KISHORE BAJAJ Vs. DORAB CAWASJI WARDEN

JUDGEMENT

(1.) This is an appeal by the original defendant No. 4 against on order of interim mandatory injunction which virtually ousts him and his wife from the suit premises, by a learned Judge of the Bombay City Civil Court, on a notice of motion taken out by the plaintiff as against the defendants.

(2.) The relevant facts for the purpose of deciding this appeal are as follows: One Cawasji Dorabji Warden and his wife Banubai and their son Dorab, the plaintiff herein, purchased under a registered deed of conveyance dated January 12, 1934 an immovable property then consisting of land admeasuring about 1,000 square yards. After the land was purchased, a building was constructed thereon in the same year. The building is the subject matter of these proceedings. By a declaration dated April 11, 1939 made by the said Cawasji Warden and Banubai Warden, they declared that the plaintiff held beneficial and undivided share in the said land and the building as joint tenant along with them. By another conveyance dated May 12, 1943 the said Cawasji and his wife Banubai and their other two minor sons Rustom and Sohrab purchased another immovable property. On June 9, 1946 the said Banubai died. On March 12, 1951, Dorab, the plaintiff, had addressed a letter to his father Cawasji indicating that he would like to retain his share separately and not jointly. This letter is of considerable importance. The relevant portion of the said letter is as follows :

(3.) Thereafter affidavits were filed. The matter was heard and the learned Judge by his order dated July 4-6-1987 granted interim mandatory injunction, which restrained defendant No. 4 from remaining in possession and enjoyment of the said ground floor. However, relying on a similar order passed by Pendse, J., in a certain High Court proceeding he gave liberty to defendant No. 4 to occasionally enter the suit property to enquire that anyone else other than defendant No. 4 and his family members is entering into the possession of the ground floor of the building and the garage which defendant No. 4 had purchased. It is against this order defendant No. 4 has preferred the present appeal.