PRAKASH RANCHHODDAS Vs. PRAVINKUMAR BHIMJI KARSONDAS

JUDGEMENT

(1.) At the outset, it may be stated that initially this Revision was filed as an Appeal from Order and was registered as A.O.No.131 of 2006. However, after finding that the Appeal against the impugned order is not tenable under Order 43 of C.P.C., on the request of the appellant, the Appeal was converted into Revision Application.

(2.) Father of the revision applicant was the original defendant No.1 in Short Cause Suit No.7817 of 1977. That suit was filed by one Bhimji Karsandas. After his death, his L.Rs. were brought on record as plaintiff Nos. 1(a) and 1(b), who are respondent Nos. 1 and 2 in the present Revision Application. That suit was pertaining the property known as "Virji Mathuradas Bungalow" situate at Jayantilal Vaishnav Road, Ghatkopar (West), Mumbai, In that suit, the plaintiff had sought a declaration that the suit property was a joint property of the plaintiff and the defendants and each of them were entitled to 1/15th share. A preliminary decree was passed in that suit on 31.10.1988 and the final decree was passed on 25.1.1989. It was held that 2/3rd share in the property belongs to the defendant No.6, the family deity and the plaintiff and the defendants had different shares in the remaining portion of the property. The deceased defendant no.1 Ranchhoddas was not satisfied with the decree and he had preferred an appeal. The Appeal is still pending in the High Court. Taking into consideration the controversy, for preservation of the property, the Court Receiver was appointed on 31.1.1989 with a direction to take the nominal possession of the property and to appoint the occupants of the different parts of the building as agents of the Court Receiver.

(3.) Defendant No.1 Ranchhoddas, father of the present applicant, being the occupant of certain portion of the said building was also appointed as an agent and accordingly he had executed an agency agreement in favour of the Court Receiver showing that he was in possession of two rooms on the first floor and commercial premises on the ground floor of the suit building. Besides this, he was in joint occupation of one room on the ground floor jointly with M.C.Ashar, the defendant No.3. They were in joint possession of one room of 14'.3" x 11'.3" and a portion admeasuring 11'.3" x 3'. The total area of that portion admeassures 181.69 sq. ft. As it was in joint possession of defendant NO.1 Ranchhoddas Rangwala and defendant No.3 M.C.Ashar, each of them was deemed to be in possession of 90.85 sq. ft. Ranchhoddas died on 11.10.1998. His daughter Sarla and the present applicant as well as Mukesh were some of the L.Rs. of deceased Ranchhoddas. His daughter Sarla claimed that Ranchhoddas had executed a Will bequeathing his property, including the suit property, in her favour and thereafter she had also obtained a probate and claimed to be in possession of the premises alone. She was unmarried and she died on 14.8.2002. The original defendant Nos. 4 to 6 took out a Notice of Motion No.4719 of 2004 contending that the present applicant had fraudulently taken possession of the premises of Ranchhoddas by using a duplicate key without any authority or permission from the Court Receiver and sought direction to the Court Receiver to take possession of the suit premises from the defendant No.1(d) Prakash son of Ranchhoddas Rangwala, who is the present applicant. That Application was also pertaining the possession of some other premises in the building from one Cyril D'Costa, but we are not concerned with that part of the dispute.