Thursday, 19 February 2015

When brother is said be not in exclusive possession of tenanted premises in exclusion to his sister?


In such a suit, if the injunction as claimed, has to be
granted, then, the Respondent­Plaintiff ought to have placed before the
Court enough material to indicate that his possession in the suit flat was
exclusive and not intermittent.  That he visited and resided in the suit flat
on   more   occasions   than   the   Appellant   No.1   is,   thus,   prima   facie   not

conclusive.  The Appellant must have produced a strong prima facie proof
of his possession of the suit flat and to the exclusion of the Appellant No.1.
That   material   is   found   to   be   lacking,   prima   facie.     In   that   regard,   the
learned Single Judge has relied upon the rent receipts from the time of the
mother's death in August 2001 till the date of the alleged trespass by the
original Defendants.   These according to the learned Judge show that for
the last more than 10 years, it is the Respondent­Plaintiff who has paid the
rent by cheque and rent receipts have been issued to him by the landlord,
though in the name of his deceased father.  In that regard, what we find
from perusal of these bills is that they have been issued in the name of the
deceased father.  Each of these bills and which have mentioned the cheque
number   and   the   date   and   the   period   indicate   the   name   of   Mr.   B.   N.
Adarkar.  If,  these rent receipts from Annexures C­I onwards are carefully
perused, they do not in any manner indicate that the rent receipts have
been transferred after the death of the father either in the name of the
mother or thereafter in the name of the Respondent­Plaintiff.  In fact, no
document   has   been   placed   on   record   making   such   a   request   and
emanating from the Respondent­Plaintiff.  Thus, the monthly rent receipts
and payment made by cheque, by the Respondent­Plaintiff, are not enough
to show the settled and exclusive possession.   The bank account of the
Respondent­Plaintiff may show the address of the suit flat and equally the

telephone bills and electricity bills but they do not indicate his exclusive
and settled possession.   That there are certain documents in the form of
communications and letters would only show that the Respondent­Plaintiff
indicated the address of the suit flat for the purposes of correspondence
and communication with him.  That is to indicate the place where he can
be contacted and communicated in India.  However, in the backdrop of his
own case as set out in the plaint, this material can never be said to be decisive   and   even   prima   facie. 
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL  JURISDICTION


APPEAL (L) NO. 68 OF  2014
WITH
NOTICE OF MOTION (L)NO.292 OF 2014
WITH
NOTICE OF MOTION (L)NO.670 OF 2014

Mrs. Mina Srinivasan Krishnan


..Appellants
 (Original Defendants)
­Versus­
Arun Bhaskar Adarkar


CORAM:  S.C. DHARMADHIKARI
AND
      G. S. KULKARNI, JJ.


