:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE SIDE CIVIL APPELLATE SIDE CIVIL APPELLATE SIDE CIVIL REVISION APPLICATION NO.477 OF 1999 CIVIL REVISION APPLICATION NO.477 OF 1999 CIVIL REVISION APPLICATION NO.477 OF 1999 1. Najma Sajjad Kanji 2. Sajjad Abdul Rasul Kanji Both adults of Bombay Indian Inhabitants, residing at 53, Valentina, Gamadia Road, Bombay 400 026. ...Applicants. v. 1. Mr.Rashid Suleman Oomer age 52 years, Occupation Chartered Accountant. 2. Mr.Riaz Suleman Oomer, age 47 years, Occ.Business 3. Mrs. Saeeda Mohamed Ismail Kadwani, aged 60 years, Occupation: Household Wife, 4. Miss Salima Suleman Oomer, Age 54, Occ. Household Lady, All Adults Indian Inhabitants of Mumbai having address at India House No.2, Kemp’s Corner, Bombay 400 036. ..Respondents. Mr.Narayan Sahu for Mr.Sorab Jamshed Irani , advs. for the Applicants. Mr.Sajjad Kanji, applicant no.2 present in person. Mr.Prakash Gunwani i/by M/s. Nandlal Kothari & Sabir , adv. for the Respondent Nos.1 to 4. CORAM: CORAM: CORAM: J.H.BHATIA,J. J.H.BHATIA,J. J.H.BHATIA,J. DATE: 26th February, 2008. DATE: 26th February, 2008. DATE: 26th February, 2008. ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: 1. Applicants before this Court are the original plaintiffs and the respondents are the original :2: defendants. Defendant nos.1 and 2 are brothers and defendant nos.3 and 4 are sisters of the plaintiff no.1. Plaintiff No.2 is the husband of the plaintiff no.1. Property in dispute is a part of the building known as Kohinoor Building situated at 29 Hughes Road, Mumbai. The defendants are the co-owners of the said building. Plaintiffs are residing in another building at 53 Valentina, Gamadia Road, Mumbai. However, they are also in occupation of a room marked as Flat No.1A on the ground floor of Kohinoor Building. About that flat No.1A, there is no dispute between the parties. Admittedly, plaintiffs were inducted as tenants in the flat no.1A admeasuring 280 sq.ft. sometimes in 1984 by mother of the plaintiff no.1 and the defendants. The dispute is about open space in front of the building. According to the plaintiffs, this open space was actually a garden abutting flat no.1A and they are in occupation of the same since 1989 on the basis of permission granted by the mother of the plaintiff no.1 and according to them, this disputed portion has become part of the tenanted premises. According them, it was in exclusive possession of the plaintiffs since 1989 and even before that they were maintaining that garden. They had put fencing, grill and a gate so that their exclusive possession over garden could be maintained. This portion admesures 19 1/2 ft. x 14 1/2. The defendant no.1 is residing in another building at 12 Meher Apartments, Altamount Road, Mumbai while the :3: defendant no.2 resides on the entire 3rd floor of Kohinoor Building. It is contended that the defendants forcibly dispossessed the plaintiffs on 8-9-1997 at about 11.30 p.m. and took possession of the same. In view of this forcible dispossession, plaintiffs filed suit under Section 6 of the Specific Relief Act claiming possession of the same. 2. The defendant nos.1 and 2 contested suit but the defendant no.3 and 4, who are the sisters did not contest the suit. Defendant nos.1 and 2 denied existence of any garden or the space. According to them, it was always open space used for the purpose of parking of cars for the residents in that area. They also denied that the plaintiffs were in exclusive possession of the same at any time. They also denied that they had granted exclusive possession of the suit premises to the plaintiffs or that this property is part of the tenanted premises being flat no.1A. 3. On behalf of the plaintiffs, plaintiff no.1 examined herself while on behalf of the defendants, defendant nos.1 and 2 were examined. After hearing the evidence of both the parties, the learned trial Court came to conclusion that the plaintiffs had failed to prove that they were in possession of the disputed area and that they were dispossessed from the same within six months from the date of filing the suit. In the result, :4: the suit came to be dismissed. Therefore, plaintiffs have preferred this Revision Application. 4. Heard the learned counsel for the Parties. Perused the evidence led before the trial Court as well as the impugned judgment. 5. There is no dispute that the plaintiffs were inducted in the flat no.1A, which is infact a room, admeasuring 280 sq.ft. or so. About this flat no.1A, plaintiffs used to pay rent and the rent receipts were issued from time to time initially by mother and then by the defendant no.1. According to the pleadings of the plaintiffs and as per the evidence of the plaintiff no.1, the suit space was garden and she used to maintain the same. According to her in 1989, a document or letter Exhibit C was prepared and executed by her mother and was given to her. On that basis she was given exclusive possession of the suit space. Not only this her contention is that suit space, which is abutting flat no.1A itself was made a part of the tenanted premises. The learned trial Court has rightly noted that there is not a single rent receipt in which there is a reference of open space also alongwith the flat no.1A. Infact, rent receipts referred to rent for the ’room’ only. The defendant nos.1 and 2 in their evidence stated that even though signature on the letter Exhibit C has some similarities with the signature of :5: their mother but they could not say if signature on this document is really of their mother. Except evidence of the plaintiff no.1 that the said letter bears signature of her mother, there is no other evidence. No independent witness has been examined to prove that the such a letter Exhibit C was executed by mother and the plaintiffs were made tenants in respect of suit space or that suit space was included in the tenanted premises. 