1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.2695 OF 2009 IN SUIT NO.1871 OF 2009 Yogeshkumar Narayanbhai Patel .. Plaintiff V/s Rajnikant Narayanbhai Patel & Anr. .. Defendants Mr.Uday Bobde with Mr.Mukesh Subramaniam for the Plaintiffs. Mr.Jaideep Mitra with Mr.Vinod B.Singh for Defendants. CORAM : S.C.DHARMADHIKARI J. DATE : 11TH DECEMBER, 2009 P.C. : 1. The plaintiff has filed this suit u/s.6 of the Specific Relief Act, 1963. It is the case of the plaintiff that he is non-resident Indian, carrying on business in United States of America alongwith his family. Defendant No.1 is brother of the plaintiff. Defendant No.2 is the wife of Defendant No.1. Thus, 1st Defendant is brother of the plaintiff and the 2nd Defendant is the sister-in-law of the plaintiff. 2. It is the case of the plaintiff that their father purchased property in his name alongwith one Morarjibhai. There are several properties enlisted. However it is the case of the plaintiff that so far as Flat No.102 at Lila Apartment, Santacruz (East), Mumbai is concerned, it was given to the plaintiff by his father and Defendant No.1 as the plaintiff was asked to give up his share in the other family business. There is oral understanding pleaded in paragraph No.5 of the plaint and thereafter it is 2 stated that there are documents to evidence that the plaintiff was in possession of the said flat. The documents are of the year 1990. 3. In 1999 the plaintiff and his family migrated to U.S.A., but it is his case that the possession of the said flat was with him. It is the case of the plaintiff that between 1999 to 2009 he returned to India thrice. It is the case of the plaintiff that in February 2009 he received a letter from LIC of India in the address of the suit property. It is stated that in January 2009 and February 2009 the plaintiff requested his father and Defendant No.1 to transfer the said flat to his name as was agreed in the year 1990, but that request was not accepted. Referring to other suit filed in this Court it is stated that before going to U.S.A., the plaintiff entered into Leave and License Agreement with Mr.Tarun Amrutlal Lakhani permitting him to reside in the said premises for temporary period of 11 months. This is what he has stated in paragraph Nos.9 to 12 of the plaint. 4. After hearing Advocates Mr.Bobde and Mr.Mitra at some length, I fail to understand as to how the plaintiff can claim on these averments that prima-facie case of his settled possession is made out. The plaintiff s’ case is that he has inducted licensee in the said flat and the said licensee is occupying the flat. It is the case of the plaintiff that he has handed over physical possession of the said flat including the keys to Mr.Tarun Amrutlal Lakhani on 19.3.2009. Under these circumstances, the prima- facie case that the plaintiff is dispossessed forcibly and not in accordance with law is not made out. Consequently the notice of motion fails and it 3 is accordingly dismissed. 5. Inviting my attention to page No.33 - Exhibit L viz.List of Articles, “ ” furniture & fixtures, it is orally submitted on behalf of the plaintiff that some articles of the plaintiff are lying in the suit flat. On taking instructions from Defendant No.1 the learned Advocate Mr.Mitra states that these articles are not belonging to the plaintiff and in any event none of his articles are lying in the suit premises. 6. Once I record a finding that essential ingredients of Section 6 of the Specific Relief Act are not even prima-facie made out, I do not see how any relief for return of articles can be granted. 7. Notice of Motion is dismissed. No order as to costs. (S.C.DHARMADHIKARI, J.)