PRONOUNCED ON :   24TH SEPTEMBER,2014
Citation;AIR2015(NOC)205 Bom

This Appeal under clause 15 of the Letters Patent is directed against
the   order   passed   by   the   learned   Single   Judge   on   an   Interim
Application/Notice of Motion No.1548 of 2011 in the above suit.  By the
impugned order dated 20th  January, 2014, the learned Single Judge has
ig
allowed this Notice  of Motion and made it absolute  in terms of prayer
under:­
clause (a) thereof.   Prayer clause (a) of the Notice  of Motion reads as
“(a) That pending the hearing and final disposal of the Suit,
the Defendants, their servants and agents be restrained by
temporary order and inunction of this Court from entering
upon or remaining on the Suit Flat viz. Flat No.5, Second
Floor, Goolestan, 37, (East) Wing, Cuffe Parade, Bombay 400
2]
005,   or   any   part   thereof   without   the   permission   of   the
Plaintiff.”
That was a Notice of Motion which was moved by the Respondent­
original   Plaintiff   in   the   above   suit.     The   Appellants   before   us   are   the
original Defendants and they are restrained by the temporary order and
injunction   from   entering   upon   or   remaining   on   the   suit   flat   being   flat
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No.5,  Second  Floor,  Goolestan,  37,  (East)  Wing,  Cuffe   Parade,  Bombay
400 005, or any part thereof.   This flat shall be referred to as the “suit
3]
flat”.
The Suit has been filed by the Respondent­Plaintiff in the following
circumstances:­
The   Respondent­Plaintiff   filed   the   Suit   No.1173   of   2011   in   this
ig
Court challenging that he is a senior citizen and is physically handicapped.
He had Polio at the age of one year, which considerably weakened both his
legs   and   his   right   arm.   He   has   pointed   out   that   this   has   affected   his
mobility.   The   Appellant   No.1   is   the   original   Defendant   No.1.   She   is
younger   married   sister   of   the   original   Plaintiff.   The   Appellant   No.2   is
husband of the Appellant No.1.
4]
The Respondent/ Plaintiff stated in paragraph 1 of the plaint that he
is a resident of Washington D.C., United States of America. He is a tenant
of and in lawful and juridical as well as physical settled possession of Flat
No.5,   Second   Floor,   Goolestan,   37,   East   Wing,   Cuffe   Parade,   Mumbai­
400005.   He   is   approaching   this   Court   seeking   permanent   injunction
against the Appellants, their servants and agents from interfering with his
possession   over   the   suit   flat.   It   is   alleged   that   the   Appellants   have
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trespassed into the suit flat on 23.04.2011 and disturbed peace and right
5]
of the Respondent/ Plaintiff therein.
In paragraph 3 of the plaint, it is alleged that the Appellant No.1
and original Plaintiff resided in the suit flat with their parents Bhaskar
Namdeo   Adarkar   and   Mrs.Sarla   Bhaskar   Adarkar   and   brother   Vivek
Bhaskar Adarkar since December, 1965. The suit flat was then owned by
ig
M/s.Patel   Volkart   and   leased   to   the   Reserve   Bank   of   India   where   the
Respondent's   father   was   Deputy   Governor.   The   father   of   Respondent
became a tenant of the suit flat in or about 1969 and was paying monthly
rent to Patel Volkart. The ownership of suit flat was transferred by Patel
Volkart in or about 1983 to M/s. Ruchi Properties Ltd. now renamed as
Isha Infratech Private Limited along with the tenancy of the Respondent's
father.
6]
The Respondent/ Plaintiff stated as to how he was working with
Asian  Development Bank. As  a part of  his employment, he  was posted
outside   India.   The   Respondent   subsequently   joined   the   services   of
International Monetary Fund in January, 1992 and continued to be posted
outside India. He is a person of Indian origin and holds a P
.I.O. Card issued
by Indian Embassy at Washington D.C.. He has also referred to certain
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diplomatic   passports   issued   to   him   and   which   stated   in   the   column   of
7]
permanent address, the details of the suit flat.
The Respondent/ Plaintiff has narrated as to how he married one
Meenalaxmi Sanzgiri on 22.05.1966 and from this marriage he has a son
It is alleged that the Appellant No.1 married the Appellant No.2 in
ig
8]
and a daughter. The said Meenalaxmi Sanzgiri expired on 04.08.1993.
or about 1970 and left the suit flat. Since the time of Appellant No.1's
marriage, she  has been residing with her husband (Appellant No.2) and
not in the suit flat. It is alleged that the Appellant Nos.1 and 2 are residing
at the address mentioned in the cause title of the plaint. They are staying
in   a   duplex   flat   which   is   in   the   name   of   a   Private   Limited   Company,
namely, Lotus Learning Private Limited which is believed to be owned and
controlled by the Appellants.
9]
It   is   then   alleged   that   the   Respondent/   Plaintiff   married   one
Ms.Fiona   Shrikhande   in   November,   1996.   Ms.Fiona   Shrikhande   has   a
daughter by name Ms.Marisha from her first marriage to one Mr.Jayant
Kirtane. Ms.Fiona Shrikhande and Mr.Kirtane were divorced in 1983 and
custody of daughter Ms.Marisha was, therefore, handed over to Ms.Fiona
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Shrikhande. After the Respondent's marriage with Ms.Fiona, Ms.Marisha
also lives with the Respondent. The Respondent/ Plaintiff's children from
first marriage are now settled abroad and living independently. They are
married and residing with their respective families in the United States of
America.
In   paragraph   8   of   the   plaint   it   is   alleged   that   the   Respondent/
10]
ig
Plaintiff's   father   expired   in   Mumbai   on   20.03.1998   leaving   behind   the
Plaintiff's  mother,  Plaintiff, Appellant  No.1 and one  brother   of   Plaintiff,
namely,  Vivek   Bhaskar   Adarkar   as   the   heirs.   In   terms   of   wishes   of   the
father, the tenancy of suit flat was transferred to the mother of Appellant
No.1 and Plaintiff. The landlord, however, continued to issue rent receipts
in the name of deceased father. The assertion of Respondent/ Plaintiff is
that he paid rent to the landlord in respect of the suit flat after his father's
demise and he continues to pay the same till the date of filing of the Suit.
11]
The   mother   of   Respondent   expired   at   Mumbai   on   28.08.2001
leaving behind the Appellant No.1, Plaintiff and their brother Vivek as the
heirs. A reference is made to the Will left behind by the mother dated
26.02.1985   in   respect   of   which   the   Probate   was   obtained   by   the
Respondent/ Plaintiff on 22.12.2005. It is alleged that at the time of the
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death of mother only the Respondent and his wife were residing with her
in the suit flat. The Appellant No.1 was not residing at the suit flat, but at
her   matrimonial   home   at   Bandra.   In   paragraph   9   of   the   plaint   these
assertions are to be found and it is further alleged that since death of the
mother of Respondent in 2001, the Respondent succeeded to the tenancy
of the suit flat. He has been in juridical and settled possession of the suit
flat.   It   is   the   Respondent   who   has   been   regularly   paying   rent   to   the
ig
landlord.   The   brother   of   Appellant   No.1   and   Respondent/   Plaintiff,
namely,   Vivek   Adarkar   was   residing   in   Burough   of   Queens,   New   York,
USA.   He   was   bachelor   and   expired   in   New   York   on   19.08.2009.   The
specific assertion in the plaint is that as the Respondent and his mother
were residing with the Respondent's father in the suit flat at the time of
his death and thereafter, the Respondent was residing in the suit flat along
with his mother at the time of her death, he became a tenant of the suit
flat in accordance with the provisions of law. In any event, the Appellant
No.1 was not residing with the father or mother in the suit flat at the time
of their death. This assertion coupled with moving out of the suit premises
by the Appellant No.1 since her marriage is reiterated in paragraph 10 of
the plaint.
12]
In paragraph 11 of the plaint, it is alleged as to how at the time of
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father's death in 1998, the mother of Appellant No.1 and Respondent was
suffering   from   Alzheimer's   disease   in   an   advanced   stage.   The
responsibility of paying monthly rent was taken over by the Respondent/
Plaintiff.  The   Respondent   paid   monthly   rent   to   the   landlord   which   the
landlord agreed to receive, but rent receipts were not issued in the name
of   the   Respondent,   but   his   deceased   father.   Reliance   is   placed   upon   a
sample   rent   receipt.   It   is   asserted   that   the   rent   is   being   paid   by   the
