1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL FROM ORDER NO.938 OF 2008 WITH CIVIL APPLICATION NO.1129 OF 2008 IN NOTICE OF MOTION NO.1462 OF 2008 IN S.C. SUIT NO.666 OF 2008 Kamla H. Bhagat ....Appellant Versus Ashok H. Bhagat & Ors. ....Respondents Mr.Suresh Gole for the Appellant. Mr.V. R. Tripathi i/b M/s.V. R. Tripathi & Associates for Respondent Nos.1 and 2. CORAM : S.J. VAZIFDAR, J. DATE : 14TH NOVEMBER, 2008. P.C. : 1. Admit. By an order dated 15.10.2008, the parties were put to notice that the matter would be finally disposed of at the admission stage. 2. This Appeal from Order is filed against the order of the learned Judge of the Bombay City Civil Court refusing interim relief in 2 the Notice of Motion taken out by the Appellant/Plaintiff to restrain the Defendants from entering and/or remaining upon the suit premises being a residential apartment admeasuring about 600 sq.ft. 3. The Appellant is a senior citizen aged 75 years. Respondent Nos.1 and 2 are her son and daughter-in-law and Respondent Nos.3 and 4 are her grand-daughters. 4. There is little, if any, doubt that the Appellant is the owner of the suit premises which she acquired in 1970 as evidenced by an agreement dated 1.9.1970. The share certificate issued by the Co- operative Society stands in her name alone. There is no dispute regarding the genuineness of either the agreement or the share certificate. 5. The Appellant was deserted by her husband about 40 years ago. The Appellant states that she has also been paying the electricity and telephone charges and all other charges in respect of the said flat. The Appellant makes a living from a modest embroidery business. She states that it is she who has looked after the Respondents throughout. The Appellant has set out in detail the manner in which she 3 has been ill-treated, assaulted and abused by Respondent Nos.1 and 2. According to the Appellant, Respondent Nos.1 and 2 have deprived her of her hard earned money and did not even look after Respondent Nos.3 and 4. It was she who gave them pocket money. Respondent No.1 not only never looked after the Appellant but in fact it was the Appellant who paid for his needs and the needs of his family. Further Respondent Nos.1 and 2 have been threatening her and forcing her to sell the suit premises and have been repeatedly abusing and insulting her. In view of her poor financial condition, the Appellant was forced to keep paying guests left vacating one bed rooms. When one of the paying guests went of the rooms, Respondent Nos.1 and 2 locked the same and used it for themselves leaving the Appellant to sleep on the balcony. 6. The Respondents have denied these allegations. Allegations have been made by Respondent No.1 against his mother about her character, which are not in good taste and in any event irrelevant. As they do not affect the legal rights of the parties, I refrain from referring to them. 7. The correctness of these allegations would not affect her 4 right to the exclusive use of the suit premises in view of the fact that she is the sole owner thereof and the Respondents have not a vestige of a right of any nature therein. 8. On behalf of the Respondents/Defendants an alleged deed dated 30.11.1968 was relied upon. The document even if genuine in fact supports the Appellant's case. The document recites that the Appellant and one Harshad Kantilal Bhagat were living together as paramour and mistress in a rented apartment for about eight years and that an apartment was rented in the Appellant's name. It further recites that they had two children (not Respondent No.1). It is important to note clause 2 of the alleged deed which reads as under :- “The Block No.1 in Flat No.3 at Amar Mansion, Shanti Nagar, Kaka Wadi, Kurla shall always belong to the second party (Appellant) as monthly tenant thereof and the second party has the right to stay therein and pay rent for the same. The first party shall not be responsible for payment of the rent.” Even assuming that the above document is genuine, the same and in particular clause 2 thereof supports the Appellant entirely. Further even assuming that the contention on behalf of the 5 Respondents namely that upon surrendering the tenancy in respect of the said flat, the Appellant used the money to purchase the suit premises is correct, it would make little difference in so far as the legal rights of the parties are concerned. The Respondents would not be entitled to the consideration, if any, for the surrender of the tenancy which even as per the documents the Appellant was solely entitled to. 9. In the circumstances, it is clearly established that the Appellant is entitled to the entire right, title and/or interest in respect of the suit flat to the exclusion of the Respondents. 