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 ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO. 1849 OF 1989 SUIT NO. 1849 OF 1989 SUIT NO. 1849 OF 1989 1. NAZMABEGUM widow of Abdul Samad ) 1. NAZMABEGUM widow of Abdul Samad ) 1. NAZMABEGUM widow of Abdul Samad ) Shaikh of Bombay Indian ) Shaikh of Bombay Indian ) Shaikh of Bombay Indian ) Inhabitant, age 36 years, ) Inhabitant, age 36 years, ) Inhabitant, age 36 years, ) occupation household work, ) occupation household work, ) occupation household work, ) widow of the deceased Plaintiff.) widow of the deceased Plaintiff.) widow of the deceased Plaintiff.) 2. SHAIKH SANWAR HUSSAIN ) 2. SHAIKH SANWAR HUSSAIN ) 2. SHAIKH SANWAR HUSSAIN ) son of Abdul Samad Shaikh, ) son of Abdul Samad Shaikh, ) son of Abdul Samad Shaikh, ) age about 17 years, Occupation ) age about 17 years, Occupation ) age about 17 years, Occupation ) Nil, son of the deceased ) Nil, son of the deceased ) Nil, son of the deceased ) Plaintiff. ) Plaintiff. ) Plaintiff. ) 3. SHAIKH KAMAL son of Abdul ) 3. SHAIKH KAMAL son of Abdul ) 3. SHAIKH KAMAL son of Abdul ) Samad Shaikh, age 16 years, ) Samad Shaikh, age 16 years, ) Samad Shaikh, age 16 years, ) occupation nil, son of the ) occupation nil, son of the ) occupation nil, son of the ) deceased Plaintiff. ) deceased Plaintiff. ) deceased Plaintiff. ) 4. SHAIKH NASIR HUSSAIN son of ) 4. SHAIKH NASIR HUSSAIN son of ) 4. SHAIKH NASIR HUSSAIN son of ) Abdul Samad Shaikh, age 14 ) Abdul Samad Shaikh, age 14 ) Abdul Samad Shaikh, age 14 ) years, occupation nil, son ) years, occupation nil, son ) years, occupation nil, son ) of the deceased Plaintiff. ) of the deceased Plaintiff. ) of the deceased Plaintiff. ) 2 5. SHAIKH ALIHUSSAIN son of ) 5. SHAIKH ALIHUSSAIN son of ) 5. SHAIKH ALIHUSSAIN son of ) Abdul Samad Shaikh, age 12 ) Abdul Samad Shaikh, age 12 ) Abdul Samad Shaikh, age 12 ) years occupation student, ) years occupation student, ) years occupation student, ) son of the deceased Plaintiff. ) son of the deceased Plaintiff. ) son of the deceased Plaintiff. ) 6. ASHA BEGUM daughter of Abdul ) 6. ASHA BEGUM daughter of Abdul ) 6. ASHA BEGUM daughter of Abdul ) Samad Shaikh, age 9 years, ) Samad Shaikh, age 9 years, ) Samad Shaikh, age 9 years, ) occupation nil, daughter of ) occupation nil, daughter of ) occupation nil, daughter of ) deceased Plaintiff. ) deceased Plaintiff. ) deceased Plaintiff. ) 7. SHAIKH ABDUL QUADER son of ) 7. SHAIKH ABDUL QUADER son of ) 7. SHAIKH ABDUL QUADER son of ) Abdul Samad Shaikh, age 7 years ) Abdul Samad Shaikh, age 7 years ) Abdul Samad Shaikh, age 7 years ) occupation student, son of the ) occupation student, son of the ) occupation student, son of the ) deceased Plaintiff ) deceased Plaintiff ) deceased Plaintiff ) Plaintiff Nos. 2 to 7 minors by ) Plaintiff Nos. 2 to 7 minors by ) Plaintiff Nos. 2 to 7 minors by ) their natural guardian mother ) their natural guardian mother ) their natural guardian mother ) Nazmabegum Abdul Samad Shaikh, ) Nazmabegum Abdul Samad Shaikh, ) Nazmabegum Abdul Samad Shaikh, ) all residing at the above ) all residing at the above ) all residing at the above ) address applicants are the ) address applicants are the ) address applicants are the ) only Legal heirs of the ) only Legal heirs of the ) only Legal heirs of the ) deceased Plaintiff. ) deceased Plaintiff. ) deceased Plaintiff. ) residing at 10/A/1, Durlabh ) residing at 10/A/1, Durlabh ) residing at 10/A/1, Durlabh ) Bhawan, C Block, Jalbai Estate, ) Bhawan, C Block, Jalbai Estate, ) Bhawan, C Block, Jalbai Estate, ) Charni Road, Bombay 400 004. )..PLAINTIFFS Charni Road, Bombay 400 004. )..PLAINTIFFS Charni Road, Bombay 400 004. )..PLAINTIFFS VERSUS VERSUS VERSUS 3 1a. MANI BURJORJI POCHKHANAWALLA ) 1a. MANI BURJORJI POCHKHANAWALLA ) 1a. MANI BURJORJI POCHKHANAWALLA ) 1b. KETAYAM CYRUS PITHAWALA ) 1b. KETAYAM CYRUS PITHAWALA ) 1b. KETAYAM CYRUS PITHAWALA ) claiming to allged legal ) claiming to allged legal ) claiming to allged legal ) heirs and alleged be ) heirs and alleged be ) heirs and alleged be ) residing at Durlabh Bhavan, ) residing at Durlabh Bhavan, ) residing at Durlabh Bhavan, ) ‘C’ Block Ground Floor, ) ‘C’ Block Ground Floor, ) ‘C’ Block Ground Floor, ) Jalbhai Street, Mumbai-4. )..DEFENDANTS Jalbhai Street, Mumbai-4. )..DEFENDANTS Jalbhai Street, Mumbai-4. )..DEFENDANTS Mr.H.S.S.Murthy i/b. S.S.Tammanavar for Plaintiffs. Mr.H.S.S.Murthy i/b. S.S.Tammanavar for Plaintiffs. Mr.H.S.S.Murthy i/b. S.S.Tammanavar for Plaintiffs. Mrs. V.V.Thorat for Defendants. Mrs. V.V.Thorat for Defendants. Mrs. V.V.Thorat for Defendants. CORAM: S.K.SHAH,J. CORAM: S.K.SHAH,J. CORAM: S.K.SHAH,J. JUDGMENT