KALPANA GOPALKRISHNA SINGHANIA Vs. NARESH M KABRA

JUDGEMENT

(1.) THIS is a suit for eviction and recovery of mesne profits. Plaintiff No. 2 is a joint stock company registered under the Companies Act and original plaintiff No. 1 was at all material times Managing Director of the company. Original plaintiff No. 1 died intestate on 3-1-1980 during the pendency of the suit and his heirs plaintiffs 1-A to 1-D are brought on record. Plaintiff No. 1 is member/shareholder of the Shankar Sagar Co-operative Housing Society holding five shares and the society has allotted as such member a flat bearing No. 44 on the 7th floor of the said building Shankar Sagar situated at Bhulabhai Desai Road, Bombay, Original plaintiff was holding the aforesaid shares and the beneficial interest in the said flat No. 44 as a nominee for and on behalf of plaintiff No. 2 Company. The said shares and beneficial interest in the flat are the assets of the company.

(2.) LATE Lala Kailaspath Singhania was the uncle of original plaintiff No. 1. His daughter Amarpali got married to defendant on 15-12-1968. At the request of Lala Kailaspath Singhania and his daughter Amarpali, original plaintiff No. 1 (since deceased) allowed by way of a temporary arrangement the said Amarpali to use and occupy the said flat from February 1969 without payment of any rent or compensation. Thereafter Amarpali along with the defendant started residing in the said flat from February 1969. However, from 26-2-1970, Amarpali ceased to reside in the said flat with the consent of the plaintiffs and has not been using the same for any purpose and defendant, her husband, is in wrongful use, enjoyment and possession of the same. On 26-2-1970, Amarpali left the flat and since Amarpali ceased to reside the temporary arrangement came to an end and was terminated. By letter dated 3-12-1970 Amarpali confirmed this fact that she has no objection to the plaintiffs recovering possession of the flat from the defendant.

(3.) THERE is no contractual relationship whatsoever between the plaintiffs and defendant. Even according to the bye-laws of the society it is not possible to create tenancy in respect of flat without previous permission of the society in writing and no such consent has been given. Plaintiffs are neither owners nor tenants in respect of the flat and there is no power to create any tenancy or sub-tenancy. Plaintiffs therefore repeatedly asked defendant to remove himself from the said flat and ultimately by letter dated 13-1-1971 called upon him to do so and to remove himself from the said flat alongwith his belongings and hand over vacant possession to the plaintiffs. However, defendant by his Advocates letter dated 13-2-1971 made false and frivolous allegations and wrongfully refused to hand over possession and hence the suit. Defendant has thus become trespasser and is liable to pay damages at the rate of Rs. 100/- per day which is just and reasonable compensation and mesne profits. Plaintiffs have therefore claimed a sum of Rs. 45,300/- as damages with further interest at 6% per annum from the date of suit till realization.