1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO.8297 OF 2008 Narayan Ramnath Wagle ..Petitioner. V/s. Samir Shyamsunder Thakre & Anr. ..Respondents. Mr.V.A.Thorat, Sr.Counsel i/b. Mr.Rohit A. Vyas for petitioner. Mr.Abhay Abhyankar, Sr.Counsel i/b. M/s. Shaunak Satpute & Co. for Respondents. CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J CORAM: A.M.KHANWILKAR,J DATE : FEBRUARY 13, 2009. DATE : FEBRUARY 13, 2009. DATE : FEBRUARY 13, 2009. P.C. : P.C. : P.C. : 1. Heard Counsel for the parties. 2. Essentially two points have been raised before this Court. The first is that the date, on which the suit was filed, the ownership of the Respondent/Plaintiff was in doubt. In that, proceedings were pending before the High Court, wherein by way of interim order, the Court had permitted the sister of the Respondent to collect the rent in respect of the suit premises from the Petitioner/tenant. That however, would make no difference to the question of ownership of the Respondent, who has succeeded to the property in 2 terms of the Trust Deed, whereunder he has been declared as sole beneficiary and absolute owner thereof. The argument that Respondent had filed suit in this Court for declaration that he is the sole owner of the suit property does not mean that he was not owner of the property. The ownership of the Respondent has been established from the documents, which are already proved in evidence in the present suit. The argument of the Petitioner that it is not open to the Rent Court to consider the issue of title, is also without any substance. The Courts below have referred to those documents only to reassure the claim of the Respondent that he is the owner, as claimed by him. Moreover, the issue of ownership has been answered in favour of the Respondent in the proceedings before the High Court, which has been relied in the present trial. It is not as if the Rent Court has decided the issue of title on its own, as is sought to be contended. 3. It was then argued that the trial Court has passed untenable order thereby granting decree of possession in favour of the Respondent, subject to the outcome of the proceedings pending in the High Court. There is no substance even in this submission. In the fact situation of the present 3 case and the nature of stand taken by the Petitioner in the Written Statement, out of abundant precaution the Rent Court has passed decree of eviction, which can be proceeded only after the termination of title proceedings pending at the instance of the respondent and his sister. In my opinion, there is no infirmity in the view taken by the Court below or its approach in the fact situation of the present case. 4. Counsel for the Petitioner would then contend that from the circumstances on record, it would appear that the Respondent was only a co-owner, for which reason the Respondent was expected to establish the fact that there was implied or express consent given by the other co-owner. This argument is obviously an argument of desperation. Finding of fact recorded by the two Courts below is that the record produced by the Respondent clearly established that he is the sole owner of the property. Moreso, it is rightly pointed out by the Counsel for the Respondent that no such plea has been taken by the Petitioner in the Written statement or for that matter canvassed before any of the Courts below. 5. In the circumstances, this Petition should fail. The same is dismissed. 4 6. At this stage, Counsel for the Petitioner submits that the execution of decree may be kept in abeyance for a period of 12 weeks from today so as to enable the Petitioner to carry the matter in appeal. There is no difficulty in acceding to this request. However, the Petitioner and all adult members in the family of the Petitioner shall file usual undertaking in this Court within two weeks from today. Besides usual undertaking, it should be expressly mentioned in the proposed affidavit of undertaking that in the event, the Petitioner does not succeed before the Apex Court shall hand over vacant and peaceful possession of the suit premises within 12 weeks or such time, as may be extended by the Apex Court, without requiring the Respondent/landlord to execute the decree. The Petitioner agrees to abide by this condition. That assurance given through the Counsel is accepted. (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J) (A.M.KHANWILKAR,J)