* 1 * IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 1390 OF 2009 1. Laxmibai alias Arujan Wadkar 2. Dattaram Arjun Wadkar 3. Krishnan Arjun Wadkar 4. Manoj Arjun Wadkar 5. Santosh Arjun Wadkar ........Appellants/Orig.Defds V/S. 1. Francis John Kinny 2. Bijya Joseph Kinny 3. Smt. Janabai John Kinny 4. Smt. Lilabai Billy Gomes 5. Nicholas John Kinny 6. Meena John Kinny ........Resps/Orig.Plffs. ----------- Mr. R.A. Shaikh, adv.for appellants. Mr.V.R. Tripathi, adv.for respondents. CORAM :- SMT. R.P. SONDURBALDOTA, J. DATED :- 8TH DECEMBER, 2009. P.C. :- 1. This First Appeal arises out of the judgment and decree dated 31st March, 2009 passed by the Bombay City Civil Court directing the appellants to hand over possession of the suit premises to the respondents. The appellants are the original defendants and the respondents are the original plaintiffs. The parties will be hereinafter referred to by their original nomenclature. * 2 * 2. The factual matrix of the case is as follows :- . The plaintiffs are the owners of the property known as Francis Kinny House situated at 192 Mori Road, C.S. 1410, 1/1410 behind 42F, Mahim, Mumbai-400 016 consisting of six rooms. Room no.2 therein was let out to one Kishan Mandal on monthly rent of Rs.75/-. Kishan Mandal died issueless on 30th May, 2000. He had been residing alone in the room. Defendant no.1 was working as a maid-servant with him on monthly salary of Rs.500/-. She had been residing alongwith defendants no.2 to 5 who are her children at Champubai Chawl, Mori Road, Mahim. From there, they had shifted to the premises at Janata Society, Mahim Dharavi Link Road, Mahim. A couple of days after the demise of Kishan Mandal, the defendants tresspassed on to the suit premises. When plaintiff no.1 went to take the possession, he was threatened by the defendants. They also filed a complaint with Mahim Police station against him. Thereafter, a counter complaint was filed by plaintiff no.1 against the defendants. 3. Kishan Mandal had filed R.A. Decl.Suit No.1110 of 1993 against the plaintiffs in the Small Causes Court at Bombay for a declaration that he was the tenant in respect of Room no.7 situate on the same property from where he was carrying on his carpentry business. After the death of Kishan Mandal, the defendants took out Interim Notice No. 3988 of 2000 for bringing themselves on record as heirs and legal representatives of Kishan Mandal. In the application, * 3 * defendant no.1 described herself as the concubine of Kishan Mandal. The application was dismissed by the Small Causes Court by its judgment and order dated 16th June, 2003. It held in categorical terms that the defendants were not the heirs and legal representatives of Kishan Mandal. The defendants challenged the order by filing Writ Petition No. 10434 of 2004 in this court. The Writ Petition came to be dismissed by the order dated 20th June, 2006 holding that defendant no.1 was the domestic servant of Kishan Mandal and that the defendants are not his heirs and legal representatives. Thereafter, the said suit was disposed off, as having been abated and the plaintiffs have taken possession of the premises. 4. The present suit of the plaintiffs for possession was defended by the appellants on the same ground as their claim before the court of Small Causes in declaratory proceedings filed by Kishan Mandal that they are the heirs and legal representatives of deceased Kishan Mandal. The Bombay City Civil court held that the question as regards the issue of the appellants being the heirs and legal representatives of deceased Kishan Mandal is barred by res-judicata since the same has already been decided by the Small Causes Court in the declaratory suit. The appellants have not set up any other plea of right or occupy the premises. 5. Mr.Shaikh, the learned counsel for the appellants-original defendants argues that the plaintiffs are not owners of the suit property and therefore they * 4 * have no right to claim possession from the defendants. He submits that the plaintiffs are infact tenants in respect of the property. Perusal of the records and proceedings and the evidence produced before the court shows that the plaintiffs are tenants of the government in respect of the land. The structure standing thereon has been constructed by them. Therefore, there can be no substance in the contention of the defendants that the plaintiffs are not the owners of the suit property and hence they are not entitled to seek possession from the defendants. 6. The trial court has rightly appreciated the contentions arising in the suit. The defence of the appellants being barred by res-judicata , there could be no other conclusion in the suit than that drawn by the Bombay City Civil Court. In the circumstances, there are no disputed questions of law arising for consideration of this court. Hence, the First Appeal is dismissed. [SMT. R.P. SONDURBALDOTA, J]