LAWS(BOM)-2009-11-179

GHANSHYAM JAMNOMAL SHEWAKRAMANI Vs. LACHMANDAS TULSIRAM NAYAR

Decided On November 07, 2009
GHANSHYAM JAMNOMAL SHEWAKRAMANI Appellant
V/S
LACHMANDAS TULSIRAM NAYAR Respondents

JUDGEMENT

(1.) This is a thoroughly misconceived appeal filed by the appellants who have been subsequently added as defendant Nos. 4 and 5 in Suit No. 5866 of 1999. The respondent No. 1 is the owner of a building known as "Shiv Sadan", situated at 'C' Road, Netaji Subhaschandra Road, Marine Drive, Mumbai - 400 020. The aforesaid respondent No. 1/original plaintiff has filed the said Suit bearing No. 5866 of 1999 originally against Tilak Raj Bedi and his son Surjiv as original defendant Nos. 1 & 2 on the ground that the said defendants were the trespassers, having no right to retain the possession of the suit premises. While Tilak Raj died on 10-9-2007 and Surjiv died on 6- 7-2006, Mahendra, Mausaben and Tapan Zaveri were initially arrayed as defendant Nos. 3 to 5, as the plaintiffs apprehended that they may be inducted in the suit premises by defendant Nos. 1 and 2. They had been subsequently deleted from array of defendants. It is the case of the plaintiff that one Lachhmandas, father of Ramgopal and ors., left behind his widow namely Pushpavati through his second marriage. The said Pushpavati had her permanent residence at 2/3 Model Town, Delhi, where she was normally residing. But she used to pay visits to Mumbai also and the plaintiff actually allowed her to stay at Mumbai whenever she visits Mumbai as a matter of courtesy without charging any rent or licence fee or compensation in the suit flat. It is the case of the plaintiff that the said Pushpavati had no other right except that she was allowed to stay as and when she visits Mumbai. It is not in dispute that there was no issue from the wedlock of Lachhmandas with Pushpavati. The said Pushpavati died on 14-10-1987. According to the plaintiff, in view of the death of Pushpavati, the right given to her to stay during her visits at Mumbai, came to an end. It is the case of the plaintiff that Pushpavati was not co-parcenor of the said HUF and she was only having limited right to say during her visits at Mumbai.

(2.) It is the case of the plaintiff that after the death of Pushpavati, the original defendant No. 1 Tilak Raj, started visiting the said premises at Mumbai, though his permanent address is Model Town, Delhi. It is the case of the plaintiff that defendant No. 1 had no right to occupy the premises in any manner. It is the case of the plaintiff that the defendant No. 1 was a nephew of Pushpavati, being her sister's son. It is the case of the plaintiff that in the year 1992, the original defendant No. 1 inducted original defendant No. 2 without the consent of the plaintiff. It is the case of the plaintiff that original defendant No. 2 is merely a trespasser in the suit premises and neither defendant Nos. 1 & 2 have any right, title and interest in the suit premises.

(3.) It seems that the plaintiff apprehended that the defendant Nos. 1 & 2 wanted to transfer the property to original defendant Nos. 3, 4 & 5 (i.e. Zaveri's) without consent of the plaintiff. On these and such other averments, plaintiff therefore, filed a suit with a prayer that decree for possession may be passed against the defendants, treating them as trespassers. Plaintiff also preferred a Notice of Motion for interim injunction and the learned Single Judge by his order dated 11-12-2000, granted injunction by passing following order :