1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1829 OF 2008 Ramji Sakharam Rao .. Petitioner Versus Abdullah Majid Saheb Jendi since deceased by Lrs. .. Respondents Mr.Mohan N. Dhamal for petitioner Mr.R.M.Salunkhe for respondents CORAM : S.C.DHARMADHIKARI, J. DATE : 24th March 2008 P.C. . This petition is filed by the original defendants in the suit. Original plaintiffs are impleaded as respondents to this petition. They 2 had filed R.A.E. & R. Suit no.609/1451 of 1993 in the trial court. The trial court dismissed the suit for possession by its judgement dated 1st October 2002. Aggrieved by the dismissal, original plaintiffs carried the matter in appeal before the appellate bench of the Court of Small Causes being Appeal No.663 of 2003. The appeal was allowed on 14th December 2007 and decree for eviction was passed against the present petitioners original defendants and that is how this petition. 2. It is urged by Mr.Dhamal that one Mr.Abdulla was the original plaintiff. He claimed to be owner and landlord in respect of the building known as Abdullah Manzil, Kurla West. He relied upon purchase deed dated 28th April 1983 through one Mehboob Ali Kanji. Thus, the case in the petition is that Abdullah Jendi was the original owner. He was the original plaintiff and the suit was prosecuted by the said 3 deceased Jendi but upon its dismissal he expired and the appeal was filed and prosecuted by his heirs. It is contended that one Shamina Khoja Ashrafibi Karimbi Rehman as vendor has executed deed of conveyance in favour of Mohammedali Chawl Welfare Association. Petitioners name appears at Sr.No.1 at Schedule II to this conveyance. The conveyance proceeds to state that father of these vendors late Mohammed Ali Kanji was the owner and legally seized and possessed the land more particularly described therein and he expired on 17th July 1973 leaving behind his widow and three daughters. He also left behind son Mehboob. The property/land came to the widow so also the son. The son was wayward and had vices. One Abdullah Jendi took advantage of this and got a conveyance deed executed in his favour being 22nd April 1998. This deed was relied upon by Abdullah Jendi to base his claim of ownership. The vendors to the conveyance deed in favour of chawl association, 4 their mother and sisters filed a suit in the City Civil Court being Suit No.5711 of 1987. The decree and order was passed on 31st March 1995 demarcating shares of the parties to that suit. Abdullah got only 35% of the right of Mehboob whereas rest of the rights 65% remained with the vendors of residents chawl association. It is in such circumstances that the vendors decided to sell their undivided share of 65% to the residents association and more particularly those who are tenants in respect of the suit chawl. 3. Mr.Dhamal submits that in such circumstances it was doubtful as to whether the respondents would be said to be owners of the entire property. They could not have filed suit to vacate the present petitioner. Even if the same could have been filed, it could not have been prosecuted. Therefore, all findings are liable to be set aside. 5 4. The original plaintiff supported the subject decree. 5. After this matter was argued for some time, Mr.Dhamal upon taking instructions from the petitioner, who is present in court, makes a statement that a suit being Suit No.3191 of 2007 is filed in the City Civil Court by the Tenants/residents’ association and the same is pending. The said suit is filed for partition. An application for interim relief was made therein but the same was rejected. An appeal from order has been filed against that order of trial court rejecting interim relief and the same is pending. Mr.Dhamal states that the present respondents are parties to the suit so also to the appeal from order. He submits that the decree passed in the subject suit of the respondents by the Small Causes Court cannot be given effect to in the light of the dispute pending between the parties. He submits that 6 respondents are parties to the proceedings in City Civil Court as well. 6. In the above circumstances, he states that the petitioner has instructed him not to press this petition, if this Court issues appropriate clarification and protects petitioner’s rights in the City Civil Court suit. Respondents have opposed any blanket protection. 7. In the light of the statement of Mr.Dhamal, this petition is dismissed by the following order:- (a) W.P.1829 of 2008 stands dismissed and judgement and order of the lower appellate court is confirmed, subject to petitioner’s rights and contentions in Suit No.3191 of 2007 being not adversely affected. Appellate Court’s decree is without prejudice to the rights and 7 contentions of both sides in the special civil suit. However, the decree shall not be executed for a period of one year from today. Within this period, if the petitioners and other tenants are able to obtain any orders to protect their possession, then, the execution shall abide by such directions as are issued in that behalf. However, if no orders are passed in the Suit No.3191 of 2007, either by the trial court or by this Court, within a period of one year from today, then the decree passed shall become executable and enforceable forthwith. Respondents will be at liberty to adopt proceedings for executing the same. (b) Petitioner not to be evicted from the suit premises for a period of one year provided he executes an undertaking 8 in this Court setting out that he and his family members alone are in possession and that no third party rights shall be created in any manner. Till the period prescribed above, without prejudice to the rights and contentions of the petitioners, they shall pay monthly compensation quantified at Rs.25 per month and pay arrears thereof. 8. Undertaking to be executed within 15 days from today. In default, no protection will be granted and despite pendency of the suit, the City Civil Court decree passed by the appellate bench of Small Causes Court shall become executable and enforceable. If undertaking is filed, decree not to be executed for a period of one year from today. 9 (S.C.Dharmadhikari, J)