1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO. 234 OF 2008 CIVIL REVISION APPLICATION NO. 234 OF 2008 CIVIL REVISION APPLICATION NO. 234 OF 2008 WITH CIVIL APPLICATION NO. 78 OF 2008 Shri Prakash Ranchhoddas ) Rangwala, residing at Kakubhai ) Rangwala Bungalow, 73/A, ) Hirachand Desai Road, ) Ghatkopar (West), Mumbai 400 086)..Appellant (Ord. Defendant No.1D) Versus 1. Pravinkumar Bhimji Karsondas ) 2. Smt. Bhanumati W/o. Bhimji ) Karsondas (since deceased) ) residing at 11, Sangam 2nd floor, ) Plot No.353/16, Vallabh Baug, ) Extensino Lane, Ghatkopar (East), ) Bombay - 77. ) 3. Ranchhoddas Karsondas @ Kakubhai ) K.Rangwala (since deceased by his ) heirs ) 3A. Miss Sarla Ranchhoddas Ashar ) (since deceased) ) 2 3B. Shri Purshottam Ranchhoddas ) Ashar, residing at Bungalow ) D 3/2, Casurine C.H.S. Ltd. ) B.E.S.T. Colony Marg, ) Near BEST Bus Depot, ) Ghatkopar (West), ) Bombay 400 075. ) 3C. Shri Mukesh Ranchhoddas ) residing at Ashar, Kailash Kiran ) Bldg. No.1, Block No.1, Ground Floor) 21, Tilak Road, Ghatkopar (East), ) Bombay - 77. ) 3D Smt. Maltiben MulrajSampati ) residing at Geeta Apartment, ) Block No.6, 1st Floor, Plot ) No.166, Opp. Garodia High School, ) Garodia Nagar, Ghatkopar (East), ) Mumbai 400 077. ) 3E. Smt. madhubala Pratapsingh ) Ved, residing at ground Floor ) Mariwala Sanitorium, Rajawadi Road, ) Ghatkopar (East), Mumbai 400 077. ) 3F. Smt. KumudbenChandrasen Bhatiya, ) 3 residing at Plot No.143, Bungalow ) No.2 Devani Complex, Next to ) Ravi Society, Raiwood Area, ) Lonawala (Maharashtra). ) 3G. Mrs. Shobha Mahendra Toprani, ) residing at 1715, Diamond Baug, ) B.I.V.D., Diamond Baug, ) CA-9765 (U.S.A.) ) 4. Shri Bhagwandas Karsondas ) (since deceased) ) 4A. Laxmibaiwife of Bhagwandas ) Karsondas, residing at Kakubhai ) Rangwala Bungalow 73A, Hirachand ) Desai Road, Ghatkopar (West), ) Mumbai 400 086. ) 4B. Anil Bhagwandas S/o. Bhagwandas ) Karsondas, residing at Kakubhai ) Rangwala Bungalow 73A, ) Hirachand Desai Road, ) Mumbai 400 086. ) 4C. Jogen Bhagwandas S/o. Bhagwandas ) Karsondas Residing at Kakubhai ) Rangwala Bungalow, 73A, Hirachand ) 4 Desai Road, Ghatkopar (West), ) Mumbai 400 086. ) 4D. Ila Dharamkumar Ramaiya ) residing at 10, Natraj, ) Santacruz, mumbai 400 054. ) 5. Chaturbhuj Marsondas ) (since deceased) ) 5A Mangal @ Morarji Chaturbhuj ) Ashar,Residing at Kakubhai Rangwala ) Bungalow 73A, Hirachand Desai Road, ) Ghatkopar (West), Mumbai 400 086. ) 6. Hirji Keshavji Rangwala ) residing at Rangwala Apartment ) M.G.Road, Ghatkopar (West), ) Mumbai 400 086. ) 7. Kanaksingh Keshavji Rangwala, ) residing at Rangwala Apartments, ) M.G.Road, Ghatkopar (West) ) Mumbai 400 086. ) 8. Girdharlalji Thakorji Family ) Deity through Hirji Keshavji Rangwala) residing at Rangwalla Apartment, ) 5 M.G.Road, Ghatkopar (est), ) Mumbai400 086. ) 9. Brajlata Jaysingh Bhatia ) residing at 7, Janki Smruti ) 1st Floor, SarojiniNadyu Rd. ) Mulund (W), Mumbai 400 080. ) 10. Hemlata Mahendra Udeshi ) residing at Shirin Apts., ) Flat No.102, 1st Floor, ) Javjee Dadajee Road, Opp. ) Ganga Jamuna Theatre, ) Tardeo, Mumbai 400 007. ) 11. Kalindevi Hareshkumar Sampat ) residing at B-1, Vinit Apartments, ) Ground Floor, Majithia Nagar ) Compound,S.V.Road, Kandivli (West), ) Mumbai 400 067. )..Respondents And 12. Court Receiver, High Court, ) Bombay. )..Symbolic possession Holder. 6 Mr. Prakash Ranchhoddas Rangwala, applicant in person present. Mr.Vijay G.Kelbaikar, Advocate, for respondent No.1. Mr.V.S.Lonkar, Advocate for respondent No.2A to 2d and 4B & 4C. Mr. R.T.Parekh, Advocate, for respondent Nos.4A & 4D. Mr. K.L.Vyas, Court Receiver and Mr. D.v.Deokar, 1st Assistant to Court Receiver present before the Court. CORAM: J.H.BHATIA,J. CORAM: J.H.BHATIA,J. CORAM: J.H.BHATIA,J. DATE: 25th March,2008. DATE: 25th March,2008. DATE: 25th March,2008. JUDGMENT JUDGMENT JUDGMENT 1. At the outset, it may be stated that initially this Revision was filed as an Appeal from Order and was registered as A.O.No.131 of 2006. However, after finding that the Appeal against the impugned order is not tenable under Order 43 of C.P.C., on the request of the appellant, the Appeal was converted into Revision Application. 