IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 1592 OF 2008 FIRST APPEAL NO. 1592 OF 2008 FIRST APPEAL NO. 1592 OF 2008 IN S.C. SUIT NO. 3442 OF 2007 Lal Mohomed Nabi Shaikh ... Appellant (Orig. Plaintiff) Vs. The Mumbai Housing and Area Development Board and another. Respondents (Orig. defendants) Mr. Suresh Gole, Advocate, for appellant. Mr. P.J.Ramchandani, Advocate for respondent No.2. CORAM: J.H.BHATIA,J. CORAM: J.H.BHATIA,J. CORAM: J.H.BHATIA,J. DATE: 26th August, 2008. DATE: 26th August, 2008. DATE: 26th August, 2008. P.C. P.C. P.C. 1. Heard the learned Counsel for the parties. 2. This appeal is filed by the plaintiff against the dismissal of the Suit No.3442 of 2007. 3. To state in brief, the suit property is bearing Tenement No.6/209 situate at Swadeshi Mill Compound, Chunabhatti, Sion, Mumbai 400 022. The building belongs to the respondent No.1 MHADA. The suit tenement in the said building was allotted to one Gulam Mohiddin, husband of the defendant/respondent No.2 - Zeenat Begum. Zeenat Begum is the real sister of the present plaintiff/appellant. It is contended by the plaintiff that Gulam Mohiddin was in heavy arrears of rent and, therefore, he had requested the plaintiff to help him in avoiding ejectment. Therefore, the plaintiff paid the arrears of rent and in consideration of that he was allowed to reside in the suit premises in 1978. After the death of Gulam Mohiddin in 1992, defendant No.2 filed Suit No.5977 of 1993 in the City Civil Court, Bombay against the plaintiff and MHADA for ejectment of the plaintiff. That suit was dismissed. According to Mhada, occupation of the present plaintiff was in violation of the terms and conditions of the allotment to Gulam Mohiddin. In fact, even before the suit was filed by defendant No.2 for ejectment, Mhada had commenced eviction proceedings bearing Case No.105/1993 under Section 66(i)(b) of Maharashtra Housing and Area Development Act against the plaintiff as well as the defendant No.2. In that matter, an order was passed for eviction of the defendant No.2 with a direction to the plaintiff to pay the penalty of Rs.50,000/- as a condition precedent for considering his application for regularisation. He paid that amount. That order was challenged by the defendant No.2 in Appeal No.22/2004. The appellate authority set aside the order of the Competent Authority and directed the defendant no.2 to pay the penalty of Rs.10,000/- for lapses on the part of her husband. Accordingly, the Appeal was allowed. That order of the appellate Court was challenged by the present plaintiff/appellant in Writ Petition No.1466/2006. That writ petition came to be dismissed on 19.7.2006. Even the review petition filed by the plaintiff/appellant was dismissed on 16.8.2007. 4. The plaintiff filed the suit No.3442/2007 contending that just two days before filing the suit, Mhada had actually dispossessed him from the suit tenement. In that suit, he sought a decree for restoration of possession. The trial Court, after hearing the parties, dismissed the suit. In view of the dismissal of the suit, the plaintiff has preferred the present appeal against that order. 5. From the record, it is clear that the judgment of the trial Court is based on the judgment of the appellate authority in the appeal field by the respondent No.2. From that judgment, it is clear that the order passed by the Competent Authority was set aside. The appeal was allowed and instead of the present plaintiff, the respondent No.2 was directed to pay the penalty of Rs.10,000/-, naturally it was for regularisation and therefore the ejectment order against her was set aside. Against that, Writ Petition No.1466/2006 was filed by the present plaintiff. That writ petition was dismissed by order dated 19.7.2006. It will be useful to quote the order passed by the Division Bench. "1. Petitioner was in the premises which were allotted to one Shri Gulam Mohiddin Fazluddin at one point of time, the Respondents had agreed to regularise the occupation of the Petitioner subject to the Petitioner producing N.O.C. from the original tenant. That was never produced. Apart from that, the legal heirs of the original tenant moved MHADA, pursuant to which the earlier order was set aside. In other words, the Petitioner’s occupation on the premises was held to be unauthorised. There is an order of eviction against him which is the subject matter of the present challenge. Considering the Affidavit filed by Natha Anna Chaugale, we are clearly of the opinion that this is not a fit case to exercise our extra ordinary jurisdiction. Petition is rejected." Later on, the present appellant had also filed a review application which was also rejected. 6. From the observations of the Division Bench in the Writ Petition, it is clear that the occupation of the present plaintiff was found to be unauthorised and it also observed that there was an order of eviction against him. The judgment of the trial Court clearly shows that the suit was dismissed on the basis of the order passed by the appellate authority and the observation made by the Division Bench of this Court in the above said writ petition. 7. Taking into consideration the circumstances, it is impossible to find any fault with the dismissal of the suit wherein the plaintiff had sought restoration of possession. As he was found to be in unauthorised occupation, Mhada was justified in dispossessing him and recovering possession to the defendant/respondent No.2 who was the allottee. In these circumstances, I find no material even to admit this First Appeal. The Appeal stands dismissed. 8. As the Appeal itself is dismissed, C.A. No.4087 of 2008 does not survive and stands disposed of accordingly. (J.H.BHATIA, J.) (J.H.BHATIA, J.) (J.H.BHATIA, J.)