IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO.259 OF 1997 Hosang Minochar Pavri ..Plaintiff Vs. Rohinton Tata ..Defendant Mr. Kunal Cheema i/b Mr. Y.M.Chandhani for the Plaintiff None for the Defendant CORAM: DR. D.Y. CHANDRACHUD, J. DATE: 1st September , 2009 P.C. : 1. The suit has been instituted for a declaration that the Defendant is a trespasser in respect of residential premises situate at 4, Karani Building, Ground Floor, Plot No.650, Firdoshi Road, Dadar Parsee Colony, Dadar, Mumbai 400018, and for a mandatory order and injunction restraining the Defendant from entering into or remaining upon the premises. 2. The suit premises which form the subject matter of the suit belong to a Trust. The Plaintiff’s brother was, during his life time, a tenant of the Trust. The Plaintiff’s brother died on 21st April 1996. The case of the Plaintiff is that, he was residing with his brother in the suit premises at the time of his death and he continued to reside in the premises until 21st September 1996. The Plaintiff alleges that on 21st April 1996 when he came back to the premises at 6.00 p.m., his brother did not answer the door. The fire brigade was called. On gaining entry to the flat, the personnel of the fire brigade found the brother of the Plaintiff lying unconscious on the floor. The Plaintiff’s brother was moved to the KEM Hospital, where he was declared dead on admission. The Plaintiff has produced copies of two rent receipts dated 5th June 1996, which bear the name of his brother. According to the Plaintiff , even after his brother died, he has paid the rent for the period from July to December 1996 to the Trust and the rent receipts continued to be issued in the name of the deceased tenant. The Plaintiff claims that, he had possession of the keys and that he had locked the premises on 21st September 1996, before he left for Udwada, for performing religious rites. On return to Mumbai on 22nd September 1996, the Plaintiff alleges that he found that the lock of the premises was broken. Upon inquiry, the Plaintiff was informed by the neighbors that the premises had been broken into at about 4.00 p.m. on 22nd September 1996. The Plaintiff alleges that he was threatened by the occupant who had gained entry to the premises, upon which he proceeded to the Matunga Police Station to lodge a complaint. According to the Plaintiff, he was asked by the office in charge of the police station to contact the Municipal Corporator of the area and to settle the matter with him. The Plaintiff learnt upon inquiries that the Defendant had forcibly entered into possession of the premises. According to the Plaintiff, the Defendant was, as a matter of fact a resident of Laxmi Ratan Co-operative Housing Society, 4 Bungalows, Andheri, Mumbai and had forcibly gained entry into the premises. Copies of the election rolls pertaining to the Defendant had been produced. The Plaintiff lodged a complaint with the Matunga Police Station, and after three months, an FIR was registered on 1st December 1996, under section 341, 454 and 380 of the Criminal Procedure Code, 1908, against the Defendant. 3. The Plaintiff has averred that, the Defendant is neither an heir nor legal representative of the deceased tenant. The Defendant has no relationaship with the deceased either by blood or otherwise. The Plaintiff has stated that, by the last will and Testament of his deceased brother, the house in Mumbai together with the furniture and fixtures was to be used by the Plaintiff and another brother. Letters of Administration with the Will annexed, have been granted to the Plaintiff on 20th May 1998, in Testamentary Petition No.898 of 1996. The Defendant attempted to obtain a ration card and electricity meter. This was opposed by the Plaintiff’s Advocate by addressing letters to the authorities on or about 22nd November 1996. 4. The suit has been instituted on the foundation that the Defendant is a trespasser. 5. The Defendant has been served with the Writ of Summons. At the interlocutory stage, the Defendant had entered appearance. By an order dated 17th April 1997, this court appointed the Court Receiver as Receiver of the premises. The Receiver was directed to appoint the Defendant as his agent on such terms as to royalty as the Receiver may deem fit. 6. No Written Statement has been filed by the Defendant. The suit has accordingly been listed as an undefended suit for an exparte decree. 7. The averments contained in the Plaint have not been controverted. The Plaintiff has filed an Affidavit of evidence and has verified the correctness of what is stated therein. A compilation of documents has been filed. The Compilation of documents includes i) Original rent receipts in the name of the deceased tenant for the period between July to December 1996; ii) Photocopies of the extract of the election register 1995, pertaining to the Defendant; iii) A certified copy of the Letters of Administration granted to the Plaintiff; iv) The letters addressed by the Plaintiff’s Advocate to the rationing office and to the B.E.S.T undertaking; v) Photocopies of the report of the Fire Brigade dated 4th November 1996. 8. The Plaintiff has duly established his claim to the effect that, the Defendant is a trespasser and has no right, title or interest to remain in or upon the premises. The Plaintiff has established that, he resided in the premises and was wrongfully dispossessed from the premises on 21st September 1996. The suit shall accordingly stand decreed in terms of prayer clauses (a) and (c). The Court Receiver who was appointed as Receiver by the order of this Court dated 17th April 2009, shall continue to act as Receiver in execution. The Plaintiff will be entitled to the costs of the suit. (Dr. D.Y.Chandrachud, J)