2. Father of the revision applicant was the original defendant No.1 in Short Cause Suit No.7817 of 7 1977. That suit was filed by one Bhimji Karsandas. After his death, his L.Rs. were brought on record as plaintiff Nos. 1(a) and 1(b), who are respondent Nos. 1 and 2 in the present Revision Application. That suit was pertaining the property known as "Virji Mathuradas Bungalow" situate at Jayantilal Vaishnav Road, Ghatkopar (West), Mumbai, In that suit, the plaintiff had sought a declaration that the suit property was a joint property of the plaintiff and the defendants and each of them were entitled to 1/15th share. A preliminary decree was passed in that suit on 31.10.1988 and the final decree was passed on 25.1.1989. It was held that 2/3rd share in the property belongs to the defendant No.6, the family deity and the plaintiff and the defendants had different shares in the remaining portion of the property. The deceased defendant no.1 Ranchhoddas was not satisfied with the decree and he had preferred an appeal. The Appeal is still pending in the High Court. Taking into consideration the controversy, for preservation of the property, the Court Receiver was appointed on 31.1.1989 with a direction to take the nominal possession of the property and to appoint the occupants of the different parts of the building as agents of the Court Receiver. 3. Defendant No.1 Ranchhoddas, father of the present applicant, being the occupant of certain portion of the said building was also appointed as an agent and 8 accordingly he had executed an agency agreement in favour of the Court Receiver showing that he was in possession of two rooms on the first floor and commercial premises on the ground floor of the suit building. Besides this, he was in joint occupation of one room on the ground floor jointly with M.C.Ashar, the defendant No.3. They were in joint possession of one room of 14’.3" x 11’.3" and a portion admeasuring 11’.3" x 3’. The total area of that portion admeassures 181.69 sq. ft. As it was in joint possession of defendant NO.1 Ranchhoddas Rangwala and defendant No.3 M.C.Ashar, each of them was deemed to be in possession of 90.85 sq. ft. Ranchhoddas died on 11.10.1998. His daughter Sarla and the present applicant as well as Mukesh were some of the L.Rs. of deceased Ranchhoddas. His daughter Sarla claimed that Ranchhoddas had executed a Will bequeathing his property, including the suit property, in her favour and thereafter she had also obtained a probate and claimed to be in possession of the premises alone. She was unmarried and she died on 14.8.2002. The original defendant Nos. 4 to 6 took out a Notice of Motion No.4719 of 2004 contending that the present applicant had fraudulently taken possession of the premises of Ranchhoddas by using a duplicate key without any authority or permission from the Court Receiver and sought direction to the Court Receiver to take possession of the suit premises from the defendant No.1(d) Prakash son of Ranchhoddas Rangwala, who is the 9 present applicant. That Application was also pertaining the possession of some other premises in the building from one Cyril D’Costa, but we are not concerned with that part of the dispute. 4. On the basis of a complaint made by Mukesh Rangwala, brother of the applicant, before the Court Receiver, the Court Receiver submitted a report to the trial Court and that report was considered by the trial Court while disposing of the Notice of Motion No.4719 of 2004. The trial Court came to the conclusion that Sarla, daughter of original defendant No.1 Ranchhoddas, alone was living with her after and as per the evidence on record, the present applicant and his brother were not living in the suit premises. The trial Court came to the conclusion that after the death of Sarla, the present applicant had, wrongly and without any authority or permission from the Court Receiver, taken possession of the disputed premises which were in possession of his father, including the room on the ground floor. The contention of the present applicant that he was all along living in the disputed premises with his father and after his death also he continues to reside there, came to be rejected. In view of this finding, the trial Court passed the impugned order dated 13.1.2006 and directed the Court Receiver to take possession of the premises of Sarla Asher from the defendant No.1(d) or any person in occupation thereof within one month from 10 the date of the said order, by taking help of the local police, if required. That order is challenged in the present Revision Application by the original defendant No.1(d). 5. Heard the applicant as party in person and the learned Counsel for the contesting respondents and perused the record. 