The   Plaintiff   states   that   though   Defendant   No.1   does
not have any right, title and interest in the Suit Flat,
she being the Plaintiff's sister, the Plaintiff voluntarily
and out of love and affection towards his sister, offered
to   pay   her   certain   amount   if   the   Plaintiff   decided   to
surrender  the tenancy of the Suit Flat.   The Plaintiff,
however, did not wish to surrender or transfer tenancy
of the Suit Flat.   Hereto annexed and marked Exhibits
“E­1”   to   “E­6”   are   the   copies   of   the   emails   recently
exchanged between the Plaintiff and Defendant No.1 in
this regard.”
“12.
plaint it is alleged as under:­
ig
Respondent alone since his father's death in 1998. In paragraph 12 of the
13]
Thereafter,   in   paragraphs   14   to   19   of   the   plaint   it   is   alleged   as
under:­
“14.
As aforesaid, the Plaintiff is physically handicapped and
unable   to   freely   walk   without   support.     Due   to   his
physical condition, certain alterations and changes were
made in the bathroom attached to the bedroom occupied
by the Plaintiff in the Suit Flat.  All the furniture, fixture
and other items in the Suit Flat were inherited and/or
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On 23rd April, 2011 when the Plaintiff and his wife Ms.
Fiona had just returned to Washington DC from a 19
day sea voyage and the said daughter Ms. Marisha, who
was otherwise residing in the Suit Flat, was on vacation
in Europe, the Defendants rung the door bell at about
12.30 p.m. The said Solkar answered the door bell and
looked   out   of   the   peephole   on   the   door   and   saw   the
Defendants.   But   he   had   never   seen   them   before   and
therefore did not recognize them.   At that time Solkar
was alone at home. When Solkar opened the door, the
Defendants   pushed   their   way   into   the   Suit   Flat.
Defendant   No.1   informed   Solkar   that   she   was   the
Plaintiff's sister and the man accompanying her was her
husband, Mr.  Krishnan. The Defendants told Solkar that
Defendant  No.1  also  has  rights  in  the  Suit  Flat.    The
Defendants then  made a  phone call  from their  mobile
phone, and shortly after  that a locksmith  arrived and
proceeded to change the lock of the front door. Solkar
was   frightened   by   the   Defendants'   behaviour   as   they
were very aggressive.   Defendant No.2 demanded from
Solkar  his key to the back  door  which  Solkar handed
over to him.
15.
ig
purchased by the Plaintiff and his family and therefore
belong to the Plaintiff.  There were three sets of keys to
the Suit Flat.  One remained with the Plaintiff, one with
the   Plaintiff's   daughter   Marisha,   and   one   with   the
Plaintiff's   cousin   Ms.   Priya   Adarkar   who   resides   in
Hyderabad   and  visits  Mumbai   frequently   and  stays   in
the Suit Flat with the Plaintiff's knowledge and consent.
The Plaintiff's full time servant Shahshikant Solkar had
a key to the rear door to the Suit Flat.  The said Solkar
has   been   looking   after   the   Suit   Flat   since   2006   and
resides in the said Flat with the Plaintiff.   Even in the
absence of the Plaintiff and his family members, the said
Solkar stays in the Suit Flat.   As such, the keys to the
back door of the Suit Flat were with the said Solkar.
16.
Solkar thereafter retreated to the kitchen and made a
phone  call  to   Ms.   Priya  Adarkar,  the   Plaintiff's   cousin
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who had visited Mumbai from Hyderabad and had been
staying   in   the   Suit   Flat   till   the   previous   day,   and
informed her about what had happened.   Ms. Adarkar
asked   Solkar   to   call   Shailesh   Patkar,   a   friend   of   the
Plaintiff and also inform him about what had happened.
Accordingly, Solkar informed Patkar about the same.
The Plaintiff was informed by Solkar that after about 2
         hours i.e. at about 3.00 p.m. a few policemen arrived at
                   the Suit Flat.  The said policemen asked Solkar how long
                             he   had   been   working   for   the   Plaintiff   in   Goolestan.
                                     Solkar   replied   that   he   was   with   the     Plaintiff   for   six
                                               years.  The policemen also enquired with Solkar whether
                                                       he recognised the Defendants.  Solkar told the policemen
                                                               that he had never seen the Defendants before.  The police
                                                                         then left the Suit Flat.
18. Defendant   No.2   then   demanded   to   know   who   had
           informed   the   police   and   who   had   given   Solkar   the
                   authority to make a phone call. Solkar told the police
                            that he had called Ms. Priya Adakar and then Patkar as
                                      instructed by Ms. Priya Adarkar.
ig
17.
19.
14]
Defendant   No.2   was   very   upset   with   Solkar   for
informing   Ms.   Priya   Adarkar   and   Patkar   about   the
Defendants'   entry   into   the   flat.     Defendant   No.2   then
told him to pack all his belongings and leave the Suit
Flat immediately.   Defendant No.2 thrust Rs.7,500/­ at
Solkar and threatened Solkar by saying it was in his best
interest to leave.   Solkar  left as he was scared by  the
Defendants'   behaviour   and   went   to   the   next   door
neighbours Mrs. and Mr. Malegam and told them what
had happened.  The neighbours said they would call the
Plaintiff and asked Solkar to stay at their house.  Solkar
has been staying there since.”
In paragraph 20 it is alleged that the Respondent/ Plaintiff had to
interrupt his medical treatment due to a serious fall. He, therefore, came
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to Mumbai with his wife on 25.04.2011 in order to deal with the situation
created by the Appellants' illegal and forceful entry in the suit flat. The
Appellants also tried to bring in certain articles to show their presence in
the flat. It is then alleged that the Appellants are presently occupying the
Respondent's bedroom in the suit flat as a result whereof the Respondent
is using another bedroom and is finding it extremely difficult to use that
and   other   bathrooms   which   are   not   convenient   for   the   use   of   a
ig
handicapped person. He has to, therefore, stay at a hotel and club. He has,
thus, narrated as to how he and his family are uprooted in a way. There
has been reference made in subsequent paragraphs to the complaints to
the   Police.   The   Respondent/   Plaintiff   asserts   his   settled   and   lawful
possession by relying on certain documents referred to in paragraph 22
and finally it is submitted that attempts were made to resolve the dispute
between brother and sister amicably, but they could not succeed. With all
these and such allegations including the claim for damages that the suit
has been filed in this Court with other usual averments on 11.05.2011.
The prayers in the Suit read as under:­
(a)
that the Defendants be ordered and  decreed  to jointly
and/or   severally   pay   to   the   Plaintiff   a   sum   of
Rs.6,69,982/­ (Rupees Six Lakhs Sixty Nine Thousand
Nine Hundred Eighty Two only) as per the Particulars of
Claim (being Exhibit “l” hereto) and interest thereon at
the rate of 18% per annum from the date of filing of the
Suit till payment or realisation thereof;
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that   this   Hon'ble   Court   be   pleaded   to   permanently
       restrain the Defendants, their servants and agents by an
               order and injunction from entering upon or remaining
                      on the Suit Flat viz. Flat No.5, Second Floor, Goolestan,
                               37, (East) Wing, Cuffe Parade, Bombay 400 005, or any
                                        part thereof without the permission of the Plaintiff;
(c)  that pending the hearing and final disposal of the Suit,
               the Defendants, their servants and agents be restrained
                      by temporary order and injunction of this Hon'ble Court
                              from entering upon or remaining on the Suit Flat viz.
                                       Flat No.5, Second Floor,   Goolestan, 37, (East) Wing,
                                               Cuffe   Parade,   Bombay   400   005,   or   any   part   thereof
                                                       without the permission of the Plaintiff;
(d) for ad­interim relief in terms of prayer clause (c) above.”
ig
(b)
In furtherance of the final reliefs the Respondent/ Plaintiff applied
15]
for interim reliefs by moving the  above referred Notice of Motion. The
interim prayer has also been reproduced by us above.
16]
Upon being served with the papers and proceedings, the Appellants­
