1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 313 OF 1991 FIRST APPEAL NO. 313 OF 1991 FIRST APPEAL NO. 313 OF 1991 Ramesh Vasu Warang (deceased ) through heirk and legal representatives) 1a. Parvati Ramesh Warang 1b. Pranesh Ramesh Warang ) 1c. Kunal Ramesh Warang ) all residing at 1/302, Sneha Nagar, ) Virar - Agashi Road, Virar (W), ) Thane District, Virar-401 303. ).. Appellant Versus 1) Bashir Ahmed Khan, ) (deceased by his heirs and ) legal representatives) ) 1A) Smt. Amina w/o Bahsir Ahmed Khan) 1B Nashir Ahmed Khan ) Nos.1A and 1B residing at ) "Narendra Park Building, ) Opposi9te Abhishek Building, ) Naya Nagar, Miral Road (East) ) Thane Dist. ) 2 ,.. Respondent Mr. V.A.Thorat, Advocate for the appellant. CORAM: J.H.BHATIA,J. CORAM: J.H.BHATIA,J. CORAM: J.H.BHATIA,J. DATE: 28th July, 2008. DATE: 28th July, 2008. DATE: 28th July, 2008. JUDGMENT JUDGMENT JUDGMENT 1. This Appeal is preferred against the decree of perpetual injunction passed by the City Civil Court, Bombay in S.C. Suit No.1392 of 1974 in favour of the plaintiff-respondent and against the defendant, who is the present appellant. 2. To state in brief, it is the case of the plaintiff/respondent that he is carrying on business in the name and style of "Khan Cycle Shop" in a shop at 3rd Koli Lane, 5-7 Manekji Street, Colaba,Bombay. He was inducted in the y Musahai shop about 10 years before filing of the suit by Musabhai. The plaintiff had allowed one Gaurishankar to sell Ragda in a space admeasuring 1-1/2’ x 4’ in a corner of his shop on monthly compensation of Rs.15/- where Gaurishankar had kept a Khoka or stall. As Gaurishankar had failed to pay the rent, the plaintiff had given a notice to him on 3 12.7.1973 and also lodged a report with the Colaba Police Station on 19.7.1973 against Gaurishankar for his illegal activities. Gaurishankar died on 10.12.1973 at St. George Hospital. He did not leave behind any heir or legal representative. According to the plaintiff, the defendant is residing on the first floor of the building in which the plaintiff’s shop is situated. The defendant threatened the plaintiff that he would forcibly take possession of the space which was previously occupied by Gaurishankar. Therefore, the plaintiff had lodged a report with the Colaba Police Station on 13.12.1973. Inspite of that, the defendant was giving threats through some men kept around the space of the said shop. Apprehending that the defendant would take forcible possession of the space and the Khoka, the plaintiff filed the suit for perpetual injunction against him. 3. The defendant/appellant contested the suit by filing written statement. According to him, the plaintiff had no right or title over the property. He denied that the plaintiff had allowed the said Gaurishankar to sell ragda in the suit space admeasuring 1-1/2’ x 4’. According to him, his father was in possession of the said space and the Khoka and was carrying on business in it as a direct tenant of the 4 landlord Chandiramani and he was carrying on business of biscuits and confectioneries in the said Khoka for about 10 years. According to him, after the death of his father on or about 19th April, 1971, he himself is in exclusive possession and carrying on business without any obstruction. He denied all the adverse allegations against him According to him, as he himself is in exclusive possession, the plaintiff is not entitled to any relief of perpetual injunction. 4. The learned trial Court framed the issues and the parties were called upon to lead evidence. The plaintiff examined himself and the PW-1 Bashir Ahmed Khan and PW-2 - Upkarsing Sahani in support of his claim. The defendant also examined himself as DW-2 and also DW-1 - Ramsing Rana who had prepared the sketch of the suit premises. The evidence of DW-1 - Ramsing Rana is not of much use. The Commissioner was appointed to make spot inspection. The trial Court, after going through the oral and documentary evidence on record as well as the Commissioner’s report, came to conclusion that the plaintiff had proved his possession over the suit space and the defendant had failed to prove that he is in occupation of the same since the time of his father as a direct tenant from the landlord. In the result, the suit came to be decreed against the 5 defendant. 5. Heard Mr. Thorat, the learned Counsel fr the defendant-appellant.None appears for the plaintiff-respondent. I have perused the impugned judgment and oral and documentary evidence with the help of Mr.Thorat. 6. The following points arise for my consideration and I record my findings against them. POINT FINDING i) Whether the plaintiff Yes had proved his possession over the suit space? ii) Whether the plaintiff has Yes proved that the defendant was trying to take forcible possession of the suit space ? 7. From the evidence on record, it is clear that the shop in occupation of the plaintiff is situated on the land belonging to the Municipal Corporation. From the evidence, it appears that the shop was actually allotted by the Municipal Corporation to one Shah Hira Rupa, but the plaintiff admits that he was not inducted by Shah Hira Rupa. According to him, he was inducted in the shop of one Musabhai and he was paying rent to him. The agreement had taken place between him and Musabhai, 6 whereby he was to pay rent of Rs.55/- per month. He produced 3 rent receipts dated 2.9.1965, 5.1.1966 and 7.2.1966 collectively marked Ex."A". He admitted that the receipts were issued by Musabhai, but were actually signed by the uncle of Musabhai. His oral evidence is also supported by the documentary evidence to show that he was inducted by Musabhai as a tenant. The record reveals that Musabhai had filed suit No.4745 of 1966 in the City Civil Court against the plaintiff. The certified copy of the plaint in the suit is marked Exhibit "B". In that suit, an order was passed directing the plaintiff to deposit rent in the Court and accordingly the plaintiff was depositing rent in the Court. According to him, later on, the suit was dismissed as Musabhai did not appear at the time of hearing. Dismissal of that suit is not of much importance for this matter. That suit was filed on 7.2.1974 and the documentary evidence reveals that at least 8 years before filing of this suit, Musabhai had inducted the present plaintiff. This material shows that the plaintiff is in possession of the suit shop as a tenant of Musabhai. 