6. There is no dispute that presently, the applicant is in occupation of whole of the room which was in joint possession of his father and defendant no.3 M.C.Ashar. That room is in possession of the applicant since 1990. The applicant is also in possession of the rooms on the first floor, as well as He is also in possession of the commercial premises on the ground floor, which were in possession of his father. This property is in dispute. There is no dispute that original defendant no.1 had bequeathed his property including the suit property in favour of his daughter Sarla and she had obtained a probate of that Will. Admittedly, Sarla was unmarried and she died intestate on 14.8.2002. As the property had come to her share from her father, naturally, the legal representatives of her father would also be her legal representatives on her death and the present applicant is one of them. 7. The applicant contended that his continuous 11 possession over the disputed premises can be seen from several documents which he had relied upon before the trial Court. According to him, his name is shown as one of the members of his family in the Ration Card which was issued in 1953-54. He has also driving licence issued by the Regional Transport Authority on 5.1.1970, Television Licence under the Indian Telegraph Act issued on 24.8.1973 and the licence issued on 19.11.1974 authorising him to get milk supply. Admittedly, the applicant was born in 1951 and the Ration Card was issued in 1953-54 in the name of his father. The other documents which he has relied were also pertaining to the period 1970 to 1974. It mean that his name in the ration card must have been included when he was child and other licences must have been taken by him when he was a young man aged 22 - 23 years. At that time, he might be living along with his father. In my considered opinion, these documents are not sufficient to prove his continuous possession of the disputed premises. 8. He has further pointed out that on search warrant issued by the Court of Judicial Magistrate, First Class, Bhiwandi, in C.C. No.222/1992, Police from Police Station, Ghatkopar had taken search of their house in the suit premises. Entry No.43 was taken in the station diary on 27.11.1992 about the receipt of search warrant of the House of Ranchhoddas and Prakash Rangwala at House No.73, Virji Mathuradas Bungalow, J.V. 12 Road, Khot Lane Corner, Ghatkopar West, Bombay 400 086. Entry No.49 in the station diary is pertaining to the actual search taken by the police on that day. This entry reveals that at the time of search, Ranchhoddas, his daughter Sarla and daughter-in-law Jyotiben wife of prakash were present in that house. About that search police had prepared search panchnama of the said search and that panchnama also shows that Jyotiben wife of Prakash and Sarla were present in the common hall. According to the applicant, these entries reveal that on 27.11.1992, when the police searched the house, besides his father and sister, his wife was also present and this evidence indicates that he was in joint occupation of that premises. 9. He also relied upon a report submitted by B.A.Rumao, 1st Assistant to the Court Receiver on 11.11.1995. He had taken inspection of the property pursuant to the meeting which was held on 18.10.85. His report reveals that at the time of visit to the spot, Sarla Ashar, the constituted attorney of defendant No.1, defendant No.1 himself, Prakash Rangwala - the occupant of the premises, Gogen Ashar, defendant No.2(c) and M.C.Ashar, defendant No.3 were present. The site inspection report submitted by Z.A.Shaikh, Assistant to the Court Receiver on 14.1.1997, shows that when he had reached the suit bungalow, defendant No.1 Ranchhoddas Rangala, his son Prakash and some other defendants were 13 present in the building. Another inspection report dated 27.7.1998 by S.A.Shaikh, representative of the Court Receiver, shows that when he inspected the premises, besides some other persons, the present applicant Prakash and his father were present. The report dated 10.5.1999 from the representative of the Court Receiver shows that when he had reached the suit premises, pointed out to him by Hirji Rangwala, he had pushed the door-bell and the door was opened by Prakash Rangwala, son of the deceased defendant no.1 Ranchhoddas Rangwala. He had obstructed the entry of Hirji Rangwala making certain allegations against him. The applicant also relied upon an envelope containing condolence message received on 20.8.2002 after the death of his sister Sarla. On that envelope, the address of the present applicant was shown as "Shri Prakash Bhai Asher, 73, Rangwalla Building, Ghatkopar West, Bombay 400 086". On the basis of these documents he contends that he was in continuous possession and occupation of the disputed premises. 