1 fa1702 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION FIRST APPEAL NO.1702 OF 2011 Mohammed Yusuf Shaikh & Anr. ...Appellants vs. Mrs.Mebal Domnic D Souza & Anr. ...Respondents Mr.Anil Singh h/f Mr.Vimlesh Singh for the appellant Mr.C.P.Deogirikar a/w Ms A.S.Malvankar for the respondent no.1 CORAM : A.S.OKA,J. DATE : SEPTEMBER 30, 2011 P.C.: 1 This appeal was argued by the learned counsel for the appellant on 15 th September 2011. At that time, Mr.K.P.Ravi, learned counsel appeared for the appellant. When this Court was inclined to dismiss the appeal, he sought time to take instructions on the question whether a longer time to vacate the suit premises can be granted. Today, the learned counsel Mr.A.C.Singh instructed by Mr.Vimleshwar Singh,Advocate appeared in the appeal. Mr.Vimleshwar Singh states that he was not made aware of the fact that the appeal was fully argued on the earlier date. He states that the appellant has not informed him that the appeal was argued. Hence, no submissions have been made by the learned counsel who appeared today. 2 The appellants are the defendants in the suit filed by the first respondent. The case made out in 2 fa1702 the suit is that the first respondent is the owner of the property more particularly described in paragraph 1 of the plaint. It is contended by the first respondent that her deceased husband Domnic was the owner of the suit property in which the suit premises is situated which is a flat. Reliance is placed on Will dated 16 th January 1982 executed by the husband of the first respondent by which the suit property was bequeathed to her. Reliance is also placed on order passed by this Court in Testamentary petition under which the probate was granted in respect of the Will of the deceased. 3 The case made out in the plaint is that during the pendency of the probate petition filed by the executrix under the Will, it was found that one Mohammed Shaikh (first appellant) was in possession of the suit premises on the first floor of the suit property. Reliance is placed on Advocate s notice dated 26 th October 2006 issued by the first respondent to the appellants. The notice was replied by contending that the second appellant is a tenant in respect of the suit premises on monthly rent of Rs.100/-. By a letter dated 28 th November 2006, the Advocate for the first respondent informed the Advocate for the Appellants regarding grant of probate. The suit for possession of the suit premises is filed on the ground that the appellants were the trespassers. 4 Written statement was filed by the first appellant. In the written statement, the first appellant contended that the second appellant was a 3 fa1702 monthly tenant in respect of the suit premises and that he was a co-tenant. It was contended that the second appellant took the suit premises on tenancy from one Mr.Savio D Souza, the third defendant in the suit who was the eldest son of the original owner (husband of the appellant). It was contended that the second appellant was inducted in the suit premises on 12 th October 1999. The first appellant admitted that the husband of appellant died on 30 th April 1987. In short, the case of the appellants is that they are in possession as the tenants in respect of the suit premises who were inducted by Mr.Savio. 5 Trial Court framed issues which read thus : ISSUES FINDINGS 1)Does plaintiff prove that she is the owner of the suit premises? Affirmative 2)Does plaintiff prove that Defendants No.1 and 2 are Rank trespassers in the Suit premises? Affirmative 3)Whether plaintiff is entitled for reliefs for production of original documents against defendants in respect of the tenancy of the suit premises? Redundant 4)Does plaintiff prove that Defendant no.3 has no right to induct defendants No.1 and 2 in the suit premises? Affirmative 5)Is plaintiff entitled for order of Eviction against the defendants No.1 and 2? Affirmative 4 fa1702 6)Does plaintiff entitled for mesne profit against defendants No.1 and 2? Affirmative 7)What order and decree? As per final order. 6 The Trial Court held that on the basis of the probate, the first respondent has established her ownership over the suit premises. The Trial Court held that the third respondent (third defendant) had no authority to induct the appellants as tenants. Therefore, the impugned decree for possession was passed. 7 The submission canvassed by the learned Counsel Mr.Ravi on behalf of the appellants was that when tenancy was created by the third respondent being the son of the original owner, he had a right in the suit property and that he was entitled to create a tenancy. His submission is that the Will set up by the first respondent was proved long after the tenancy was created in favour of the appellants. He contended that in fact a power of attorney was executed by the husband of the first respondent in favour of the third respondent authorising him to deal with the suit property. His contention is that the third respondent being the heir of the original owner was authorised to create a tenancy. He relied upon the Agreement of tenancy executed by the third respondent and the aforesaid Power of attorney. The learned counsel for the first respondent supported the impugned Judgment and decree. 5 fa1702 8 I have perused the Judgment. I have perused the pleadings as well as notes of evidence. A specific case made out in the written statement was that the second appellant was inducted by the third respondent as a tenant on 12 th October 1999. Admittedly the husband of the first respondent was the owner of the property who died on 30 th April 1997. The original owner had executed a Will dated 16 th January 1982 under which a bequest was made of the suit property to the first respondent. A probate in respect of the said Will has been granted by this Court on 21 st March 2005. However, the Will operates from the date of the death of Testator. Therefore, the third respondent who has admittedly inducted the appellants was having no legal right to induct the appellants. By testamentary succession, the first respondent became the owner of the suit property and the suit premises situated therein. Thus, on the basis of the alleged tenancy created by the third respondent, the appellants have acquired no right, title or interest in the suit premises in question and they cannot claim any right, title or interest in respect of the suit premises. The third respondent had no right whatsoever in respecat of the suit premises. Power of Attorney executed by the husband of the first respondent in the name of the third respondent will not help the appellants as the Power of Attorney came to an end on death of the original owner. Moreover, the finding of the Trial Court is that the said power of attorney and the Tenancy Agreement set up by the Appellants have not been proved. Thus, the first respondent established 6 fa1702 the title and the appellants failed to establish any right to occupy the suit premises and therefore, a decree of mandatory injunction has been passed directing the appellants to remove themselves and hand over possession of the suit premises to the first respondent. Hence, there is no merit in the appeal and the same is accordingly dismissed with no order as to costs. 9 Civil Application no.3701 of 2011 does not survive and the same is disposed of. 10 Ad-interim relief of stay granted on 15 th September 2011 will continue to operate for a period of eight weeks from today. JUDGE