1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. SUIT NO.3572 OF 2001 M/s.Rachana Builders Pvt. Ltd. ...Plaintiff. Vs. Miss Daisy Soli Batliboi. ...Defendant. .... Mr. R. C. Shah with Mr. P.N. Ganwani i/b. Mr. R.M. Vanoo and Mr. A.J. Uniyal for the Plaintiff. None for the Defendant. Mr. K.M. Rane, representative of the Court Receiver present. ..... CORAM :DR.D.Y.CHANDRACHUD, J. March 25, 2008. P.C.: The suit has been placed on Board for an ex-parte decree as an undefended suit. Learned Counsel appearing for the Plaintiff has stated that an affidavit of service dated 16th September 2007 has been duly filed. 2. Prior to 1977, one Soli Ratanshaw Batliboi was the owner of a Bungalow at Bandra, bearing Municipal No.33, Hill Road, Bandra (West), Mumbai-400 050, (“the suit property”). In June 1977, Soli 2 Ratanshaw Batliboi died intestate leaving behind his widow, Rati Soli Batliboi and his daughter who is the Defendant to the suit. In 1980, Rati Soli Batliboi filed a petition for Letters of Administration in this Court which was contested by her daughter, the Defendant herein. The petition was converted into a suit, being Suit 35 of 1980. In 1980, the Defendant also filed a petition for probate of the will of her deceased father in this Court which was contested by her mother and converted into Suit 3 of 1981. In 1984, in Notice of Motion 508 of 1984, this Court appointed the Court Receiver as Receiver of the suit property. By a judgment dated 27th February 1984, passed in both the suits, the suit of the Defendant was dismissed. It was held that the deceased died intestate and his widow, Rati Soli Batliboi was granted letters of Administration by this Court. 3. On 21st September 1984, two appeals, being Appeal Nos.727 and 728 of 1984 filed by the Defendant challenging the dismissal of her suit, were dismissed by this Court. The Defendant filed a Special Leave Petition (SLP (Civil) No.3570-71 of 1985) in the Supreme Court, which was dismissed on 2nd April 1985. 3 4. On 2nd May 1986, this Court in another Notice of Motion, (NM 2133 of 1985) taken out by Rati Soli Batliboi directed the Court Receiver to sell the suit property on an 'as is where is' basis and directed that tenders be invited from the general public. On 10th September 1987, this Court ordered and directed the sale of the suit property by private treaty. 5. On 26th November 1987, the Court Receiver issued terms and conditions of sale by private treaty and invited offers. The Plaintiff gave an offer at Rs.32 lakhs to the Court Receiver. The Court Receiver placed the same before the Court. On 17th December 1987, Hon'ble Mr.Justice S.N. Variava (as His Lordship then was) confirmed the sale of the suit property in favour of the Plaintiff. On 1st February 1988, a letter was issued by the Court Receiver informing the status of the suit property indicating that portions of the suit property were occupied by (i) Adi Pestonji who was occupying 250 sq. feet area and a trespasser suit against him was pending; (ii) Anthony Mathew who was occupying 63 sq.feet and against him there was a decree for 4 possession and an obstructionist notice was taken out against one Smita Dhanuka; (iii) A shop admeasuring 50 sq. feet was vacant; and (iv) The rest of the premises were occupied by Mrs.Homai S. Batliboi, the sister of the late Soli Ratanshaw Batliboi. On 25th January 1988, a letter was issued by the Court Receiver recording the handing over of possession of the suit property to the Plaintiff. 6. On 8th January 1988, Form 37-1 was submitted and a certificate was issued by the Appropriate Authority under the Income Tax Act, 1961, granting an NOC for transferring the suit property in favour of the Plaintiff. 7. The widow of the deceased, Rati Soli Batliboi was entitled to a 75% share and the Defendant was entitled to a 25% share in the properties left behind by the deceased. Accordingly, the sale proceeds of the suit property are stated to have been distributed between the said Rati S. Batliboi and the Defendant. 8. In 1987, a paternal aunt of the Defendant, one Homai 5 Batliboi filed a suit claiming to be a tenant of her deceased brother Soli Ratanshaw in a substantial portion of the suit property stating that the Defendant was a licencee prior to the year 1972. (RAD Suit No.5016 of 1987 was filed in the Small Causes Court, Bombay). The Defendant claimed to be a sub tenant of the said Homai Batliboi in the suit property. The Plaintiff as purchaser of the suit property was subsequently impleaded as the Defendant therein. In 1988, the Defendant started claiming a right of residence in the suit property. 9. On 2nd February 1988, the Plaintiff filed a suit against the Defendant in the City Civil Court, at Bombay (being S.C. Suit No.834 of 1988) seeking declaration that the Defendant has no interest in the suit property or in any portion thereof. In 1988, the Defendant filed a separate suit (being RAD Suit No.656 of 1988) claiming to be a licencee of her paternal aunt Homai Batliboi from the year 1972. 