Original Defendants  filed their  Affidavit in reply.    In the two affidavits
which were filed firstly to oppose any ad­interim reliefs and thereafter the
interim reliefs, what the Appellants contended was that firstly this Court
has no jurisdiction to entertain and try the suit.  Alternatively and without
prejudice,   it   was   urged   that   the   Appellant   No.1   Mrs.   Mina   Srinivasan
Krishnan, is a tenant in the suit flat along with the Respondent.  She does
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not require any permission of the Respondent to enter into or remain in
the suit flat.  It was urged that the Respondent with malafide intention has
wrongly disputed the Appellant No.1's right as a tenant in respect of the
suit flat.  He is falsely seeking to claim exclusive tenancy rights in respect
of the suit flat.   There is no such sole tenancy right. It is submitted that
Appellant   No.1   is   a   daughter   of   the   deceased   and   she   has   enjoyed
uninterrupted   access,   use   and   enjoyment   to   the   suit   flat   since   1965.
ig
Similarly,   the   Respondent   enjoyed   such   access   being   the   son   of   the
deceased tenant.  The Appellants denied of having trespassed into the suit
flat on 23rd April, 2011 and/or having disturbed the peaceful rights of the
Respondent­Plaintiff.  It has been urged that there is no illegal or forceful
attempt to  enter   the  suit flat. Similarly, it is  incorrect  to  urge  that  the
Appellant No.1 unlawfully attempted to claim possession of the suit flat.
She stated that she is one of the surviving heirs of the deceased parents.
She is the sister of the Respondent and, therefore, has a legal right to the
tenancy   of   the   flat.     She   claimed   that   she   is   not   interfering   with   the
Respondent's peaceful possession of the suit flat.
17]
In para­6 of the affidavit in reply filed on 14 th June, 2011 to oppose
ad­interim relief, this is what is stated :­
“I say that however, the Plaintiff had my name plate on the front
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ig
door of the suit flat removed.  I say that this is evident from my
email to the Plaintiff (Exhibit E­3 at page 54 to the plaint to the
present suit).  I say that on 23rd April, 2011, servant Mr. Solkar
indicated to me several people and keys to the suit flat which
were   provided   by   the   Plaintiff.     I   say   that   on   hearing   this   I
summoned   a   locksmith   and   had   the   lock   to   the   front   door
changed.  I say that hence for security reasons, I changed the lock
on the front door on April 23, 2011, and promptly gave Plaintiff
the new key on his arrival in the suit flat on the morning of April
25, 2011.  I say that the Plaintiff has suppressed this fact.
I say that the Plaintiff and his wife Ms Fiona have used the
key to gain access to the suit flat repeatedly since then.   I say
that the Plaintiff has himself chosen not to stay in the suit flat,
and has trumped up false reasons as to why he is unable to live
there.     I   say   that   Plaintiff   has   falsely   claimed   that   all   the
furniture, fixture and other items in the suit flat belong to him
and   his   family.     I   say   that   even   by   the   Probated   Will   of   our
mother it is provided by our mother that “I direct that my sons
Arun and Vivek and daughter Mina shall have equal shares in
my movable estate.”   Since Vivek is now deceased, I say that I
have   an   equal   share   with   Plaintiff   as   regards   the   furniture,
fixture and other items in the suit flat.”
18]
It has been claimed that most of the major pieces of furniture in the
flat had been provided by the Appellant No.1 to the parents over the years
and those were also enlisted in this Appeal.
19]
The contents of the affidavit of Shashikant Solkar were denied and
that version was also challenged.  Similarly, from para­9 onwards the case
of the first Defendant has been extensively set out.   It is stated that the
Respondent has suppressed the fact that he is a permanent resident and
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citizen of United State of America (for short “U.S.A.”).  The Respondent­
Plaintiff   does   not   reside   at   Mumbai   and/or   in   the   suit   flat.     The
Respondent­Plaintiff was not living in the suit flat with the father and/or
mother  before  his/her   demise,  or  afterwards.    It  was  asserted  that  the
Respondent­Plaintiff left India for U.S.A. in 1992 and became a permanent
resident of the said country.   Thereafter, he became a citizen of United
States of America  and from or about the  year  2000, acquired a U.S.A.
ig
Passport   and   surrendered   his   Indian   Passport.   Reliance   was   placed   on
Annexure­B   (pages  21   and   22)   to   the   plaint   in   the   present   suit   which
according   to   the   Appellant   No.1   showed   that   the   Respondent's   Indian
Passport has been cancelled.   In para­9 of this affidavit, this is what is
stated :­
20]
“I say that the Plaintiff acquired a U.S. Passport No.01618474
issued at  Washington D.C. On 19th  September, 2000.   This is
evident from the affidavit dated 26th  July, 2005 in support of
the Judges order in Probate Petition No.39 of 2005 filed by the
Plaintiff  before this  Court  (page 7) which  is  affirmed at  the
Indian Embassy, Washington D.C. on July 26, 2005.  Annexed
hereto and marked as Exhibit “A” is a copy of the affidavit dated
26th July, 2005 in support of the Judges Order in support of the
said Probate Petition No.39 of 2005. I say that the Plaintiff's
latest U.S. Passport number is 467035831 issued by the State
Department, and valid till March 1, 2020.  This is evident from
Exhibit “A” page 19 of the Plaint to the present Suit No.1173 of
2011 showing Plaintiff's PIO card and US Passport Number and
date of expiry.”
Thereafter,   it   was   stated   that   there   is   another   brother   of   the
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APEAL(L)68.14
Respondent and the Appellant No.1 Vivek  Bhaskar Adarkar, who expired
issueless and as a bachelor in the year 2009.  Therefore, it was denied that
the Respondent is using and residing at the suit flat with his second wife
Ms. Fiona and daughter Ms. Marisha.  This was sought to be supported by
the   affidavit   dated   26th  July,   2005   verified   at   the   Indian   Embassy   in
Washington D.C which formed part of Probate Petition No.39 of 2005 filed
in this Court.  The contents of this Probate Petition are referred to in para­
ig
11   of   the   affidavit.     Then,   it   is   stated   that   the   mother   Sarala   Adarkar
passed away on 28th August, 2001.  In other words, it was stated that the
Respondent's   case   is   that   he   left   for   U.S.A.   in   mid   September   2001   or
thereabouts.   However,   this   is   totally   false.     He   did   visit   Bombay   very
briefly a few times but was never living and residing much less exclusively
in the suit flat.  From 1967, 1968 to 1970 the Respondent lived in U.K. ,
from 1970 to 1975 he lived   in Delhi in a flat at Maharani Baug, from
1975 to 1990, the Respondent­Plaintiff lived in Manila, and from 1990 till
date he has been a permanent resident in Washington D.C., U.S.A.  Thus,
he is a intermittent visitor to the suit flat, coming there only on leave and
for holidays.  He visited Bombay only in connection with the funeral of the
parents.  After every such visit, he returned to U.S.A.
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Thus, the conduct of the Respondent­Plaintiff is unfair.  He has not
21]
APEAL(L)68.14
approached the Court with clean hands.  In para­16 of the affidavit, it has
been stated that Appellant No.1 lived in the suit flat on several occasions
for extended periods i.e. from 1972 till her daughter Ayesha was born,
after various surgeries in 1970's, 1980's and 1990's and when her flats at
Girgaum, Nepean Sea Road and Bandra were being renovated.  She also
resided to look after the parents on various occasions as they were old and
ig
infirm.   It has also been stated that her daughter Ayesha was the only
grand child living in Mumbai and had spent almost every weekend and a
considerable portion of vacation in the suit flat from 1992 to 2001.  Thus,
the Appellant No.1 claimed that she has stayed at the suit flat during the
lifetime of her parents on many occasions and at that time no complaint of
trespass was filed by the Respondent­Plaintiff.  Further, it was denied that
the   Respondent­Plaintiff   and   his   family   are   in   lawful,   juridical   and/or
physical   settled   possession   of   the   suit   flat.     It   is   denied   that   the
Respondent's wife who is in fact second wife (Ms Fiona) was living in the
suit flat.  It is stated that she resides with the Plaintiff in Washington D.C.
The step daughter of the Respondent­Plaintiff has also not been residing in
the suit flat and further that she is also a U.S.A. citizen.
22]
Thus, the claim was that the father of Respondent­Appellant No.1

