ADI S MEHTA Vs. ADIL G ILLAVA

JUDGEMENT

(1.) THE plaintiff has filed this suit for a declaration that the defendant is a tresspasser in respect of the suit flat and has no right, title or interest therein or to continue to use the same. He further prayed that the defendant be ordered to forthwith quit and vacate the suit flat; remove his belongings lying there, and to hand over the same to the plaintiff. A claim for recovery of Rs. 7 lakhs as mesne profits is also made. It is further prayed that the defendant be directed to pay a sum of Rs. 20,000/- per month from February, 1995 onwards as mesne profits till the date the vacant possession is handed over to the plaintiff. Appointment of Receiver of the suit flat is prayed for as an interim measure. A prayer for injunction is also made.

(2.) THIS Notice of Motion has been taken out for the appointment of a Receiver of the suit flat with power to take possession of the flat from the defendant and put the plaintiff in possession of the suit flat on such terms as this Court deems fit and proper. Prayer for injunction as against the defendant is also made. Claim of mesne profits in the sum of Rs. 20,000/- has also been made.

(3.) IN the year 1950 one Shavaksha became the tenant of the suit premises. He passed away on 13th January, 1968. He was residing in the said flat along with his wife and his son (plaintiff ). His wife Goolbanoo thereafter became the tenant of the suit flat. She also passed away on 2nd October, 1987. The plaintiff is the son of Shavaksha and Goolbanoo. He migrated to England in the year 1958. Although he was in England the rent has been paid by him since 1990. In the year 1969/70 the mother of the plaintiff also went to England. While she was staying there she requested Jerbanoo to look after the flat. Jerbanoo is the sister of Goolbanoo. She is the maternal aunty (Mausi) of the plaintiff. At that time Jerbanoo was a widow, her husband Kaikobad having passed away on 1st July, 1966. Jerbanoo and Kaikobad had four children. Two of them who are relevant for the purpose of this Notice of Motion are Kushroo (son) and Katie (daughter ). Kushroo has migrated to Germany and Katie is in India. Katie was married to one Godrej Illava. Katie and Godrej Illava had two children being Adil G. Illava (son) and Dhunna (daughter ). Adil is presently in occupation of the suit flat. He is the defendant in the present suit. Dhunna was also staying in the suit flat for some time but is now living elsewhere after marriage.