1 MNM IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 3029 OF 2007 IN SUIT NO. 2964 OF 1994 AND NOTICE OF MOTION NO.3041 OF 2007 IN SUIT NO.2964 OF 1994 AND NOTICE OF MOTION NO.3629 OF 2007 IN SUIT NO.2964 OF 1994 Siddiqua D/o. Sayed Mustafa Sayed Murtuza Mirai ...Plaintiff Vs. Sayed Jaleel S/o.Sayed Mustafa Sayed Murtuza Mirai & Ors. ...Defendants And M/s. KGA Solutions Pvt. Ltd. & Ors. ...Respondents And Ketan Shah & Anr. ...Applicants Mr.Bharat Vaishnawa with Mr. A.D. Dube i/b. B. Vishnawa & Co., for Plaintiff Mr. Sandeep Bhagwat for Defendant No.1 Mr. Sean Wassodew for Applicant in N.M.No.3029/2007 2 CORAM : SMT. ROSHAN DALVI, J. DATED : 30TH MARCH, 2010 P.C. : 1. The Suit is filed for partition of the share of the Plaintiff. The Suit is in respect of several properties. The Plaintiff has claimed of 7/48th share in the estate left by the Plaintiff’s father. 2. We are concerned with only one of the properties in this Suit i.e. Shop No. 7A at 368/370 situate on the ground floor, “Olympia Restaurant”, Silver Cinema Building, Falkland Road, Mumbai-400 004. The Plaintiff’s mother was the tenant in respect of the shop until she expired in 1999 pending the Suit. 3. After the death of the mother, Defendant No.1 applied for transfer of the tenancy to his name. His application was on the representation that he was her only son. His application was also upon the fact that his mother had executed a declaration. The declaration is unregistered. It is on a stamp paper purchased on 6th April 1994. It is shown to be signed on 8th April 1994. It is accompanied by a letter stated to be of the mother. The copy of the letter is produced. The copy is type-written, only the date and the initial on the letter are in black ink. The initials upon the stamp papers as well as the letter are made on the foot of the page. Though these documents are stated to be executed in 1994 by the mother during her life 3 time, they were never used by the Defendant No.1 in the Suit at any time. For the first time after the death of his mother on 9th December 1999, he applied that the tenancy be transferred to him representing that he was the only son and since his mother made the declaration. 4. This suit has been filed since 1994. During the pendency of the Suit the Defendant No.1 has sought to have tenancy of one of the suit properties transferred to his name. The Plaintiff, therefore, applied for certain reliefs in the Suit. 5. Ultimately an order came to be passed in the Applicant’s Notice of Motion No.814/2006 on 10th July 2007 specially with regard to this property. 6. It was observed that one Conductor was carrying on certain business in the Suit premises. Thereafter the Defendant No.1 appears to have taken possession to the exclusion of the sister. Court Receiver came to be appointed in respect of the suit premises and the business run therein. 7. The Court Receiver was directed to give the business for conducting to the highest bidder and for appointing the highest bidder as his Agent with security and payment of royalty to be fixed under the direction of this Court. The Defendant No.1 was restrained from transferring or creating any 3rd party rights etc., in the suit premises and also from accepting surrender of any tenancy. 4 8. The Defendant No.1 failed to defend the Notice of Motion. He did not file any affidavit in reply. The Defendant NO.1 has applied for setting aside that order and for hearing him on merits. 9. He contends that the tenancy has been transferred to him. The tenancy has been transferred to him as aforesaid under the representation made by him to the landlord as aforesaid. So much for the merits of this case. 10.The Plaintiff as well as Defendant No.1 have admitted in the affidavits filed by them in some of the applications taken out in this Suit that one Haji Mohammed Kunji was the Conductor of the business being run in Shop No. 7 at the aforesaid address. It appears that the said Conductor surrendered the “tenancy” to the landlord on 6th March 2006. The applicant in Notice of Motion 3029/2007 came to be granted “tenancy” by the landlord on 7th March 2007. He came in possession of the suit premises on that day. It is claimed that he came into possession at 12.30 p.m.. He was dispossessed from the premises at about 4.30 p.m by the Defendant NO.1. He sued under Section 6 of the Specific Relief Act in the Bombay City Civil Court. He has obtained an order to be put back in possession. He claims to be a tenant. He has produced the tenancy agreement. The tenancy agreement is dated 9th March 2006. The Plaintiff’s Advocate has drawn my attention to the fact that the tenancy agreement is executed after the alleged forcible dispossession claimed by the applicant in Notice of Motion No.3029/2007. So much for the merits of the case of the applicant. 5 11.The Applicant claims that he should be put in possession. He took out Execution Proceedings. These proceedings were obstructed by the Defendant No.1. He has yet not been put in possession. A status-quo order is passed in the Applicant’s own Notice of Motion. 12.It can be seen that in the Plaintiff’s Suit for partition and pending that suit the Plaintiff’s brother Defendant No.1 claims to be the sole tenant of one of the premises to be partitioned. The applicant also claims to be the tenant. He claims tenancy upon the surrender of the tenancy to the landlord by the aforesaid Kunji. Kunji was never a tenant. He could never had surrendered the tenancy. The applicant in any event could never had been granted that “tenancy” of the suit property. The claim of the Defendant No.1 to the tenancy to the exclusion of the sister pending the sister’s Suit is improper. The claim of the applicant to tenancy is completely illegal. It is completely de hors the law of tenancy. 13.In such a situation the order of appointment of Court Receiver is required to be viewed. 14.The Suit properties are required to be protected pending the Suit. The fact that Defendant No.1 and the Applicant claim their rights as they do itself shows that the properties require and deserve the protection by the Court Receiver. The Applicant may be entitled to execute any order passed by the Bombay City Civil Court. Suffice it to say that that order merely puts the Applicant, who was forcibly dispossessed, back in possession. It grants no 6 rights, no interest and no title to the applicant. Once he is put in possession he has to be amenable to the Suit and all the orders that are passed in the Suit in respect of the property of which he claims to be in possession through the landlord and after the surrender not by the tenant, but by the tenant’s Conductor. 15.If and when the Applicant is able to execute the order of the City Civil Court and he does come into possession of the suit premises he would have to remain in possession, pursuant to orders already passed in respect of the Suit premises under the control and custody of the Court Receiver. 16.Both the Applicant and the Defendant have applied for the discharge of the Court Receiver. No case is made out for discharge of the Court Receiver. In fact upon the case of the Applicant and the Defendant No.1 themselves the case for appointment of Court Receiver and continuance of the Court Receiver is made out. This is upon hearing the Defendant No.1 on merits in Notice of Motion No.814/2006, in which the order was passed in his absence for want of any reply to the Notice of Motion. Hearing the Defendant No.1 himself and seeing the documents relied upon by the Defendant No.1 itself makes out a case for appointment of the Court Receiver. 17.Accordingly all the above Notices of Motion are dismissed. (SMT. ROSHAN DALVI, J.)