RESERVED ON: 23rd June,2005. JUDGMENT RESERVED ON: 23rd June,2005. JUDGMENT RESERVED ON: 23rd June,2005. JUDGMENT PRONOUNCED ON: 06th JULY,2005. JUDGMENT PRONOUNCED ON: 06th JULY,2005. JUDGMENT PRONOUNCED ON: 06th JULY,2005. ORAL JUDGMENT : ORAL JUDGMENT : ORAL JUDGMENT : 1. This is a suit for declaration that the plaintiff 1. This is a suit for declaration that the plaintiff 1. This is a suit for declaration that the plaintiff is entitled for possession of the suit premises in his is entitled for possession of the suit premises in his is entitled for possession of the suit premises in his own right as against the defendant and for possession own right as against the defendant and for possession own right as against the defendant and for possession of Room Nos.2 and 3 of suit premises, being tenement of Room Nos.2 and 3 of suit premises, being tenement of Room Nos.2 and 3 of suit premises, being tenement No.10/A/1. No.10/A/1. No.10/A/1. 2. The plaintiffs allege that the tenement No.10/A/1 2. The plaintiffs allege that the tenement No.10/A/1 2. The plaintiffs allege that the tenement No.10/A/1 consists of three rooms having a total area of about consists of three rooms having a total area of about consists of three rooms having a total area of about 18 1/2’ x 28’ situate on the ground floor of the 18 1/2’ x 28’ situate on the ground floor of the 18 1/2’ x 28’ situate on the ground floor of the 4 building known as "Durlabh Bhawan" at Jalbai Estate, building known as "Durlabh Bhawan" at Jalbai Estate, building known as "Durlabh Bhawan" at Jalbai Estate, Charni Road, Bombay. The said tenement was held by Charni Road, Bombay. The said tenement was held by Charni Road, Bombay. The said tenement was held by the original plaintiff on joint tenancy basis with the original plaintiff on joint tenancy basis with the original plaintiff on joint tenancy basis with right of survivorship with his brother who died in or right of survivorship with his brother who died in or right of survivorship with his brother who died in or about 1984 and as such the original plaintiff became about 1984 and as such the original plaintiff became about 1984 and as such the original plaintiff became the sole tenant. The Plaintiffs allege that the the sole tenant. The Plaintiffs allege that the the sole tenant. The Plaintiffs allege that the original defendant claimed to be the brother of one original defendant claimed to be the brother of one original defendant claimed to be the brother of one Feroze Mallu who was earlier occupying the room Feroze Mallu who was earlier occupying the room Feroze Mallu who was earlier occupying the room adjacent to the suit premises and that room was adjacent to the suit premises and that room was adjacent to the suit premises and that room was numbered as 10/B/2 on the ground floor of the said numbered as 10/B/2 on the ground floor of the said numbered as 10/B/2 on the ground floor of the said building. The said Feroze Mallu died on or about building. The said Feroze Mallu died on or about building. The said Feroze Mallu died on or about 16.7.1988. 16.7.1988. 16.7.1988. 3. The Plaintiffs further allege that in the year 3. The Plaintiffs further allege that in the year 3. The Plaintiffs further allege that in the year 1979, the original plaintiff had filed the Suit in the 1979, the original plaintiff had filed the Suit in the 1979, the original plaintiff had filed the Suit in the Bombay City Civil Court, being Suit No.5283 of 1979 Bombay City Civil Court, being Suit No.5283 of 1979 Bombay City Civil Court, being Suit No.5283 of 1979 against Feroze Mallu for restraining him from entering against Feroze Mallu for restraining him from entering against Feroze Mallu for restraining him from entering upon the suit premises and interfering with the repair upon the suit premises and interfering with the repair upon the suit premises and interfering with the repair work being carried out in respect of one room of the work being carried out in respect of one room of the work being carried out in respect of one room of the suit premises as the original defendant was trying to suit premises as the original defendant was trying to suit premises as the original defendant was trying to take advantage of the same and was falsely claiming take advantage of the same and was falsely claiming take advantage of the same and was falsely claiming that the original plaintiff was possessing only one that the original plaintiff was possessing only one that the original plaintiff was possessing only one room. The plaintiffs further allege that in the year room. The plaintiffs further allege that in the year room. The plaintiffs