6. It is material to note that the plaintiffs are residing in the house, which was gifted to the plaintiff no.1 by her mother and that gift deed was got prepared and executed with help of the defendant no.2, who was working as Constituted Attorney for their mother. It is material to note that while the defendant nos.1 and 2 had no problem with the gift deed executed by their mother in favour of the plaintiff no.1 whereby a complete house was gifted to her but they have disputed the document marked Exhibit C. The plaintiffs have not produced any independent witness about the execution of the said letter. It appears to have been prepared in suspicious circumstances because existence of this document was never disclosed to the defendants nor it was made available to them. Even the defendant nos.1 and 2 were not associated with the preparation and execution of that document. In such circumstances, it will be difficult to place implicit reliance on the testimony of the plaintiff no.1 in respect of execution :6: of that document. There is nothing on record to show that after the suit space was allegedly added to the tenanted premises in the year 1989, rent was increased. If the rent would be increased, it could be a circumstance in favour of the plaintiffs’ case. 7. As per the evidence of the plaintiff no.1, there was a garden and she had appointed gardener and with the help of the gardener, she used to look after the same. However, it is material to note that the plaintiffs did not examine any such gardener nor the name of the gardener was disclosed. The plaintiffs have also not examined any independent witness from the neighbourhood or that vicinity. Thus, except the deposition of the plaintiff no.1 alone, there is nothing to show that the plaintiffs were ever in possession of the suit space and that there was garden on that space. The defendant nos.1 and 2 denied existence of any garden and the maintenance thereof by the plaintiffs. As per evidence of the defendant no.1, this was open space and part of the compound and it was used for parking cars of the occupants of the building. D.W.1 Riyaz, who is defendant no.2 also deposed that the open space in front of building had some flower pots but that open space is concretised in the year 1985 and at that time even the floor pots were removed and the space was used as car parking space. The learned counsel for the plaintiffs/applicants contended that in paragraph 3 of :7: the examination-in-chief, D.W.2 Rashid has admitted that in September, 1997 his sister and her husband, i.e., the plaintiffs had met him at the entrance of the garden when he was in garden. On the basis of this he tried to contend that it was an admission of existence of the garden. It is material to note that D.W.2, who is the defendant no.1, is residing in Meher Apartment, which is just near Kohinoor Building. According to him early in morning on one day in September, 1997, worker had informed him on the telephone that two persons were disturbing them while they were doing the work on the land of his flat no.1 in Kohinoor Building. Therefore, after a few minutes he came there and he had a talk with both the plaintiffs and at that time the plaintiff no.1 was shouting that it was her property and she had no access to it and that the defendant no.1 could not carry out the work. According to him, he told the plaintiff no.1 that open space was for all the tenants. After some quarrel, they left and went away. According to him about 3 hours after that the plaintiff no.1 went to the residence of the defendant no.1 with some solicitor. At that time, the defendant no.1 was in the garden and she met him at the entrance of the garden. The learned counsel for the respondents rightly pointed out that the garden referred to in the said sentence in paragraph 3 of the evidence of D.W.2 Rashid is the garden of his residence and not about the open space, which is in dispute. Taking into consideration the evidence on :8: record, there is no material to support the claim of the plaintiffs that they were in possession of the open space or that open space was garden and that it was in their exclusive possession. It is also not proved that they were forcibly dispossessed in September, 1997. 8. The whole case is based on the oral testimony of the plaintiff no.1 and the defendant nos.1 and 2. There is no oral or documentary evidence to support the claim of the plaintiffs. Document Exhibit C on which the plaintiffs have placed reliance is not properly proved either by examination of any independent witness or by the evidence of any handwriting expert, which could prove that the signature on the Exhibit C is that of the mother of the plaintiff no.1. The learned trial Court minutely considered the evidence led by the parties and came to conclusion that the plaintiffs had failed to prove their possession over the suit space and they are dispossessed by the defendants in September, 1997. I do not find any fault in the said findings. The scope of the revision is very limited. Revisional Court is not expected to interfere with the findings of the trial Court unless there is some material irregularity, illegality or perversity in the findings of facts. I do not find any such error or fault in the impugned judgment. Even if it is assumed that on the basis of evidence on record, two views are possible still merely because another view is also possible, revisional Court :9: is not expected to interfere in the findings of the trial Court unless it can be pointed out that the findings of the facts given by the trial Court are impossible. In view of this, I do not see any reason or justification to interfere in the impugned judgment or order. 9. In the result, Revision Application stands dismissed. 10. At this stage, the plaintiff no.2, who is present before the Court makes a request to stay this judgment so that the plaintiffs may approach the Supreme Court. However, in the present case, under Section 6 of the Specific Relief Act, plaintiffs came with the plea that they were already dispossessed. Hence, no purpose will be served by granting any stay. Therefore, the request stands rejected. (J.H.BHATIA,J.) (J.H.BHATIA,J.) (J.H.BHATIA,J.)