1 18 cra 701.09.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION srk CIVIL REVISION APPLICATION NO.701 OF 2009 D.H.Nanavati of Mumbai ..Applicant. v/s. Chung Yung Chinese & Ors. ..Respondents. .... Mr. K.D.Shah for the Applicant. Ms. R.S. Pandit for the Respondent. .... CORAM : J.H.BHATIA, J. DATE : 26TH AUGUST, 2010. P.C. 1 Heard. 2 The present Applicant filed Short Cause Suit No.806 of 2003 under section 6 of the Specific Relief Act for possession of the suit premises. That suit was dismissed. Hence, this Revision Application. 3 To state brief: It is the case of the Plaintiff that deceased Yang Chin Shin had become very close to the family of the Plaintiff since 1979-80 and he also used to reside with him as his family member. This 2 18 cra 701.09.doc continued for a period of about 10 years. In April, 1991 the Plaintiff approached one Mrs.Rajani Shirish Patel to take one of the Flats in the West View Building, belonging to M/s. Rajani Trust on rent. Earlier it was in occupation of one Kishore Shah who had vacated the same. The Trust agreed to give the suit premises on rent to the Plaintiff. However, on the request of the Plaintiff, the rent receipts were issued in the name of Yang Chin Shin since May 1991 and he continued to reside therein. Actually said Yang Chin Shin was a gratuitous licensee of the Plaintiff while the Plaintiff was real tenant in the suit premises. Said Yang Chin Shin died on 28.11.2001 . After his death the Plaintiff asked his relatives to remove the personal articles and belongings of the deceased and to vacate the premises, which they agreed to do within a couple of days and they did. The Plaintiff put his lock on the premises and time to time his representative used to go to the suit premises for cleaning. On 2nd December, 2002, it was revealed that the Defendant had opened the lock and taken unauthorised possession of the flat. The original Defendant was mother of deceased Yang Chin Shin. After her death, her other legal heirs are brought on record. After he came to know that the deceased Defendant had taken wrongful and unauthorized occupation, the 3 18 cra 701.09.doc Plaintiff filed the suit on 10.02.2003 for possession under section 6 of the Specific Relief Act. 4 The Defendant contested the suit denying the claim of the Plaintiff. According to her, she was living in the suit premises alongwith her son, who was the tenant. According to her, the Plaintiff has no concern with the suit premises. She had also filed a suit for declaration that she is a tenant and entitled to be in possession. That suit is pending. 5 After hearing the evidence of the parties, the trial court dismissed the suit filed by the Plaintiff holding that he had failed to prove that he was in possession of the premises and that the Defendant had wrongfully and unauthorisedly taken possession of the same within six months before filing of the suit. 6 On perusal of the record, it appears that PW.3 Satish Bhalchandra Bapat, the Manager of the M/s. Rajani Trust admitted in the cross-examination that the Plaintiff was never tenant in the suit premises and the rent receipts were issued in the name of Yang Chin Shin, though they were forwarded at the 4 18 cra 701.09.doc address of the Plaintiff. Even PW.2 Sonal daughter of the Plaintiff admitted that prior to Yang Chin Shin, one Kishore Shivlal Shah was residing in the suit premises as a tenant. She admitted that there was no documentary evidence to show that her father i.e. Plaintiff had taken the suit flat on tenancy basis. She also admitted that there was no document to show that the tenancy was ever transferred by the Plaintiff in the name of Yang Chin Shin. She admitted that after residing with their family for about 10 years Yang Chin Shin had started to reside in the suit premises. She also admitted that Defendant no.1-A, who is son of the original Defendant no.1 and brother of the deceased Yang Chin Shin, was residing in the suit premises for sometime alongwith his wife and family. In view of the admissions in the Plaint and by the witnesses on behalf of the Plaintiff, there is no documentary evidence that the Plaintiff was ever a tenant of the suit premises. Though according to him, relatives of deceased Yang Chin Shin had vacated the premises within two days, there is no evidence to that effect except the word of the Plaintiff and his daughter. 7 The Defendant No.1-A deposed that he used to reside in the premises along with his brother and his mother was also residing 5 18 cra 701.09.doc there. Even according to the Plaintiff, during the period of one year from December, 2001 to December, 2002 before he was illegally dispossessed, he was never residing in the suit premises and that only his representative used to go to the suit premises for cleaning purposes. No such representative is examined. Taking into consideration all this material, it is difficult to believe that the Plaintiff was in possession and that he was dispossessed by the Defendant within six months before filing of the suit under section 6 of the Specific Relief Act. In view of the material on record, I find no illegality or irregularity in the impugned judgment passed by the Civil Court. 8 Therefore, the Revision Application stands disposed of. [ J.H.BHATIA, J. ]