1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 530 OF 2009 Smt.Dulari Devi & Others ..Appellants versus The Bombay Housing & Area Development Board & Ors. ..Respondents Mr.K.K.V.Kurup for the Appellant Mr. S.P.Thorat for the Respondent No.1 Mr.P.M.Arjunwadkar for the Respondent Nos.2A and 2B. CORAM : R.Y.GANOO, J. DATE : 8TH JUNE, 2009. P.C: 1. One Shivnath Passi instituted S.C.Suit No. 8330/1988 in the City Civil Court at Bombay concerning tenament No.5, Chwal No.2, Mithawala Chawl, Sayani Road, Dadar, Bombay, contending that after the death of Puddan, his father he was in exclusive occupation of the said Room No. 5. (Hereinafter referred to as the Suit Premises) and that one person by name Vishwanath, Original defendant No.2 had no 2 concern with the suit premises as according to the original plaintiff said Vishwanath had executed an affidavit that he had no concern with the suit premises. It is seen that during the pendency of the suit, said Shivnath and Vishwanath expired and that is how the present appellants are shown as heirs of Shivnath Passi and respondent Nos.2A and 2B are shown as the heirs of Vishwanath Passi. The learned Judge of City Civil Court granted opportunity to the parties to the suit for giving evidence and at the end of the trial the learned Judge by judgment and decree dated 12.3.2008 dismissed the suit. However, he directed respondent No.1- MHADA to pass an Order as regards the allotment of tenement in the newly constructed building namely to Shivnath Passi and Vishwanath Passi who were the occupants of the suit premises prior to it being taken up for redevelopment. 3 2. I have heard learned advocates on both the sides. As of today, the newly constructed premises are ready for occupation and respondent NO.1 is to make the allotment. After having heard learned Advocates on both the sides, I am inclined to confirm the Order passed by the learned Judge that Shivnath Passi and Vishwanath Passi were the occupants of the suit premises. The stand taken by the Appellants that Vishwanath Passi had no concern with the suit premises has been rightly rejected by the learned trial Judge as the appellants have failed to prove their case that Vishwanath Passi had indicated that he had no concerned with the suit premises. Once the finding that Shivnath Passi and Vishwanath Passi are the occupants is confirmed, then next step will be, the respondent No.1 will have to issue letter of Allotment in favour of Shivnath Passi and Vishwanath Passi. The record goes to show that 4 Shivnath Passi and Vishwanath Passi have expired and therefore the appellants and respondent Nos. 2A and 2B will have now to be treated as occupants as they will substitute themselves in place of Shivnath Passi and Vishwanath Passi in their respective capacity as heirs of Shivnath Passi and Vishwanath Passi. The fact that the appellants are heirs of Shivnath Passi and the respondent Nos.2A and 2B are the heirs of Vishwanath Passi is not in dispute. If this be so, the First Appeal will have to be disposed of so as to see that the respondent No.1 issues letter of Allotment in favour of the present appellants as well as respondent Nos.2A and 2B. 3. Learned Counsel Mr. Thorat, appearing on behalf of respondent No.1 tendered in the Court a letter by which MHADA had called upon the appellants to remain present before the concerned Officer for the purpose of allotment 5 of tenament. Learned Counsel Mr. Kurup upon instructions makes a statement that appellants had not received such a letter. Learned Advocate Mr. Thorat expressed fear that it is quite possible that MHADA may have alloted the tenament which was otherwise reserved in lieu of the tenament and therefore he is unable to make a positive statement. Since the suit was pending before the learned Judge of City Civil Court and since one tenament was taken charge by MHADA either from Shivnath Passi or Vishwanath Passi, it was absolutely necessary for MHADA to reserve one tenament in the building for being alloted to the person who would be entitled to receive the new tenament. In such circumstances, it is not possible for MHADA to say that the tenament may have been alloted to some other person. If at all such allotment is made behind the back of the appellants or respondents 2A and 2B, such allotment will have 6 to be revoked and the respondent No.1 will have to allot the newly constructed flat in compliance with this Order. 4. In the circumstances mentioned aforesaid, the First Appeal is disposed of by passing the following Order: ORDER i. The fact that Shivnath Passi and Vishwanath Passi were the occupants of the suit tenament, Room No.5 is confirmed. Now that Shivnath Passi has expired and his heirs namely the appellants are on record, as also Vishwanath Passi has expired and his heirs namely Respondent Nos.2A and 2B are on record, the respondent No.1 shall within one month from today pass an Order so as to allot a tenament in the newly constructed building in the name of appellants as well as respondent Nos.2A and 2B and inform the 7 appellants and respondent Nos.2A and 2B accordingly for taking further action in the matter. The appellants as well as the respondent Nos.2A and 2B shall inform respondent No.1, the address on which the communication regarding allotment can be sent. ii.In the facts and circumstances of the case, there shall be no Order as to costs. iii.The appellants shall serve authenticated copy of this Order upon the respondent No.1 for taking further action in terms of this Order. iv.In view of disposal of this appeal, Civil Application No.3101 of 2008 does not survive and the same is disposed of with no Order as to costs. (R.Y.Ganoo, J.)