further allege that in the year 1980, the mother of the original plaintiff acquired 1980, the mother of the original plaintiff acquired 1980, the mother of the original plaintiff acquired tenancy rights in respect of Room No.10/B/2 which was tenancy rights in respect of Room No.10/B/2 which was tenancy rights in respect of Room No.10/B/2 which was in the name of late Feroze Mallu. As such, the in the name of late Feroze Mallu. As such, the in the name of late Feroze Mallu. As such, the landlords transferred the rent receipts in the name of landlords transferred the rent receipts in the name of landlords transferred the rent receipts in the name of 5 the mother of the original plaintiff. They further the mother of the original plaintiff. They further the mother of the original plaintiff. They further allege that Feroze Mallu was a bachelor and he was allege that Feroze Mallu was a bachelor and he was allege that Feroze Mallu was a bachelor and he was aged and ailing and, therefore, did not require whole aged and ailing and, therefore, did not require whole aged and ailing and, therefore, did not require whole room. It is further alleged that the landlords room. It is further alleged that the landlords room. It is further alleged that the landlords suggested that the original plaintiff should allow the suggested that the original plaintiff should allow the suggested that the original plaintiff should allow the ailing Feroze Mallu to accomodate one cot in the ailing Feroze Mallu to accomodate one cot in the ailing Feroze Mallu to accomodate one cot in the tenement occupied by the original plaintiff, i.e. the tenement occupied by the original plaintiff, i.e. the tenement occupied by the original plaintiff, i.e. the suit premises. Accordingly, such arrangement was made suit premises. Accordingly, such arrangement was made suit premises. Accordingly, such arrangement was made purely on humanitarian grounds and, therefore, Feroze purely on humanitarian grounds and, therefore, Feroze purely on humanitarian grounds and, therefore, Feroze Mallu had surrendered possession of Room No.10/B/2 to Mallu had surrendered possession of Room No.10/B/2 to Mallu had surrendered possession of Room No.10/B/2 to the landlords who, in turn, handed it over to the the landlords who, in turn, handed it over to the the landlords who, in turn, handed it over to the original plaintiff’s mother. original plaintiff’s mother. original plaintiff’s mother. 4. The plaintiffs further allege that the B.M.C. had 4. The plaintiffs further allege that the B.M.C. had 4. The plaintiffs further allege that the B.M.C. had issued a notice under Section 351 of the B.M.C. Act issued a notice under Section 351 of the B.M.C. Act issued a notice under Section 351 of the B.M.C. Act alleging that walls of the Room No.10/A/1 were alleging that walls of the Room No.10/A/1 were alleging that walls of the Room No.10/A/1 were constructed illegally. The original plaintiff had constructed illegally. The original plaintiff had constructed illegally. The original plaintiff had challenged that notice in the Bombay City Civil Court challenged that notice in the Bombay City Civil Court challenged that notice in the Bombay City Civil Court by a suit No.6033 of 1979. It is further alleged that by a suit No.6033 of 1979. It is further alleged that by a suit No.6033 of 1979. It is further alleged that the suit structure was regularised by the B.M.C. with the suit structure was regularised by the B.M.C. with the suit structure was regularised by the B.M.C. with the intervention of the Corporator. the intervention of the Corporator. the intervention of the Corporator. 5. The plaintiffs allege that the original plaintiff 5. The plaintiffs allege that the original plaintiff 5. The plaintiffs allege that the original plaintiff and his brother have been in possession of the suit and his brother have been in possession of the suit and his brother have been in possession of the suit premises as tenants. Two months after the death of premises as tenants. Two months after the death of premises as tenants. Two months after the death of Feroze Mallu on 16.7.1988, the defendants came on the Feroze Mallu on 16.7.1988, the defendants came on the Feroze Mallu on 16.7.1988, the defendants came on the scene along with the police falsely claiming that the scene along with the police falsely claiming that the scene along with the police falsely claiming that the 6 original plaintiff had broken open some lock on the original plaintiff had broken open some lock on the original plaintiff had broken open some lock on the room allegedly used by Feroze and on that count a room allegedly