1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO. 1737 OF 2010 IN FIRST APPEAL NO.672 OF 2010 Smt.Sundradevi Laltaprasad Rajbhar & Ors. .. Applicants V/s Mr.Ramdev Laltaprasad Rajbhar & Ors. .. Respondents Mr.S.P.Srivastava for the Applicants. Mr.M.D.Pokale for the Respondents. CORAM : R.G.KETKAR, J. DATE : 10th June, 2010 P.C. : 1. Rule. Rule is made returnable forthwith. Heard learned counsel appearing for the parties. By this application, the applicants are seeking stay to the execution and/or operation of the judgment and decree dated 25th February, 2010 passed by the learned Judge of the City Civil Court, Bombay in S.C.Suit No.4083 of 2007. By that order, the trial Court has decreed the suit instituted by Opponent No.1 and has restrained the applicants and the Opponent Nos.2 and 3 who are original Defendants, from entering upon and/or remaining upon and/or staying in the suit premises, after expiry of three months from the date of the said order. The applicants and the Opponent Nos. 2 and 3 2 are further prevented from obstructing or objecting the Opponent No.1 from entering upon or remaining or dealing with the suit property. The Opponent No.1 is the original Plaintiff whereas the Applicants and the Opponent Nos.2 and 3 are the original Defendant Nos.1 to 4. Applicant No.1 is the mother of Opponent Nos.2 and 3 and is step mother of Opponent No.1. Opponent No.3 is wife of Opponent No.2. The parties will be herein after referred to as per their original status before the trial Court. 2. It is the case of the Plaintiff that originally his father Ramdev Laltaprasad Rajbhar was residing alongwith the Plaintiff and the Defendants in Room No.2, Vishwas Co-operative Housing Society Limited, Plot No.273, Ground Floor, R.B.Mehta Road, Patel Chowk, Ghatkopar (E), Mumbai 400 075. It is his further case that after his marriage with Prema, his father and the Defendant No.1 shifted to the premises at Kailash Nagar, Road No.28, Wagle Estate, Thane. The Plaintiff was residing in the suit premises. Defendant No.1 shifted to her native place whereas the Defendant Nos.2 and 3 permanently shifted to Thane. The Slum Rehabilitation Authority (for short “SRA”) 3 allotted the suit premises to the Plaintiff as per the allotment letter dated 20th May, 2005. In the absence of the Plaintiff, the Defendants entered into the suit premises sometime after 15th October, 2006 and started residing there. 3. The Defendants resisted the suit and contended that father of the Plaintiff and Defendant Nos.2 & 3, late Laltaprasad was the owner and was residing in Room admeasuring 15ft X 12 ft given by his employer for residence. After the marriage of Defendant No.1 with Laltaprasad, she was residing in the said room alongwith her husband Laltaprasad who expired on 8th November, 1995 leaving behind him the Plaintiff and the Defendants. The plaintiff played mischief and got the allotment of alternate accommodation in his name without disclosing the said fact to the Defendants, from the SRA. They have equal rights over the suit property. On these among other grounds, they prayed for dismissal of the suit. 4. After considering the material on record, the Trial Court decreed the suit. It was recorded that the Defendant No.1 alongwith Laltaprasad shifted to Thane premises and since then the Plaintiff is residing in the suit premises. 4 5. With the assistance of the learned counsel for the parties, I have perused the oral evidence of the Plaintiff as also Rambhuvan who was examined as DW1. Perusal of the testimony of Plaintiff prima facie indicates that his father Laltaprasad purchased the Room at Thane in the year 1989 where the Defendant Nos.1 to 3 shifted. In the new ration card, the name of the Defendant No. 1 was recorded which was subsequently cancelled in the year 2000. In the cross-examination, DW1 admitted that at present the Defendant No.1 is residing at her native place and the property at Thane is in the name of Defendant No.1. He further admitted that the electric connection in respect of the suit premises is in the name of Plaintiff. He volunteered that he and the Plaintiff are sharing electric bills. However, he admitted that there is no documentary proof to show that he is sharing electric bills. He further deposed that the ration card is issued in the name of Defendant No.1 at the Thane premises. Considering the material on record, prima-facie I find that at the time when the allotment was made by the SRA in favour of the Plaintiff, the Defendants were not residing in the premises allotted by the SRA. The question whether the plaintiff is sole owner of the 5 suit premises as the allotment was made in the name of the Plaintiff or that the allotment was made for and on behalf of the joint family, cannot be gone into at this stage. Considering the strained relationship between the Plaintiff on one hand and the Defendants on the other, it is neither expedient nor desirable to grant stay of the impugned judgment and decree. The balance of convenience does not lie in favour of the Defendants. Since the Defendant No.1 has shifted to her native place and the other Defendants are residing at Thane, no hardship would be caused to them, if interim relief is refused. 6. In view of the material on record, prima-facie I am of the opinion that this is not the fit case where the impugned judgment and decree is required to be stayed. It is however necessary to protect the interest of the Defendants by directing the Plaintiff to furnish an undertaking in this Court to the effect that during the pendency of this appeal he will not create any third party interest in the suit premises in any manner whatsoever including that he will not enter into any agreement for sale or Leave and License agreement. Hence, I pass the following order: 6 The Plaintiff shall furnish an undertaking in this Court to effect that during the pendency of this appeal he will not create any third party interest in respect of the premises allotted by the S.R.A.viz. Room No.2, Vishwas Co-operative Housing Society Ltd., Plot No.273, Ground Floor, R.B.Mehta Road, Patel Chowk, Ghatkopar (East), Mumbai, in any manner whatsoever, including that he will not enter into any agreement for sale or Leave and License agreement. In the undertaking he will also make a positive statement to the effect that he alongwith his family members (names & relations with the plaintiff to be stated) is residing in the said premises, and no-one else is residing in the said premises alloted by the SRA. The undertaking is to be furnished to this Court within three weeks from today. 7. Rule is discharged in the aforesaid terms, with no order as to costs. (R.G.KETKAR, J.)