10. Respondent No.1 did not enter upon the suit premises pursuant to the creation of any right in him. In the circumstances, Mr.Gole's reliance upon the judgment of a learned single Judge of this Court in Conrad Dias v. Joseph Dias, 1996(2) Mh. L.J. 208 is well founded. The dispute in that case was between a father and his son. The father/Respondent filed a suit to restrain his son/Appellant from entering or remaining in the suit premises. The learned Judge found that the son resided with the father not as a tenant or as a licensee but as a member of the family and not under any legal right or legal 6 status. The learned Judge held as under :- “The learned trial Court has considered the evidence from a proper perspective and has rejected the theory of tenancy. As already stated, the theory of tenancy is not pressed before me. The theory of licence is not pleaded and even otherwise the evidence does not show that defendant is a licensee of the house. The admitted position is that right from his younger days when the defendant was a minor, the defendant was residing in the suit premises as a son of the father and continued to reside as a member of the family and not under any legal right or legal status. In my considered view, the defendant is residing in the suit premises as a son of the plaintiff and as a member of the family and it cannot be called as a licence as defined in section 52 of the Easements Act. In this connection, I am also fortified by an earlier decision of this Court reported in 1988 Mah. R. C. J. 15, Hoshang Rustomji ..... vs. Rustomji Eruchsha Dotiwala, where it has been held that a son staying with father is residing there only as a member of the family and he has no independent right to continue to stay in the premises. For these reasons my finding on Point No.1 is in the negative. As can be seen from the allegations in the plaint, the plaintiff's case is that he and defendant are in joint possession and that defendant being a son and the member of the family has been residing there and now the plaintiff does not want his son to continue there, and therefore, wants an order of injunction against him. The plaintiff nowhere concedes that the defendant is either a tenant or a licensee. It is a suit filed by a father against a son for injunction who is a member of the family. Such 7 a suit is not covered by section 41 of the Presidency Small Cause Courts Act. Hence, if the allegations in the plaint are read as a whole this is not a suit by a landlord against a tenant or a licensor against a licensee. This is a suit between an owner of a property against a member of his family who is none other than his son. To such a suit section 41 of the Presidency Small Cause Courts Act is not attracted.” The learned Judge concluded that the Defendant son had no right to continue in the premises and that the relief granted restraining him from remaining or entering upon the property was proper. 11. I am bound by the judgment. It would apply with equal if not greater force in the present case. 12. Although it would not make a difference to the result, it is pertinent to note that in any event the Respondents have an alternate accommodation. In paragraph 21 of the plaint, the Appellant has stated that Respondent No.1 in the year 1995 purchased a flat in Mumbai in the name of his wife - Respondent No.2. Respondent Nos.1 and 2 thereafter deleted their names from the Appellant's ration card. The Appellant relied upon a copy of the ration card. The Appellant also 8 furnished the details of the new ration card and registration number thereof obtained by the Respondents. 13. In paragraph 23 of the affidavit in reply, the Respondents denied the above allegations. The Respondents went to the extent of alleging that the new ration card does not bear their signatures or the signatures of their children. The Respondents also denied that the said flat had been purchased and that therefore their names had been deleted from the Appellant's ration card. 14. When it was suggested that these facts ought to be ascertained from the rationing authorities, it was admitted in Court that the said premises had been purchased by the Respondents. It was however contended that the same was very small and could not accommodate four Respondents. No particulars in that respect have been furnished. In fact the Respondents' case was to the effect that the flat had not been purchased. 15. The learned Judged has refused reliefs despite the above facts and the law on the ground that he disbelieved the Appellant's case regarding her poor financial condition and her allegations about being illtreated by the Respondents. It is important that the learned 9 Judged accepted that the Appellant is the owner of the property. Thus even if the Appellant's allegations are not accepted she would be entitled to the reliefs claimed. The learned Judge has without assigning any reasons refused to follow the above judgment of this Court. 16. in the circumstances, the Appeal from Order and the Civil Application are allowed. The impugned order is set aside. The Notice of Motion is made absolute in terms of prayer (a). The operation of this order is stayed upto 30.4.2009. However, the Appellant even during the period of stay shall be entitled to the exclusive use of one bed room of her choice and joint user of the remaining flat. Liberty to the Appellant to apply, if necessary.