1 cra485.sxw ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION CIVIL REVISION APPLICATION NO.485 OF 2010 Ram Nayan Bhagwati Pandi & Others ...Applicants vs. Smt.Kamlesh Julka w/o Shri Kishan Chand Julka & Others ...Respondents Mr.Prasad Dhakephalkar, Sr.counsel with Sonal i/b M/s.Zohair & Co. for the applicants Mr.S.Nagvadaria i/b M/s.Mehta & Co. for respondent no.1 CORAM :A.S.OKA,J. DATE : OCTOBER 26, 2010 P.C. 1 Heard the learned senior counsel for the revision applicants. The revision applicants are the obstructionists in execution of a decree for possession a suit for possession filed by the contesting respondents. In the execution of the decree for possession, obstructionist notice was taken out by the original plaintiffs. The notice was contested by the applicants. Notice was made absolute. An appeal was preferred by the applicants which has been dismissed. 2 The learned senior counsel appearing for the applicants submitted that though there is voluminous evidence placed on record by the applicants to show that they were in possession right from the year 1947, the said evidence has been completely brushed aside by the Courts below only on the ground that the applicants came out with a plea of joint tenancy which was not raised in 2 cra485.sxw the Obstructionist notice. He invited the attention of the Court to the contentions raised in paragraph 6 of the reply to the Obstructionist notice and submitted that the said paragraph, if read as a whole, raises a defence that the applicants are joint tenants. He submitted that as against voluminous evidence to show that the applicants were in possession from the year 1947, the original plaintiffs have not adduced any evidence. He submitted that there was no proper service of summons on the original defendant. 3 I have given careful consideration to the submissions. The Courts below and especially the Appellate Court has found that in the reply filed by the applicants to the notice for removal of obstruction, it is stated they have been inducted in the suit premises by the original tenants prior to the year 1973 but in the evidence, a different stand was taken claiming joint tenancy. In the evidence, the applicants have not stated that they were inducted by the original tenant. The stand taken by the applicant no.4 (obstructionist no.6) is that his father along with four others were paying the rent to the landlord. The burden was on the applicants to prove that they had independent right to occupy the premises. The relevant portion of paragraph 6 of the reply filed by the applicants reads thus : 6 I say that we are deem tenant and protected under the Bombay Rent Act. I say that we are in possession prior to February 1973. We are inducted by the original tenant in the suit premises. We were paying the rent to the defendant. I say that we were having Ration Card, Election Roll, Electricity Bills, affidavit, correspondence, bank pass book and 3 cra485.sxw many other documents to show that we are in possession prior to February 1973. I say that we are duly protected under the Bombay Rent Act. I say that in fact, we are residing since 1942. I therefore submit that I am a direct tenant of the plaintiff. I say that we have paid the repairs and the rent of the building to the defendants. We crave leave to refer to rely upon the documents that we have paid the repair funds. I say that the plaintiff has filed the suit in collusion with the defendants, they have acted fraudulently. I say that in the title of the plaint the defendants address is shown not of the suit premises but some other business premises. I say that the plaintiff himself has made application to the B.E.S.T and got the bill transferred in his name, prior to filing of the suit. I say that it is pertinent to show that we have filed the suit having stamp No.R.A.DEC Suit No.1553 of 1993 in the same court against the Plaintiff and defendants. We took out the notice for injunction, which was served on the plaintiff. We say that the plaintiff appeared with his advocate, Mr.Mehta. The entire facts of the declaratory suit being filed by me, in the Small Causes Court was suppressed by the plaintiff and defendants. I say that the same advocate Mr.Mehta appeared against me on behalf of the plaintiff in Declaratory Suit filed being R.E.Decl.Suit no.1553/1993 by me. This itself shows that the present suit is filed collusively. We, therefore, submit that the obstructionist notice is not maintainable and liable to be dismissed with cost. We say that 4 cra485.sxw the plaintiff was aware that the present obstructionists are claiming tenancy in respect of the godown. We say that they have deliberately not joined as a defendant in the suit and tried to execute the decree against the obstructionists. We say that it is pertinent to note that the plaintiffs have accepted the rent from us, it is not correct that the defendant left the suit premises in the year 1970... (Underline supplied) 4 Reading it as a whole it is impossible to accept the submission that plea of joint tenancy is already raised in paragraph 6 of the reply. On the contrary, there is a specific pleading that the original tenant had inducted the applicants in the premises and they were paying rent to the original defendant. The plea of joint tenancy which is the only plea taken by the applicants in evidence is certainly inconsistent with the plea that the applicants were paying rent to the original defendant. Therefore, the Appellate Court was right in discarding the evidence of applicants which was totally inconsistent with their pleadings and in holding that mere possession was irrelevant. It is not possible to find fault with the concurrent orders passed by the Courts below holding that the applicants who were obstructionists have failed to prove their independent right to occupy the suit premises. Revision application is accordingly rejected. 5 A prayer is made for continuation of ad-interim relief. Ad-interim relief will continue to operate for a period of eight weeks from today subject to the condition that the applicants will not create any third party 5 cra485.sxw interests and will not part with possession in respect of the suit premises. JUDGE