8. As per the evidence of the plaintiff, his shop is having area enclosed with 2 walls of 12 feet each and the frontage of 15 feet. According to him, about 3-1/2 7 months after he had taken shop on rent from Musabhai, he allowed Gaurishankar Ragdawala to carry on business on the space of 1-1/2’ x 4’ which is part of the shop in the front portion of the shop. According to him, initially, Gaurishankar was sitting in the open space and then he brought and kept a teapoy on this space. After that he fixed a stad on the teapoy and used to sell chocolates, peppermint, etc. Thereafter he had encroached it so that he could keep his articles in the Khoka. This was also done with his permission. As per the evidence of the plaintiff, about 4 to 5 years after occupying that space, Gaurishankar began to sell Ganja. When the plaintiff noticed this, he gave a notice to Gaurishankar and also he gave a written complaint to the Inspector of Police, Anti Goonda Branch, Head Police Office, Crawford Market, Bombay. Copies of these documents are produced on record and are marked Exhibits.B & C. 9. PW-2 Upkarsing is a neighbour. He also carries on business of cycle shop. In fact, he was examined to prove that letter marked Ex.X was brought by Gaurishankar of his father and he himself had signed it. The trial Court did not give much importance to that letter. Therefore, it is not necessary to go into that aspect. However, it is material to note that PW-2 8 Upkarsing deposed that he was acquainted with Gaurishankar as he was doing business on a Bakda kept in the plaintiff’s shop. He deposed that Gaurishankar used to come to him on holidays along with the plaintiff. He also deposed that Gaurishankar told his father that plaintiff had given a notice to quit and also that he would pay rent regularly to the plaintiff. This part of the evidence of Upkarsing is material. Thus, the evidence of the plaintiff is supported by an independent witness to show that Gaurishankar was inducted to carry on business on a small space in the front which is part of the shop of the plaintiff. 10. The trial Court also noted that as per the Commissioner’s report, there was a flooring in the shop of the plaintiff and similar flooring is below the khoka of Gaurishankar. It is noted that there appears a common flooring for the shop and the space in dispute. This also provides corroboration to the plea of the plaintiff that the said space was part of his shop. 11. The defendant examined himself as a defence witness. According to him, his father was inducted as a tenant in the suit space by landlord Chandiramani and till 1972, rent was paid to him. However, after that nobody came to collect the rent therefore, he has 9 stopped paying rent. Neither said Chandiramani was examined nor any other independent witness was examined to support this plea nor the defendant produced any receipt or other documentary evidence to provide corroboration to his plea that his father was inducted as a tenant by said Chandiramani or that he or his father was in occupation of the premises for about 10 years or so before filing the suit in 1974. Thus, except the bare word of the defendant, there is no material to support his claim over the suit space. 12. Mr. Thorat, the learned counsel for the appellant contended that though according to the plaintiff, Shah Hira Rupa was the allottee of the shop, the plaintiff was not inducted in the shop by said Shah Hira Rupa, therefore, he has failed to prove the title or right to occupy the shop or the suit space. He urged that in such circumstances, he cannot claim a decree of perpetual injunction against the defendant. I am unable to accept this contention. It is well settled position of law that a person who is in possession of the immovable property can protect the possession against everybody except the person having better title. In fact, there is no dispute that the plaintiff is in occupation of suit shop. In the present case, according to the plaintiff, he was inducted by Musabhai and this 10 is supported by oral and documentary evidence. This itself proves his possession over the shop. Dispute is only about the 1-1/2’ x 4’ space, which is part of the front portion of the shop. There is sufficient oral and documentary evidence that the plaintiff had allowed Gaurishankar to use that space for business of Ragda. There is no material except bare word of the defendant to prove that he was even in possession of the space.The defendant cannot interfere in his possession of the plaintiff as he has failed to prove better right or title over the property. 13. Having gone through the oral and documentary evidence, I find that the trial court has rightly come to conclusion that the suit space is part of the shop in occupation of the plaintiff and, therefore, the plaintiff is in possession of the same. The plaintiff admits that the Khoka on that space does not belong to him because it was brought there by Gaurishankar who is no more alive. He claims possession of the space under the Khoka. The trial Court rightly came to conclusion that the defendant has failed to establish his right over the suit space or the Khoka standing no it. I find no fault in the impugned judgment and decree. 14. For the aforesaid reasons, the Appeal stands 11 dismissed with costs. 15. The Court Receiver had taken the possession of the property and had given to the defendant/appellant as agent. He shall take back the possession from the defendant and hand over the possession to the plaintiff within one month from this date. As per the report from the Receiver, the defendant has not paid the royalty after 2002 and therefore, the Court Receiver shall take steps to recover the arrears of royalty from the defendant till the date on which the actual possession is taken from him. The royalty amount shall be paid to the plaintiff. (J.H.BHATIA,J.) (J.H.BHATIA,J.) (J.H.BHATIA,J.)