1 sg IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE CIVIL JURISDICTION APPEAL FROM ORDER NO.23 OF 2011 Smita Harihar Parelkar & Ors. ... Appellants Versus Vinay Manohar Parelkar & Anr. ... Respondents WITH APPEAL FROM ORDER NO.94 OF 2011 WITH CIVIL APPLICATION NO.147 OF 2011 IN APPEAL FROM ORDER NO.94 OF 2011 Vinay Manohar Parelkar & Ors. ... Appellant Versus Paritosh Harihar Parelkar & Ors. ... Respondents D. Madon a/w Sanjay Jain a/w Nishant Shashidharan a/w Mritunjay Barai i/b L J Law for the appellants in A.O. 23/11 & Advocate Varsha Palav i/b THE LAUREATE for Respondent in in A.O. 23/11 & for appellant in A.O. 94/2011. CORAM : SMT. ROSHAN DALVI, J. DATED : 30TH AUGUST, 2011. P.C. 1. One Shankarrao owned the suit building. His wife died after him. After the death of Shankarrao and his wife, his four sons succeeded on intestacy. They have a one fourth share each. The plaintiff claims through one of the sons. The defendants claim through the other. No suit for administration of the estate of 2 Shankarrao and of his wife Sitabai has been filed. The property continued in the joint possession of the parties. The plaintiff claims half share of another son through his wife Sandhya who was the plaintiff’s Paternal Aunt. This is claimed through a gift deed. Sandhya claimed 10% of the estate of Shankarrao, the other 10% having gone to Shankarrao’s wife Sitabai upon the death of his son Yeshwant. The plaintiff, therefore, would get on intestacy 25% of the estate and upon gift 10% of the estate. The plaintiff has not sued for partition of his 35% share in the suit building. 2. The parties, therefore, lived as co-owners in the building. They were in possession of an undivided share. 3. The plaintiff's suit was for protection of his possession in the share in the property gifted by his Aunt Sandhya to him. His Aunt Sandhya also did not have a specified share in the property which she gifted. She, therefore, gifted a part of the property which was otherwise undivided. 4. Since the plaintiff has not sued for partition but claims possession, the plaintiff must show his actual possession. The plaintiff has sought to show that through his Paternal Aunt Sandhya. This is shown through certain telephone bills from about June, 2008. The plaintiff has shown the ration card of Sandhya issued in February, 2009. The ration card shows the name of the son of the plaintiff added in the ration card in October, 2010. The suit has been filed on 14th December, 2010. The plaintiff has also sought to show one photograph of two Aunts of the plaintiffs through the two 3 branches in one of the rooms. It can not be deciphered which is that room in the photograph. Photographs of two Aunts standing in a room does not show juridical possession of the plaintiff. 5. The learned Judge has observed and it stands to reason that Aunt Sandhya was admittedly occupying the bed room in the suit premises till her death. The fact that she lived in the suit premises is shown from the ration card. However, the learned Judge has considered the gift of the entire undivided share which has not been partitioned. The learned Judge has also considered that the plaintiff is occupying the third floor exclusively. Without seeing the overt act of possession, the learned Judge has concluded that the plaintiff be allowed to occupy the suit premises. That aspect appears to be erroneous. The plaintiff’s actual possession is not shown in the specified portion of the building which is the suit premises as claimed by the plaintiff. The execution of the gift deed itself shall have to be proved. Hence, the plaintiff can not get any right to injunct the other family members therein before the plaintiff sues for partition and proves the gift deed. 6. Consequently, the impugned order is required to be set aside. The plaintiff may show on evidence his possession which is not shown prima-facie at present. 7. Appeal from Order is disposed of accordingly. (SMT. ROSHAN DALVI, J.)