10. In addition to this, he also relied upon the observations made in the Judgment dated 29.8.1996 by the learned Judge of the City Civil Court in Short Cause Suit No.7769 of 1996 filed by Morarji Chatrabhuj Ashar against his father and others including the Court receiver. That suit was filed for seeking permanent injunction restraining the defendant No.1 Ranchhoddas 14 from dispossessing the plaintiff from certain property including the room on the ground floor. In para 14 of the said judgment, the learned trial Court Judge observed that during the cross-examination,the plaintiff M.C.Ashar had admitted that since the year 1990, Prakash son of defendant No.1 and his wife were using the said room exclusively as their bedroom. One more witness, who was examined as P.W.8 and who was referred to as a relative of the parties, had also admitted in the cross-examination that Prakash and his family were residing in the said room since the marriage of Prakash. In vie of these admissions, the suit came to be dismissed, because the plaintiff M.C.Ashar was not in possession and he could not file a suit for perpetual injunction simpliciter. In view of this judgment and observations made therein, it appears that the present applicant Prakash was residing in the room on the ground floor since 1990 when he was married. It appears that the judgment of the City Civil Court in that suit has become final. Thus, it may be held on the basis of the said judgment that since 1990 the present applicant is residing in the room on the ground floor. Though initially, the said room was in joint possession of defendant no.3 M.C.Ashar and defendant No.1 Ranchhoddas Rangwala, the father of the applicant, it appears that since 1990 that room is in possession of the present applicant. The documents referred earlier show that as and when certain meetings were held or inspection was 15 made or police party had taken search of the premises, the present applicant or his wife were found present. As the applicant was actually living in the room on the ground floor, presence of himself or his wife could not be disputed. 11. One thing is clear that though the room on the ground floor was in the joint possession of defendant No.1 Ranchhoddas and defendant No.3 M.C.Ashar and accordingly, they were appointed as agents of the Court receiver as per the order of the Court. M.C.Ashar had lost possession in favour of the defendant No.1, but the said room was in actual use and occupation of the present applicant even during the lifetime of his father. But the fact remains that the applicant was never appointed as agent of the Court Receiver. As far as the rooms on the first floor and the commercial premises are concerned, his father was, admittedly, in occupation thereof since before the suit was filed and was also in occupation of the same when the Court Receiver was appointed. Accordingly, his father Ranchhoddas had also executed agency agreement in favour of the Court Receiver in respect of the said premises as well as the room which was in joint possession of himself and M.C.Ashar. As pointed out earlier, Ranchhoddas died leaving behind a Will whereby he bequeathed this property in favour of his daughter Sarla. 16 12. The record reveals that Sarla had signed a draft agency agreement in favour of the Court Receiver on 19.4.2000 i.e. after the death of her father and thereafter she executed the final agency agreement on 13.5.2000. This agreement came into force with effect from 11.10.1998 i.e. when the original defendant No.1 Ranchhoddas had died. After the death of Sarla, neither the present applicant applied to be appointed as agent of the Court Receiver nor he executed any agency agreement in favour of the Court receiver. 13. Learned Counsel for the respondents referred to certain statements made by Ranchhoddas,father of the applicant, in the suit to show that his sons were living separately from him and were not members of the joint family. Ranchhoddas had admitted in the cross-examination on 13.4.1988 as follows :- "I have three sons and all those three sons reside separately from me. I never tried to accommodate all the three sons in the suit property. My daughter is residing with me in the property. Name of the daughter is Miss Sarla R. Ashar." He also admitted that Sarla was residing with him since 1940 and she was attending the suit from time to time. The learned Counsel also pointed out that in her 17 affidavit in support of the Chamber Summons No.406 of 1999 in Suit No.7817 of 1977, Sarla had admitted as follows :- "I have throughout been residing with the deceased Defendant No.1 abovenamed as his daughter and heir in the said Residential portion of the suit property. As aforesaid, under the said will, Exhibit-A hereto, I have become the absolute owner of the said business which the deceased Defendant no.1 above named had been carrying on in the said Commercially used portion of the suit property. Since the death of the deceased-Defendant No.1 abovenamed I have been in the use, occupation and possession of the said portions of the suit property and I have been regularly making payments of the amounts of royalty for the same to the Court Receiver." 