10. On 17th October 1989, the Defendant unconditionally withdrew RAD Suit No.656 of 1988. On the same day, the Defendant filed another declaratory suit (RAD Suit 40005 of 1989) against the 6 Plaintiff and her mother Rati Soli Batliboi claiming that her aunt Homai Batliboi was the tenant in the suit property and she was also entitled to tenancy rights after her death under Section 5(11)(c ) of the Bombay Rent Act. 11. On 12th July 1989, RAD Suit No.5016 of 1987 was dismissed for want of prosecution. 12. On 4th September 1989, the Defendant's aunt Homai Batliboi expired. On 15th September 1989, the Defendant is alleged to have taken illegal and forcible possession of the portion of the suit property in occupation of the deceased Homai Batliboi. The Defendant continues to be in occupation till date. The said portion of the suit property consisting of four rooms and a kitchen with a common passage and common use of the toilet/bathroom has been described as the “suit premises” in the Plaint. 13. In 1989, the Defendant took out Application No.7111 of 1989 for setting aside the dismissal order of RAD Suit No.5016 of 7 1987 and also for transposing herself as the Plaintiff therein. The application was dismissed by an order dated 16th December 1991. In 1992, the Defendant preferred an appeal (being Appeal No.67 of 1992) before the Appellate Bench of the Small Causes Court which was dismissed. On 20th August 1993, the Writ Petition preferred by the Defendant against the dismissal of Appeal No.67 of 1992 was dismissed. 14. On 30th July 2001, an order was passed by City Civil Court, returning the Plaint in SC Suit No.824 of 1988 instituted by the Plaintiff to the proper Court whilst allowing amendments for seeking possession against the Defendant and accordingly, the suit to which these proceedings relate (3572 of 2001) was filed in this Court. On 14th November 2003, the Defendant filed another suit against the Plaintiff claiming ownership of the suit property in this Court (Suit No.3916 of 2003) inter alia on the ground that no conveyance of the suit property has been executed in favour of the Plaintiff. The said suit is pending. 8 15. On 12th March 2004, RAD Suit No.4005 of 1989 filed by the Defendant claiming sub-tenancy before the Small Causes Court, Bombay was dismissed for want of prosecution. No further steps are stated to have been taken by the Defendant in the said suit. 16. On 24th August 2006, a Deed of Conveyance was executed between the Plaintiff and the Court Receiver registering and conveying the suit property in favour of the Plaintiff. On 14th December 2006, a Written Statement was filed by the Plaintiff in the Defendant's suit (3916 of 2003). On 17th October 2007, the present suit was placed before the Prothonotary & Senior Master for directions. No Written Statement was filed nor any appearance was recorded on behalf of the Defendant. Accordingly, the suit has been placed in the list of undefended suits for an ex-parte decree. 17. On 15th January 2008, the Plaintiff's Advocates are stated to have addressed a letter to the Defendant informing of a change in the Advocate for the Plaintiff as also the status of the above suit. 9 18. The Defendant has not appeared despite service of the Writ of Summons. The Plaintiff seeks a declaration that the Defendant has no right, title and interest in the suit property and a decree against the Defendant to hand over to the Plaintiff quiet, vacant and peaceful possession. A decree for mesne profits has also been sought. 19. The Plaintiff has relied upon an affidavit in lieu of Examination-in-Chief and a list of dates tendered at the Bar by Learned Counsel appearing for the Plaintiff. The documentary evidence which has been placed before the Court establishes that the Plaintiff has obtained the right, title and interest in respect of the property in dispute in pursuance of a Deed of Conveyance executed by the Court Receiver on 24th August 2000. The Deed of Conveyance has been duly registered. The sale in favour of the Plaintiff was confirmed by an order dated 17th December 1987 passed by the Hon'ble Mr.Justice S.N. Variava (as His Lordship then was). The Defendant has failed to establish any right, title or interest in respect of the property and the suit instituted before the Small Causes Court has been dismissed for want of prosecution. 10 20. Besides tendering an affidavit in lieu of the Examination-in- Chief, the Plaintiff has also placed a compilation of the certified copies of the relevant documentary material on the record. 21. The suit accordingly shall stand decreed in terms of prayer clauses (a) and (a-1). There shall be a decree for mesne profits. The suit shall stand referred to the Commissioner for making enquiry into the mesne profits. .....