merits. The same is dismissed. In view of the dismissal of the Appeal companion Civil Application does not survive for consideration. The same is also dismissed. (A.A.SAYED, J) (A.M.KHANWILKAR, J)