Lsp IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION APPEAL FROM ORDER NO. 525 of 2008 Shyam Ramchandra Shirke ....Appellant V/s. Shri Ramchandra Bhairu Shirke & ors. ....Respondents Mr. B.K.Raje for the appellant Mr.P.J.Shinde for respondent no.1 Mr. D.K.Ghaisas for respondent no.3 CORAM CORAM CORAM : SMT. R.P. SONDURBALDOTA, J : SMT. R.P. SONDURBALDOTA, J : SMT. R.P. SONDURBALDOTA, J 8th 8th 8th July, 2008 July, 2008 July, 2008 P.C. 1. The Appellant who is the original plaintiff prefers this appeal against the order dated 15-11-2007 passed by the Bombay City Civil and Sessions Court in Notice of Motion No. 4683 of 2006 in SC Suit No.5271/2006. Pursuant to the notice before admission, Respondent Nos. 1 and 3 are present before the Court to oppose the admission of the appeal. The other Respondents are not before the Court despite the service. By the impugned order the possession of the Appellant in respect of the residential premises of the loft above shop nos. 11 and 11A situated at 47, Ridge Road, B.G.Kher Marg, Bombay-400 006 has been protected. However, the relief in respect of the shop wherein Respondent No.7 is running a beauty parlour, was rejected. 2 2. Admittedly the shop premises were acquired by Respondent no.1 who is the father of the Appellant, in the year 1953. The premises are tenanted premises with the tenancy standing in the name of Respondent No.1. It is contended by the Appellant that the shop premises is infact joint family property since the same was acquired out of the funds of joint family. It appears that there is some agriculture land belonging to the family. However, there is no material whatsoever brought on record by the Appellant to prima-facie indicate that the premises were acquired out of the funds of the joint family property. Mr. Raje submits that the brother-in-law of respondent no.1 had given a handloan to him for the purpose of acquiring the premises. Even if that is so it cannot be said that the property is joint family property. In the circumstances, prima-facie the Appellant have no present right to the said premises since the father is alive. 3. It is contended by the Appellant that said shop was given to him for conducting by way of a family arrangement arrived at in the year 1990. By the same arrangement his two brothers were given saloon business for conducting on "Chair basis". This is disputed by Respondent No.1 and Respondent No.3. According to them the Appellant is also carrying on business of hair cutting saloon from two chairs alongwith his step 3 brothers. It is the case of these Respondents that Respondent no.1 was carrying on business of General Store from the shop premises in partnership with another person. The Partnership came to an end in the year 2006 and Respondent No.1 gave the shop premises on conducting basis to Respondent No.7. 4. Though the appellant claims to have been conducting the business of General Store from the shop premises in the year 1990, there is no material brought before the Court in support of the same. He relies upon documents in the form of notice issued by Public Health Department of Municipal Corporation, Greater Bombay dated 13-10-1997. It appears that on that day the Food Inspector had collected samples of Maggi Noodles instant food from the shop. Though name of the Appellant appears at the address, it will be difficult to hold from that document alone that the Appellant had been conducting the said business. 5 . Mr.Raje then submits that the agreement that was executed between Respondent no.1 and Respondent no.7 was 4 for a period of only 11 months which has already expired. There has been no agreement of renewal. Therefore, it is only appropriate that the Court allows the Appellant to run a business of General Store from the premises by removing respondent no.7 therefrom. It is undisputed that respondent no.7 is continuing to run a parlour from the premises. It is already seen that on a prima-facie view, the appellant does not have any present right to the shop premises. In these circumstances, the relief of mandatory nature as prayed cannot be granted. The impugned order does not require any interference. Hence the order. O R D E R R D E R R D E R The Appeal is rejected in limine. (SMT. (SMT. (SMT. R.P.SONDURBALDOTA,J) R.P.SONDURBALDOTA,J) R.P.SONDURBALDOTA,J)