: 1 : 4194-11-caf=.sxw UJ IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO. 4194 OF 2011 IN FIRST APPEAL NO. 2291 OF 2007 Miss Vinod Kumari Dhawan .. Applicant v/s. Mela Ram Dhawan & Ors. .. Respondents ......... Ms. Mini Mathew i/b Mr. Prakash Mahadik for the applicant Ms. Poonam Mittal for respondent no.1B ......... CORAM : A.V. NIRGUDE, J DATE : 21st DECEMBER,2011. P.C. : 1. The facts leading to this application in short can be narrated as under. 2. The applicant is the appellant in this appeal. The original respondent plaintiff secured decree of possession against the appellant. The suit property is a residential flat. During the pendency of the suit, both the original respondent (plaintiff) and the appellant were staying in the suit flat. Due to the impugned decree, the appellant was under obligation to leave the flat and go elsewhere. The appellant is unmarried daughter of the original : 2 : 4194-11-caf=.sxw respondent plaintiff. When the appeal was filed in 2007, the original respondent, the father of the appellant was alive but he was very old and bedridden. Even the appellant was about 62 years old. By that time, she had retired. Earlier she was working as primary school teacher. The appellant at interim stage in 2007 secured following order dated 17th October, 2007 from this Court by way of stay to the execution of the decree. The order reads as under. “Till the final hearing of the present appeal, the appellant shall leave the suit premises at all before 9.00 a.m. and is entitled to return in the suit premises on and after 7.00 p.m. each day and occupy the room and use all the facilities including kitchen and bathroom.” 3. In view of this order, the appellant could reside in the suit flat but was prevented from using / entering the flat between 9.00 a.m. to 7.00 p.m. It seems, this arrangement continued till the original respondent died. His death occurred on 20th July, 2011. Due to his death, the earlier order preventing the appellant entering in the suit flat is virtually come to an end and now the appellant would use the suit flat all through out the day. 4. The suit flat is situated in a very old and dilapidated building. Since 2007, there was proposal of redevelopment of the entire building. It seems : 3 : 4194-11-caf=.sxw that now the developer has proposed demolition of the building. The respondent no.1B, appellant’s brother is hostile and is likely to prevent the appellant from entering the tenament in newly constructed building. She also apprehended that because of his objection, the developer would not make arrangement for alternate accommodation etc. I think her apprehension is misplaced. In view of the order passed on 17th October, 2007 and in view of the fact that the original respondent is dead and gone, the appellant alone would be able to use the flat exclusively till the disposal of the appeal. So the appellant is also entitled to use the tenament that would be alloted to the original respondent in lieu of the old tenament. She would also be entitled to get alternate accommodation from developer or the compensation in lieu thereof. 5. The respondent no. 1B has filed an affidavit saying that during the lifetime of the original respondent, he had made a Will and bequeathed the suit flat to his two grand sons namely Shivam Yashpal Dhawan and Sagar Yashpal Dhawan. He also said that they have applied for probate of the Will and the same is pending. He also stated that the suit flat or the new tenament offered in lieu of the same is urgently required for accommodating the legatee grand sons. On this premise, he is trying to oppose this application. : 4 : 4194-11-caf=.sxw 6. I am afraid that this grounds would not prevent me from passing an order which is really a continuation of earlier order on 17th October, 2007. If at all, the probate is secured, the grand sons of the original respondent would be able to become party of this appeal and since they were not actually occupying the suit flat on the day of the impugned decree, they will have to wait for getting the possession of the suit flat or new tenament till the appeal is decided finally. 7. There is one more angle of this case. The occupant of this flat is under obligation to pay certain amount to the society. As an interim arrangement, I am inclined to direct the appellant to clear such arrears for the time being and then may make an independent application for recovering the same from either the respondent no.1B or any other person who would became party to this appeal. ORDER (i) The appellant shall reside in the suit flat and shall be entitled to occupy new tenament in newly constructed building. In the meantime, she alone will be entitled alternate accommodation or compensation offered by the developer. (A.V. NIRGUDE, J.)