used by Feroze and on that count a room allegedly used by Feroze and on that count a complaint was lodged with the police and the police complaint was lodged with the police and the police complaint was lodged with the police and the police had arrested the original plaintiff on the charge for had arrested the original plaintiff on the charge for had arrested the original plaintiff on the charge for offences under sections 451, 454 and 457 of the I.P.C. offences under sections 451, 454 and 457 of the I.P.C. offences under sections 451, 454 and 457 of the I.P.C. The plaintiffs allege that there was conspiracy to The plaintiffs allege that there was conspiracy to The plaintiffs allege that there was conspiracy to snatch away the suit premises from him by the snatch away the suit premises from him by the snatch away the suit premises from him by the defendant. The plaintiffs allege that the original defendant. The plaintiffs allege that the original defendant. The plaintiffs allege that the original plaintiff was a lawful tenant of the suit premises and plaintiff was a lawful tenant of the suit premises and plaintiff was a lawful tenant of the suit premises and was in exclusive and continuous possession thereof was in exclusive and continuous possession thereof was in exclusive and continuous possession thereof since 1979. The original defendant was a rank since 1979. The original defendant was a rank since 1979. The original defendant was a rank trespasser in the suit premises and as the defendant trespasser in the suit premises and as the defendant trespasser in the suit premises and as the defendant tried to take illegal possession through police, he tried to take illegal possession through police, he tried to take illegal possession through police, he filed this suit for the aforesaid reliefs. filed this suit for the aforesaid reliefs. filed this suit for the aforesaid reliefs. 6. The original defendant resisted the suit by his 6. The original defendant resisted the suit by his 6. The original defendant resisted the suit by his written statement dated 8.4.1994 which has been written statement dated 8.4.1994 which has been written statement dated 8.4.1994 which has been adopted by the present defendants. While denying that adopted by the present defendants. While denying that adopted by the present defendants. While denying that the suit tenement consists of the rooms having total the suit tenement consists of the rooms having total the suit tenement consists of the rooms having total area of 18 1/2 x 28. The defendants contend that the area of 18 1/2 x 28. The defendants contend that the area of 18 1/2 x 28. The defendants contend that the suit premises which bears Room No.10/A/1 consists only suit premises which bears Room No.10/A/1 consists only suit premises which bears Room No.10/A/1 consists only of one room admeasuring approximately 80 sq. ft. The of one room admeasuring approximately 80 sq. ft. The of one room admeasuring approximately 80 sq. ft. The defendant is in possession of rent receipts issued to defendant is in possession of rent receipts issued to defendant is in possession of rent receipts issued to the defendants’ deceased brother. The defendants the defendants’ deceased brother. The defendants the defendants’ deceased brother. The defendants contend that original defendant and his brother were contend that original defendant and his brother were contend that original defendant and his brother were in possession and occupation of two rooms bearing in possession and occupation of two rooms bearing in possession and occupation of two rooms bearing No.10/A/2 and 10/C/2 and not merely one room. They No.10/A/2 and 10/C/2 and not merely one room. They No.10/A/2 and 10/C/2 and not merely one room. They 7 contend that the original plaintiff had taken out contend that the original plaintiff had taken out contend that the original plaintiff had taken out Notice of Motion in his suit no.5283 of 1979. Notice of Motion in his suit no.5283 of 1979. Notice of Motion in his suit no.5283 of 1979. However, the same was decided against the plaintiffs However, the same was decided against the plaintiffs However, the same was decided against the plaintiffs on evidence. The plaintiffs had appealed against that on evidence. The plaintiffs had appealed against that on evidence. The plaintiffs had appealed against that decision. However, the said Appeal also was decision. However, the said Appeal also was decision. However, the said Appeal also was dismissed. They contend that it is the plaintiff who dismissed. They contend that it is the plaintiff who dismissed. They contend that it is the plaintiff who