late B. N. Adarkar was a tenant in respect of the suit flat and that the
tenancy of the flat was never transferred to the mother after the demise of
the father or after her demise to the Respondent­Plaintiff.  Even the rent
receipts continued in the name of the deceased B. N. Adarkar.
23]
It   was   next   contended   and   in   para­19   of   the   affidavit   that   the
Respondent­Plaintiff has mixed his personal assets with the assets of the

deceased parents.   The Respondent­Plaintiff has been paying rent to the
landlord as an executor of the estate of the parents.  The Respondent was
paid the amount by cheque and cash by the Appellant No.1 so as to defray
the   expenses   in   relation   to   the   suit   flat   including   the   rent   thereof.
However,  no accounts have   been  submitted  by the  Respondent­Plaintiff
and,   therefore,   a   Misc.   Petition   has   been   filed   in   this   Court   seeking
direction   to   the   Respondent   as   an   executor   of   the   estate   to   render
accounts.
24]
After setting out as to how the tenancy rights of the father would
devolve on the heirs by virtue of section 7(15) of the Maharashtra Rent
Control   Act,   1999,   it   has   been   stated   that   a   suit   has   been   filed   being
R.A.D.   Suit   (Stamp)No.2242/2011   in   the   Court   of   Small   Causes   at
Bombay for a declaration that the Appellant No.1 is a tenant in the suit

