CONRAD DIAS Vs. JOSEPH DIAS

JUDGEMENT

(1.) THIS is an appeal against the judgment and decree dated 17th June, 1994 in Short Cause Suit No. 6487 of 1988 on the file of City Civil Court, Bombay. I have heard the learned Counsel appearing for both the parties.

(2.) THIS is an appeal involving dispute between a father and a son. The father, who is respondent to this appeal, filed a suit in the trial Court for injunction restraining the appellant-defendant from entering or remaining in the suit premises. His case is that he is the owner of the suit property which is called as "brazvilla" situated at Dadar. It is stated in the plaint that the plaintiff and the defendant are residing in second floor of the suit premises. The plaintiff was working in the Reserve Bank of India and on transfer was forced to stay at Bangalore. He had authorised his uncle to look after the suit property. The uncle was unwell and died in 1982. Hence in 1982 the plaintiff had given a power of attorney to the defendant to look after the maintenance of the suit property. Since the defendant was playing mischief and was attempting to alienate the property, the power of attorney was revoked. There is strained relationship between the father and son. The plaintiff does not want to have anything to do with the defendant. Hence he does not want the defendant to continue in the suit premises. The defendant has no manner of right or interest in the suit property except staying there gratuitously as a son of the plaintiff. He, therefore, wants an order of injunction against the defendant and the members of his family to restrain them from entering or remaining on the suit premises. The appellant is the son, who was the defendant in the Court below, filed a written statement contesting the suit on many grounds. It is stated that the suit is not maintainable. That defendant is in possession of the suit premises under an understanding with the plaintiff in 1970-71 under which defendant could occupy the suit premises as a tenant under the plaintiff. The consideration for this understanding was that the defendant should assign his LIC policy in favour of the plaintiff and the defendant should pay the taxes for the suit property, look after its maintenance etc. Accordingly, the defendant endorsed the LIC policy in favour of the plaintiff who in turn assigned it to one J. M. Parekh. The defendant has been paying taxes on the suit property. Once defendant had sent rent to the plaintiff by money order, but it was refused by the plaintiff. That the defendant is in possession and enjoyment of the house in his own right. It is further pleaded that the defendant has perfected the title to the suit property by adverse possession for more than 12 years. Plaintiffs title is also denied. It is denied that the plaintiff is residing in the second floor of the building. It is asserted the plaintiff has been residing permanently at Bangalore since 1974. The defendant has been looking after repairs to the suit property. Giving of power of attorney by the plaintiff in favour of the defendant and subsequent cancellation are admitted. That the plaintiff is not entitled to the relief of injunction. It is, therefore, prayed that the suit be dismissed with costs.

(3.) THE learned trial Judge framed the following issues