1 W.P. 2187.2004 14.10.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2187 OF 2004 1. Smt. Rajnibai w/o Shridhar Phadke] Age : 71 years, ] Occ.: Household ] ] 2 Smt. Rajendra Shridhar Phadke ] (Since deceased through his heirs ] & LRs. ) ] ] 2A. Smt. Bharati Rajendra Phadke ] Petitioners Age : 35 years, ] (Ori. defendants) Occ.: Household ] ] 2B. Shri Kunal Rajendra Phadke ] Age : 13 years, ] Occ.: Education, a minor by ] guardian mother Mrs. Bharati ] Rajendra Phadke, Age: 35 yrs. ] Occ.: Household ] ] All residing at 333, Vishwas Bungalow,] Narayan Peth, Pune - 411 030, ] Vs. Shri Shivram alias Bal Keshav Phadke] Age : 75 yrs., Occ. Pensioner ] Respondent Residing at 333, Narayan Peth, ] (Ori. plaintiff) Pune - 411 030 ] Mr. S.R. Page, Advocate for petitioner. Mr. N.R. Bubna, Advocate for respondent. 2 W.P. 2187.2004 14.10.2010 Coram : SMT. R.P. SONDURBALDOTA, J. Date : 14th October, 2010 P.C. 1. This petition filed under Article 227, Constitution of India seeks to challenge eviction d15ecree dated 17th April 2003 passed by the Court of Small Causes Court, Pune in Civil Suit No.677 of 1999 and the judgment and order dated 10th December 2003 passed by District Court, Pune in Civil Appeal No.358 of 2003 preferred by the petitioners from the eviction decree. 2. The facts of the case giving rise to the present petition are as follows : The husband of petitioner no.1 is the sister-in-law (i.e. brother’s wife of the respondent), petitioner no.2 is the daughter-in- law and petitioner no.3 is the grand-son of petitioner no.1. Petitioner No.2 is also a widow. The premises in question are three rooms on the ground floor of the property at house no.333, Vishwas Bungalow, Narayan Peth, Pune - 411 030, that are in occupation of the petitioners. On 28th November 1978, the mother of the respondent and mother-in-law of petitioner no.1 made a will in 3 W.P. 2187.2004 14.10.2010 respect of her estate inclusive of property at Vishwas Bungalow. Under the will, she bequeathed the property to the respondent. The mother died on 29th March 1981. In the same year, the respondent filed the application bearing No.299 of 1981 in the court of Civil Judge, Senior Division seeking letters of administration in respect of the property of mother. As the application was contested by the petitioners, in the year 1984, it was converted into Special Civil Suit No.50 of 1984. After completion of trial in the suit, by the order dated 26th February 1997, letters of administration of the estate as per the will came to be granted by the court to the respondent. He, then sent Advocate’s notice dated 9th August 1999 contending that the petitioners had been occupying the premises in their possession as his gratuitous licensees. He terminated the license w.e.f. 31st August 1999 and called upon the petitioners to vacate the premises in their occupation. The petitioners sent their reply dated 26th August 1999 refusing to hand over possession of the premises to the respondent. Therefore, on 15th November 1999, the respondent filed Civil Suit No.677 of 1999 in the Court of Small Causes, at 4 W.P. 2187.2004 14.10.2010 Pune. The suit was decreed by the judgment and decree dated 17th April 2003. This decree was carried in appeal by the petitioners by preferring Civil Appeal No.358 of 2003. The appeal also came to be dismissed by the judgment and order dated 10th December 2003. Thereafter the present petition is filed by the petitioners. 2. The petitioners had challenged the order of grant of letters of administration as per the will to the respondent by filing the Appeal No.155 of 1990 in this Court. That appeal was rejected by the order dated 26th February 1997 holding that the respondent is entitled for the letters of administration on the basis of the registered will. The matter thereafter was not carried any further by the petitioners. Thus, the right of ownership of the respondent in respect of the entire property of Vishwas bungalow stands accepted by the petitioners. In that circumstance, they have no right whatsoever to continue to occupy three rooms on the ground floor in their possession, once the respondent then issued notice dated 9th August 1999. The present petition therefore is without any merit whatsoever and is liable to be 5 W.P. 2187.2004 14.10.2010 dismissed. However, the learned counsel for the petitioners makes a request that the petitioners be permitted to continue to occupy the premises for a reasonable period. He submits that petitioner no.3 is a student of 2nd year B.Sc. in S.P. College, Pune. The premises in question being closer to his college, it would be convenient for the petitioners if they are allowed to occupy the premises atleast until petitioner no.3 completes his education i.e. until 31st May 2012. Mr. Bubna, learned counsel for the respondent objects to the request submitting that the petitioners have already purchased a flat in the year 2008, which has been kept vacant by them. He also submits that the respondent has been agitating for his rights since the year 1981 and that it has high time that he enjoys fruits of the litigation. It is undisputed position which is also borne out by the record that the building of Vishwas Bungalow consists of ground plus two upper floors with six rooms on each floor. The petitioners are in occupation of three rooms on the ground floor together admeasuring about 400 sq. ft. The respondent is in occupation of five rooms on 6 W.P. 2187.2004 14.10.2010 the second floor. His family consists only of himself and his wife, his son staying separately. The first floor of bungalow is in occupation of two tenants. The record does not indicate about the occupation of three rooms on the ground floor and one room on the second floor. However, considering the fact that the family of the respondent consists only of himself and his wife and he is in occupation of five rooms, on the second floor, with probable availability of three more rooms on the ground floor and sixth room on the 2nd floor, the concession sought for by the petitioners who are the family members of the respondent can be granted. However, the petitioners cannot be allowed to continue to occupy the premises free of charge. They need pay atleast some token compensation to the respondent for extension of their occupation till 31st May 2012. Taking overall view of the matter, in the opinion of this court, the interest of justice would be served with the following order : O R D E R 1 The petition is dismissed with no order as to costs. 7 W.P. 2187.2004 14.10.2010 2. Rule is discharged. 3. The petitioners are permitted to occupy the premises in question until 31st May 2012 on their paying a sum of Rs.2,000/- per month to the respondent on/or before 10th day of each month, starting from November 2010. The petitioners shall also execute a written usual undertaking that they would vacate the premises in question on 31st May 2012. The usual undertaking be filed within two weeks from today. In case the petitioners failed to file the undertaking within the time granted, the part of the order granting concession to the petitioners to occupy the premises until 31st May 2012 will stand vacated. The order of extension will also stands vacated in the event the petitioners commit any two defaults in payment of monthly compensation to the respondent. (SMT. R.P. SONDURBALDOTA, J) (SMT. R.P. SONDURBALDOTA, J)