ZARINA SHEIKH Vs. YEDADI LAXMINARAYAN RAO AND ORS.

JUDGEMENT

(1.) Heard counsel for both the parties at the stage of admission The appellant herein has approached this Court against the order dated 25th June 1996 passed by the Civil Judge, Senior Division, Vasco in Civil Miscellaneous Application No. 32/96 in Special Civil Suit No. 21/96 The present appellant was the original defendant No. 3. The respondent No. 1 was the original plaintiff in the suit.

(2.) It is the case of the respondent No. 1 that he was the tenant of flat No. 7 in a building situated at Vasco of which respondents 2 and 3 are presently claiming to be owners subsequent to the death of the original owner. It is his case that on 10th March 1996 he had proceeded to Panaji/Bombolim. in the afternoon when he was informed at his uncles house at Bombolim by one Shri Uday Samant, a neighbour residing in Flat No. 5. that the present appellant and respondents 2 and 3 had broken the lock and had thrown out the belongings of the respondent No. 1, That on hearing the news he immediately rushed to to alongwith his uncle, went to the house, bad the position as informed to him by Shri Samant and thereafter in the evening he filed complaint in respect of the said incident. Thereafter on 26th March, 1996 the respondent No. 1 filed the suit under Sec. 6 of Specific Relief Act, 1963 and also filed an application for temporary mandatory injunction directing the appellant and respondents land 3 to put the respondent No. 1 in possession of flat pending the hearing and oral disposal of the suit. The appellant on the other hand contained that though the respondent No. 1 was earlier a tenant in the said premises, he had seated the premises some time in Dec., 1994 and had handed over possession to the appellant herein. It was the case of the appellant that she had purchased two flats which included flat No. 7 from respondent No. 2, to soon she had partly paid the consideration. That the respondent No. 1 had surrendered possession to the present respondent No. 2, who in turn handed over possession to the appellant. However, the appellant permitted the respondent No. 1 to keep some things in the apartment as the respondent No. 1 had impleaded that he was looking out for alternate accommodation and that as soon as he gets r. alternate accommodation, he would shift his belongings. It is further the case of the appellant that on the morning of 10th March, 1996 the respondent No. ,1 took away the items still left in the flat No. 7 and soon thereafter in the evening of the same day he filed a false case against the appellant herein as also against respondents 2 and 3. It was the case of the appellant that the appellant was lawful possession of the premises and as such, the respondent No. 1 having voluntarily surrendered his possession and tenancy, was ut entitled to the relief of mandatory injunction. It was further the case of the appellant sat the balance of convenience was in favour the appellant and the respondent No. 1 rid always be compensated in terms of money and it was further her case that this was not a case wherein a temporary mandatory injunction ought to have been granted by the trial Court as there was no case for grant of temporary mandatory injunction.

(3.) The trial Court after considering the documentary as well as affidavitary evidence has arrived at the conclusion that the respondent No. 1 has been forcibly dispossessed from Flat No. 7 on 10th March, 1996 and has directed the appellant and respondents 2 and 3 to handover possession of the suit premises to the respondent No. 1 within a period of one month from the date of the order, which was 25th June, 1996. Being aggrieved by this order the appellant has approached this Court by way of this appeal to challenge the said order. An interim stay was granted in terms of prayer (a) of Civil Application No. 137 of 1996 pending notice to the respondents returnable on 31st July, 1996. Pursuant to the notice, respondent No. 1 has appeared. The records disclose that notices of respondents 2 and 3 have returned unserved. It may be mentioned that though the order impugned is against both the appellants and respondents 2 and 3, respondents 2 and 3 have not chosen to challenge the said order. In fact it is the appellant, who claims to be the owner of the premises, and the respondent No. 1, who was the tenant in the premises, who are directly affected by the stay order and, hence, arguments have been heard both on behalf of the appellant and the respondent No. 1.