flat   and   the   tenancy   is   protected   by   virtue   of   the   Maharashtra   Rent
Control Act, 1999.  The reliefs claimed by the Appellant No.1 in the plaint
25]
filed in the Small Causes Court are, then, referred.
Thereafter,   the   Appellants   denied   that   the   Appellant   No.1   is
occupying the Respondent's Bed room.   They referred to the location of
the bed rooms and submit that the Appellant No.1 is occupying her own
bed room.  The bath rooms have been modified so as to be accessible for
the elderly and handicapped.  The Appellants made an allegation that the
Respondent has locked up two of the bed rooms  in the four bed room flat.
The plea of being handicapped is invoked in order to deprive Appellant
No.1 of her own bed room.  It has been stated that the offer was made to
install   air­conditioner   in   the   Respondent's   bed   room   on   his   arriving   in
Mumbai   but   that  offer  has   been   rejected.   It   has   been   alleged   that   the
Respondent has chosen to live in luxury in 5 Star Hotels/clubs on his own
volition.  On this basis, the legal right to enter, use and occupy the flat as
one of the surviving heirs of the Appellants has been asserted.  There are
various allegations made of intimidation and assault.  The area of the flat
has been mentioned as 4000 sq. ft. and, therefore, all the allegations in so
far as the claim of damages is concerned, are denied.

An   affidavit   in   re­joinder   has   been   filed   so   as   to   deal   with   the
26]

contents of the affidavit in reply dated 14 th June, 2011 and the contents of
the documents.  We are now not concerned with the issue of jurisdiction
of this Court because that is already dealt with and decided by us by our
judgment and order in Appeal No.312 of 2012 decided on      16 th June,
In the affidavit in re­joinder, the Respondent claims that there are
ig
27]
2014.
admissions   with   regard   to   the   settled   possession   of   the   Respondent   in
respect of the suit flat.  The Respondent states that the Appellant No.1 has
admitted that whenever the Respondent was in Mumbai, he resides at the
suit   flat.     The   visits   are   referred   and   what   is   crucial   according   to   the
Respondent, is the admission, that the keys to the suit flat prior to 23 rd
April, 2011 were with the Respondent and not with the Appellant No.1.
Therefore, the claim of exclusive possession is admitted.  Then, Exhibit E­5
to the plaint is the email sent by Appellant No.1 in which the Appellant
No.1's admitted that the Respondent had free and unrestricted use of the
suit   flat.     There   is   an   admission,   further,   that   after   marriage   with   the
Appellant No.2 in 1971 an Appellant No.1 has left the suit flat and not
residing therein.   These extensive references to the pleadings have been
made in paragraph 4(c) of the affidavit in re­joinder.

Thereafter, it is asserted that the Respondent is in settled possession
28]

and   the   suit   is   based   on   the   exclusive   and   settled   possession   of   the
Respondent.  In such circumstances and asserting that the Respondent has
been deprived of effective enjoyment of the suit flat, for the reasons which
are   set   out   in   para   4(g)   that   the   re­joinder   reiterates   the   case   of   the
Respondent.     It   also   reiterates   the   plea   that   the   Respondent   has   been
paying rent to the  landlord since  the  death of  his father, namely, from
ig
1998.   The other expenses have also been incurred by the Respondent.
We need not refer to the denials in the re­joinder except the position with
regard   to   the   bedrooms   and   the   bathrooms   set   out   in   para­25   of   the
re­joinder.
29]
This affidavit was filed in August 2011.  There is another affidavit­
in­reply filed on 30th  September, 2011 by the Appellants but it reiterates
the stand taken earlier.
30]
It is pertinent to note that on this Notice of Motion, a ad­interim
order was passed by this Court on 15 th  June, 2011.   That order reads as
under:­
“1. The   learned   counsel   appearing   on   behalf   of   the
defendants confirms that the plaintiff is in exclusive occupation
and   possession   of   two   bedrooms   in   the   suit   premises   the

Then,   the   report   of   the   Court   Commissioner   has   been   placed   on
31]

balcony and the bathrooms shown in red hatch  lines on the
floor plan, tendered in Court, taken on record and marked “X”.
Rest of the flat other than one bedroom is, even according to
the defendants used in common by the parties.
2.
Mr.Kotwal states that these bedrooms are in very poor
condition and that the plaintiff cannot live in the same.
The   Prothonotary   &   Senior   Master   shall   appoint   an
officer of this Court to inspect the suit premises and make a
report. The  report  shall   furnish  the condition of  each  of  the
rooms. The officer shall be entitled to avail of the assistance of
a photographer. The costs of the officer shall initially be paid
equally by the plaintiff on the one hand and the defendants
on the other and shall be subject to the final orders.
Stand over after two weeks.”
record   and   the   same   reflects   that   there   are   bedrooms   with   attached
toilets/bathroom and a bathroom which has been indicated in the report,
has the amenities and facilities for the purposes of usage by a physically
handicapped person.  There is also a floor plan and which is an Annexure
of the report (Annexure­III).   This shows the bedrooms which have been
used by the Appellants and the Respondents.  It shows the other amenities
in the suit flat.

