NAJMA SAJJAD KANJI Vs. RASHID SULEMAN OOMER

JUDGEMENT

(1.) Applicants before this Court are the original plaintiffs and the respondents are the original defendants. Defendant nos.1 and 2 are brothers and defendant nos.3 and 4 are sisters of the plaintiff no.1. Plaintiff No.2 is the husband of the plaintiff no.1. Property in dispute is a part of the building known as Kohinoor Building situated at 29 Hughes Road, Mumbai. The defendants are the co-owners of the said building. Plaintiffs are residing in another building at 53 Valentina, Gamadia Road, Mumbai. However, they are also in occupation of a room marked as Flat No.1A on the ground floor of Kohinoor Building. About that flat No.1A, there is no dispute between the parties. Admittedly, plaintiffs were inducted as tenants in the flat no.1A admeasuring 280 sq.ft. sometimes in 1984 by mother of the plaintiff no.1 and the defendants. The dispute is about open space in front of the building. According to the plaintiffs, this open space was actually a garden abutting flat no.1A and they are in occupation of the same since 1989 on the basis of permission granted by the mother of the plaintiff no.1 and according to them, this disputed portion has become part of the tenanted premises. According them, it was in exclusive possession of the plaintiffs since 1989 and even before that they were maintaining that garden. They had put fencing, grill and a gate so that their exclusive possession over garden could be maintained. This portion admesures 19 1/2 ft. x 14 1/2. The defendant no.1 is residing in another building at 12 Meher Apartments, Altamount Road, Mumbai while the defendant no.2 resides on the entire 3rd floor of Kohinoor Building. It is contended that the defendants forcibly dispossessed the plaintiffs on 8-9-1997 at about 11.30 p.m. and took possession of the same. In view of this forcible dispossession, plaintiffs filed suit under Section 6 of the Specific Relief Act claiming possession of the same.

(2.) The defendant nos.1 and 2 contested suit but the defendant no.3 and 4, who are the sisters did not contest the suit. Defendant nos.1 and 2 denied existence of any garden or the space. According to them, it was always open space used for the purpose of parking of cars for the residents in that area. They also denied that the plaintiffs were in exclusive possession of the same at any time. They also denied that they had granted exclusive possession of the suit premises to the plaintiffs or that this property is part of the tenanted premises being flat no.1A.

(3.) On behalf of the plaintiffs, plaintiff no.1 examined herself while on behalf of the defendants, defendant nos.1 and 2 were examined. After hearing the evidence of both the parties, the learned trial Court came to conclusion that the plaintiffs had failed to prove that they were in possession of the disputed area and that they were dispossessed from the same within six months from the date of filing the suit. In the result, the suit came to be dismissed. Therefore, plaintiffs have preferred this Revision Application.