SONIA ZUZARTE ALMEIDA Vs. ABAJI R VANZARI

JUDGEMENT

(1.) RULE. Heard forthwith. The petitioner has applied for striking out the issue which had been framed as under : "whether the defendants prove that the defendant No. 1 was allowed to reside in suit room as mundkar in the year 1972 by Mr. Arthur Zuzarth and he is residing in fixed habitation?"

(2.) THE case of the plaintiffs is that defendant No. 2 was engaged as maid servant of the plaintiff's late mother to do her daily work in october 2000 and was allowed to reside in suit room. The mother of the plaintiff expired on 6. 8. 2001. Earlier she used to serve her mother also as a maid servant but used to return to her house. On the request of defendant No. 2, Defendant No. 1 was also allowed to reside in the premises. On the expiry of his mother, the plaintiffs had requested the defendants to vacate the premises which they had orally agreed. Plaintiffs are serving abroad. As in spite of request defendants did not vacate the premises, the suit was filed by the plaintiffs for eviction of the defendants. The defendants have denied that the properties have been bequeathed to the plaintiff. It is even denied that Arthur Zuzarth is the father of the plaintiffs. It is their contention that the late Arthur Zuzarth had allowed the defendant No. 1 to reside in the said suit room as mundkar and since then, he is residing there with Defendant No. 2 and their two sons. The defendants have also relied on documents, all these documents are of the year 2003.

(3.) ISSUES arise from the pleading considering the controversy to be decided. Based on the pleadings the Court has to frame relevant issues. In this case, the defendant is claiming as a mundkar. Apart from a bald assertion there are no other material particulars. The only averment is that they were residing since 1972. The document produced in support are of the year 2003 onwards. In so far as the Mundkar Act is concerned, prima facie, the person to claim mundkarship has to be in possession and in occupation before the appointed day i. e. 12. 3. 1976. The plea by way of defence ought not to be frivolous or vexatious, see, anandrao Bandu Jadhav and another, Versus Bibijan,air 1983, bombay 32. In that case this Court considering framing of an issue in the context of a claim of the tenancy, held that it is based on vague plea and as such it is not possible to frame issue.