32]
It   is,   on   this   material,   that   the   Notice   of   Motion   was   placed   for
hearing and final disposal before the learned Single Judge of this Court
and by the impugned order he has allowed it.

Aggrieved and dissatisfied with this order, the present Letters Patent
33]

34]
Appeal has been filed.
Mr.  Madon,   learned   Senior   Counsel,   appearing   in   support   of   this
Appeal   submitted   that   the   impugned   order   is   contrary   to   law.   It   is
completely   erroneous   inasmuch   as   the   suit   itself   is   decreed   at   the
interlocutory stage.  Mr. Madon, has invited our attention to our judgment

on the point of jurisdiction and particularly para­79  thereof to urge that
the suit has been labeled as not based on the residence of a member of the
family with the original tenant at the time of his/her death and to the
exclusion of other members.   The learned Single Judge while answering
the issue of jurisdiction had held that this case is of a dispute between two
heirs of the deceased tenant and both claiming the tenancy rights to the
exclusion of the other.  In other words, this is an assertion of succession to
the   tenancy   rights   in   respect   of   the   said   suit   flat   by   one   heir   to   the
exclusion of other.   This is an inter­se dispute between two persons who
are the heirs of the deceased tenant and not agreeing  as to who amongst
them or one of them would succeed to the tenancy rights.
35]
Mr. Madon submits that such observations have been made by us in
para   79   and   80   of   our   judgment.     He   submits   that   para   102   of   our

Mr.   Madon   submits   that   learned   Single   Judge   in   passing   this
36]
judgment would also be relevant on this aspect.
impugned order and making the Notice of Motion absolute in terms of
prayer clause (a) has lost sight of this vital aspect.   In that regard, our
attention   is   invited   to   paragraph   No.8   of   the   impugned   order   by   Mr.
Madon.  He submits that the observation in paras 8, 12 and the operative

part in the learned Single Judge's order, would demonstrate that today the
Appellant's stand completely excluded from the suit flat.  Now, even after
there is a dispute with regard to the succession to tenancy rights between
two heirs, the Appellants admittedly being heirs have been restrained from
entering upon, remaining or using the suit flat.  The Commissioner's report
indicates that there are 2 bedrooms with attached bathrooms, there is a
pooja room and there is a common area.  In such circumstances, and when
the learned Judge has not gone into the question as to who amongst the
Appellants and the Respondents would prima facie succeed to the tenancy
rights,  then,  the  impugned order  cannot be   sustained.    Mr. Madon has
taken us through the plaint averments to support his arguments about the
frame of the suit.  He submits that if such vital issues are left unanswered
by the learned Single Judge, then, the impugned order must be set aside
or alternatively, the Notice of Motion must be decided again.

Alternatively   and   without   prejudice   to   the   above   submissions,
37]

Mr. Madon submits that the Respondent­Plaintiff has failed to make out a
strong   prima   facie   case   of   his   settled   and   exclusive   possession.   He
submitted that the learned Judge could not have granted any relief in the
suit of the present nature and in the absence of strong prima facie proof, a
final relief cannot be granted at an interlocutory stage.  He submits that if
the prayers in the suit are considered, then, no temporary injunction or

relief in aid of the final relief can be granted.   This is not a case of the
Respondent­Plaintiff   being   allegedly   dispossessed   and   wrongfully.   If   the
suit claim is essentially of damages, then, the reliefs as prayed cannot be
granted at an interlocutory stage.  Mr. Madon submits that prayer clause
(a) of the Suit is for damages and that is a money claim.  Prayer clause (b)
is   for   a   permanent   injunction   but   there   is   no   declaration   claimed
preceding the same.   If prayer clause (b) is the final relief in the plaint,
then, that cannot be granted at an interlocutory stage unless there is a
prima facie case and the balance of convenience is wholly in favour of the
Respondent­Plaintiff and that grave and irreparable harm and injury will
be caused in case such a relief is not granted.  Mr. Madon submits that the
claim of the Respondent­Plaintiff in the suit could have been protected by
an appropriate arrangement at an interlocutory stage so as not to oust the
parties from the suit flat.   During the pendency of the suit, the subject

matter  thereof   could  have   been   protected  by  such  arrangement  as  was
permissible  in  law including preventing the  alienation  of the  flat or  its
disposal by the parties.  However, a mandatory order and injunction that is
granted has non­suited the Appellants completely.
38]
Mr. Madon has, then, taken us through the documents relied upon
by   the   Respondent­Plaintiff   to   demonstrate   his   settled   and   exclusive

possession.  Mr. Madon submits that no rent is paid in respect of the suit
flat by the Respondent to the exclusion of the Appellant No.1.   There is
absolutely no case of exclusive residence as well.  A servant is stated to be
residing   in   a   portion   of   the   flat   and   allegedly   to   take   care   of   it.     The
possession   of   the   servant   cannot   be   said   to   be   exclusive   in   such
circumstances,   even   if,   that   servant   is   engaged   or   employed   by   the
Respondent.     The   Respondent   himself   is   not   an   Indian   citizen.     He   is
permanently residing in U.S.A. His intermittent visits to the flats and India
cannot, therefore, be said to be proving his exclusive settled possession. In
fact,   the documents such as bank account extract, the  telephone bills,
electricity bills which are produced would show that the learned Judge
could not have relied upon them at an interlocutory stage as the same
carry   the   name   of   the   deceased   tenant   B.   N.   Adarkar   and   not   of   the
Respondent­Plaintiff.  The rent receipts were not transferred in the name