had trespassed on the premises occupied by the had trespassed on the premises occupied by the had trespassed on the premises occupied by the deceased brother of the defendant who was deceased brother of the defendant who was deceased brother of the defendant who was old and feeble. They contend that the intention of old and feeble. They contend that the intention of old and feeble. They contend that the intention of the original plaintiff was to usurp the defendant’s the original plaintiff was to usurp the defendant’s the original plaintiff was to usurp the defendant’s two rooms by hook or crook. They further contend that two rooms by hook or crook. They further contend that two rooms by hook or crook. They further contend that on the death of Feroze Mallu, his brother had been in on the death of Feroze Mallu, his brother had been in on the death of Feroze Mallu, his brother had been in possession of the two rooms and he had put his lock to possession of the two rooms and he had put his lock to possession of the two rooms and he had put his lock to the two rooms. They denied creation of any tenancy in the two rooms. They denied creation of any tenancy in the two rooms. They denied creation of any tenancy in favour of the deceased plaintiff’s mother with regard favour of the deceased plaintiff’s mother with regard favour of the deceased plaintiff’s mother with regard to room No.10/B/2 in the year 1980. They contend that to room No.10/B/2 in the year 1980. They contend that to room No.10/B/2 in the year 1980. They contend that Room No.10/A/1 was carved out of the original room Room No.10/A/1 was carved out of the original room Room No.10/A/1 was carved out of the original room belonging to deceased defendant’s brother Feroze belonging to deceased defendant’s brother Feroze belonging to deceased defendant’s brother Feroze Mallu. Mallu. Mallu. 7. The defendants further contend that the said 7. The defendants further contend that the said 7. The defendants further contend that the said building was under repairs by the Repair Board and a building was under repairs by the Repair Board and a building was under repairs by the Repair Board and a part of the room occupied by Feroze Mallu was taken up part of the room occupied by Feroze Mallu was taken up part of the room occupied by Feroze Mallu was taken up by the contractor for storing material. The said by the contractor for storing material. The said by the contractor for storing material. The said contractor had erected a temporary wall for that contractor had erected a temporary wall for that contractor had erected a temporary wall for that purpose. They further contend that after repairs were purpose. They further contend that after repairs were purpose. They further contend that after repairs were completed, the said temporary wall continued to remain completed, the said temporary wall continued to remain completed, the said temporary wall continued to remain 8 there and taking advantage of that situation one of there and taking advantage of that situation one of there and taking advantage of that situation one of the trustees of the landlord trust usurped the suit the trustees of the landlord trust usurped the suit the trustees of the landlord trust usurped the suit premises by allowing the plaintiff to put a permanent premises by allowing the plaintiff to put a permanent premises by allowing the plaintiff to put a permanent wall and convert the same into a small room. It is wall and convert the same into a small room. It is wall and convert the same into a small room. It is thereafter that the plaintiff filed the false suit thereafter that the plaintiff filed the false suit thereafter that the plaintiff filed the false suit No.5283 of 1979 in which the plaintiff himself gave No.5283 of 1979 in which the plaintiff himself gave No.5283 of 1979 in which the plaintiff himself gave the dimension of the room in original plaintiff’s the dimension of the room in original plaintiff’s the dimension of the room in original plaintiff’s occupation as 7 1/2’ x 17’. The defendants further occupation as 7 1/2’ x 17’. The defendants further occupation as 7 1/2’ x 17’. The defendants further contend that the plaintiff again forcibly constructed contend that the plaintiff again forcibly constructed contend that the plaintiff again forcibly constructed the said wall with regard to which the Bombay the said wall with regard to which the Bombay the said wall with regard to which the Bombay Municipal Corporation had given notice under Section Municipal Corporation had given notice under Section Municipal Corporation had given notice under Section 351 of the B.M.C. Act