=1= IN IN IN THE THE THE HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION APPEAL APPEAL APPEAL NO.803 NO.803 NO.803 OF 2007 OF 2007 OF 2007 IN IN IN NOTICE NOTICE NOTICE OF OF OF MOTION NO.1610 OF 2006 MOTION NO.1610 OF 2006 MOTION NO.1610 OF 2006 IN IN IN SUIT SUIT SUIT NO.1395 NO.1395 NO.1395 OF 2005 OF 2005 OF 2005 Baburao H. Koli ...Appellant v/s Chandrabhaga P. Koli and ors. ...Respondents Ms R.C. Nichani i/b Mr S.R. Kumbhat for Appellant. None for Respondents. CORAM CORAM CORAM : D.K. DESHMUKH AND A.A. SAYED JJ. : D.K. DESHMUKH AND A.A. SAYED JJ. : D.K. DESHMUKH AND A.A. SAYED JJ. DATE DATE DATE : 12TH FEBRUARY 2009 12TH FEBRUARY 2009 12TH FEBRUARY 2009 =2= P.C. :- 1. By this appeal, the appellant challenges the order passed by the learned Single Judge of this Court in notice of motion No.1610 of 2006. That notice of motion was taken out by the appellant - plaintiff. In the suit, the case of the plaintiff is that the suit flat i.e. Block No.1 on the ground floor of the building ’A’, Adi Janta Shiv Koliwada Co-operative Housing Society Ltd., Sion, Bombay 400 022 was owned by Harishchandra Damaji Koli, who was father of the plaintiff. He executed a will and bequeathed the flat in favour of the plaintiff. A portion of the flat was occupied by Pandurang, who was brother of the plaintiff and of whom the defendants are the legal representatives. The plaintiff claimed title to the suit flat on the basis of the will executed by his father Harishchandra who according to the plaintiff, was the sole owner of the flat. When the suit was filed, it appears that letters of administration of the will attached were granted by the learned Single Judge of this Court and appeal was pending. The notice of motion was decided by the learned Single Judge by order dated 1st October 2007. The learned Single Judge granted notice of motion in terms of prayer clause (b) i.e. =3= restraining the defendants from transferring, alienating etc. the flat. The learned Single Judge did not grant other reliefs claimed in the notice of motion because appeal against the order granting letter of administration in favour of Harishchandra was pending. The learned Single Judge also found that about 30 % of the flat was in possession of the plaintiff while 70 % of the flat was in possession of the defendants. But this was an approximate assessment, there is no material on record to arrive at this conclusion except the rival pleadings. 2. We have heard the learned counsel appearing for appellant - plaintiff. None appears for the respondents - defendants. Admittedly, the appeal against the order of the learned Single Judge granting letter of administration of the will is now decided and the appeal has been dismissed. We also find that though in the affidavit filed in reply of the motion the defendants admit that the share certificate of the flat stands in the name of Harishchandra, he contends that the consideration for buying the flat was paid by Pandurang, but there is no documentary evidence produced on record in support of this plea. Therefore, at this stage, it does appear that the flat was owned by Harishchandra as is clear from the share certificate and he has bequeathed that flat in favour of the plaintiff. =4= We do not find any material on record placed by the defendants to cast any cloud on the title of the plaintiff or his predecessor-in-title Harishchandra as owner of the flat. In our opinion, as now the appeal has been decided, it will be appropriate to consider whether the defendants can be permitted to continue to occupy the flat when prima facie they have no title to the flat and when the plaintiff is complaining that the defendants are occupying portion of the flat and they are not paying any outgoings. In our opinion, therefore, following order would meet the ends of justice. 3. The order of the learned Single Judge impugned in the appeal in so far as it declines to grant interim order in terms of prayer clauses (a) and (c) is set aside. The order of the learned Single Judge granting interim order in terms of prayer clause (b) is not disturbed. Notice of motion is remitted back to the learned Single Judge to consider whether the plaintiff is entitled to grant of interim order in terms of prayer clauses (a) and (c) of the motion. Appeal is disposed off with no order as to costs. . Notice of motion No.983 of 2006 is disposed off. . Parties to act on the copy of this order duly =5= authenticated by the Associate / Private Secretary of the Court. . Certified copy is expedited. ( D.K. DESHMUKH J.) ( A.A. SAYED J.)