14. Learned Counsel also invited my attention to the statement of the present applicant Prakash Rangwala in his affidavit in support of the Notice of Motion No.239 of 2002 in Suit No.7817 of 1977 to show that he was residing only in the ground floor room. His statement runs as follows :- "I being a heart patient & as per the advise of Doctors taking rest in my single room of 18 approximately 14’ x 8’ on ground floor of the suit bungalow which comprising of Bed Room, Drawing Rom, Kitchen, Study room for my only 9 years old daughter & moreover BATH ROOM ...." "I am the son of the Defendant no.1 Shri K.Rangwala who died on the 11th October 1998 and as the suit property was in control & possession of the Court Receiver as per the Order of this Hon’ble Court, I did not move any application under Order 1 Rule 10 of C.P.C. but as I am residing in the room on the ground floor of the suit property and I am a member of the family. I am advised to move an application under Order 1 Rule 10 of C.P.c. for adding me as necessary party in this suit in the place of my deceased father along with my sister Miss Sarla Ranchhoddas Ashar as Defendant No.1 to protect the right and interest of the family, to protest the illegal actions of the Commissioner of Police, Bombay." 15. From the statement of the applicant Prakash in his own affidavit, it is clear that he was residing in the room on the ground floor of the suit property. As pointed out earlier, that was the room which was previously in joint possession of defendant No.1 Ranchhoddas and defendant No.3 M.C.Ashar. Taking into consideration the above referred depositions and the 19 statements on affidavits, it becomes clear that since 1990, the present applicant Prakash is living in the room situated on the ground floor. His father was living along with his daughter Sarla, but none of his three sons were living with him and they were living separately. After the death of defendant No.1 Ranchhoddas, the property in his possession continued to be in possession of his daughter Sarla because she was living with him since 1940 and as per the Will executed by her father, the property was bequeathed to the applicant. In view of this, it is clear that as far as the rooms on the first floor and the commercial premises are concerned, the said property was never in possession of the present applicant during the lifetime of his father or during the lifetime of Sarla. Rightly or wrongly, he was in possession of only the ground floor room which was previously in joint possession of his father and defendant No.3 M.C.Ashar. There is no document to show that after the death of Sarla, possession of that property was given to the present applicant. Admittedly, he never applied to be appointed as agent of the Court Receiver nor he had executed any agency agreement in favour of the Court Receiver. On the other hand affidavits have been filed by some of the respondents that the present applicant had taken possession of that property by using the duplicate key of the lock, because the original key was in possession of another sister of Sarla. Of course, the present 20 applicant denies that he had used any duplicate key and according to him, he was in possession of the premises. 16. Taking into consideration the material discussed above, it is clear that whether the original key was used or duplicate key was used, the applicant took possession of the suit premises after the death of Sarla and for that he was not authorised by the Court Receiver. As the Court Receiver was appointed for the said property, when the agent of the Court Receiver died, the property was supposed to be in possession of the Court Receiver and nobody could take possession of the same without obtaining written permission and authority from the Court Receiver. As the present applicant never obtained such a permission nor he was appointed as agent nor he had executed any agency agreement in favour of the Court Receiver, his occupation over the suit premises is unauthorised and, therefore, the learned trial Court was right in directing the Court Receiver to take back possession of the suit premises from the present applicant. Taking into consideration the material, which was before the trial Court and which was considered before passing the impugned order, I do not find any illegality or material irregularity in the impugned order. Therefore, I do not see any reason to interfere in the said order. 17. Before concluding, it may be pointed out that 21 after the death of Sarla, the property of her father would go back to her father’s legal heirs and the present applicant, being a son, is one