of the Respondent­Plaintiff though he claims who have been paying the
rent in respect of the suit flat.   The claim of the Respondent­Plaintiff to
settled possession is belied by an affidavit filed by him seeking a probate
of the will of the late mother of the Appellant No.1 and Respondent.  In
that, it is admitted by the Respondent that he resides in U.S.A.  He is an
executor of the estate of the deceased.  The rent has been paid by him in
this   capacity.     The   Probate   Proceedings   are   contested.     In   these

circumstances   and   when   there   is   no   document   produced   which   would
conclusively   demonstrate   such   claim   of   settled   possession,   then,   the
learned Judge should have refused the prayer and rather continued the
ad­interim order which was passed by this Court on 15th June, 2011.  
39]
For all these reasons, Mr. Madon submits that the impugned order
deserves   to   be   quashed   and   set   aside.   Mr.   Madon   has   relied   upon   the
compilation of documents which was produced before the learned Single
Judge.  Mr. Madon also submits that the email relied upon should be read
in its entirety and not picking one or two sentences therefrom.  In fact, the
emails from the Respondent would show that they are not emanating from
the address of the suit flat.  The email that has been produced at page 345
of the paper book would show that the Respondent has been coming to
Bombay only on a few occasions. He was not a regular visitor to Bombay

leave aside being such visitor to the flat.  In such circumstances and when
the claim of the Appellant No.1 as being a tenant of the flat property, has
been admitted, then, this Notice of Motion should have been dismissed.
The impugned order, therefore, must be set aside.  Mr. Madon relies upon
the   following   judgments   and   decisions   in   support   of   his   above
contentions:­
1) Mahavir Associates V/s. Anthony reported in 2014 (1) Mh. L.J.
ig
86;
2) Dorab   Cawasji   Warden   V/s.   Coomi   Sorab   Warden   And   Others
reported in (1990) 2 Supreme Court Cases 117;
3) Mohd. Mehtab Khan And Others V/s. Khushnuma Ibrahim Khan
And Others; and
4) Anathula   Sudhakar   V/s.   P   Buchi   Reddy   (Dead)   By   LRS.   And
.
Others reported in (2008) 4 Supreme Court Cases 594.
On   the   other   hand,   Mr.   Tulzapurkar,   learned   Senior   Counsel,
40]
appearing on behalf of the Respondent­Plaintiff submitted that the Appeal
should be dismissed.  He submits that the view taken by the learned Single
Judge is a plausible and possible view. It does not require any interference
in this Courts further appellate jurisdiction. He has invited our attention to
paragraphs 8 and 9 of the impugned order. He submits that this finding is
inconsistent with the pleading and particularly paragraph 10 of the plaint
at page 290.   The case pleaded thus, is not only of tenancy but that the
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APEAL(L)68.14
Respondent­Plaintiff is the only person entitled to succeed to the same, is
the   position   emerging   from   certain   undisputed   events.   Mr.   Tulzapurkar
submits that a proper and fair reading of the plaint would disclose that the
Respondent­Plaintiff pleaded his settled possession and to the exclusion of
the   original   Defendant   No.1­Appellant   No.1   before   this   Court.     Mr.
Tulzapurkar submits that at an interlocutory stage, learned Judge was not
called   upon   to   express   any   prima   facie   opinion   much   less   render   any
ig
conclusive finding on the issue of succession to the tenancy rights.  That
cannot be decided at the interlocutory stage. The learned Judge has not
ignored the case of Appellant No.1 as set out in the affidavits. However,
the   argument   was   that   the   Defendant   No.1   barged   into   the   premises,
namely, suit flat.   She was never in possession of the suit flat after the
death of the mother.   She has failed to show even, prima facie, that she
retained control or was in possession of the premises which are subject
matter of the suit.   Mr. Tulzapurkar has invited our attention to certain
documents from the compilation tendered by the original Defendants and
particularly pages 85 and 88 thereof.  He has submitted that the requisite
tests which enable the Court to pass the interim order in this form and
manner are satisfied and in that regard he relies upon the pages 347 and
348 of the paper book and which would indicate that the possession as
also   the   control   of   the   suit   flat   with   the   Respondent   No.1.     In   these
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APEAL(L)68.14
circumstances and when the Appellant No.1 is not disputing joint tenancy
of the Appellant No.1 and the Respondent in respect of the suit flat, then,
the Notice of Motion was rightly made absolute.                                         Mr.
Tulzapurkar submits that the Defendant No.1 entered the suit flat for the
first time in the month of April 2011.  She had left the premises and that is
apparent   from   the   contents  of  the  affidavit   particularly  page   95  of  the
paper book.  Then, our attention is invited to the fact that the Defendant
ig
No.1 never resided in the suit flat.   The intermittent visits also stopped
after   the   death   of   the   parents.     In   such   circumstances,   when   the
Respondent No.1 is in juridical possession and which is to the knowledge
of the Appellant No.1, then, the learned Judge's order cannot be faulted.
The   Appeal,   therefore,   should   be   dismissed.     Mr.   Tulzapurkar   has   also
relied upon the supporting affidavit of Mr. Y. H. Malegam and even the
letter, copy of receipt of which is at Annexure­H,  page 355 of the paper
book.
41]
In support of the above contentions, Mr. Tulzapurkar has relied on
the following judgments:­
1) Krishna   Ram   Mahale   (Dead)   By   His   LRS.   V/s.   Mrs.   Shobha
Venkat Rao reported in (1989) 4 Supreme Court Cases 131;
2) Rame Gowda (Dead) By LRS. V/s. M. Varadappa Naidu (Dead)
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APEAL(L)68.14
By LRS. and Another reported in (2004) 1 Supreme Court Cases
769;
3) Variegate   Realestate   Private   Limited   V/s.   Tehmul   R.   Irani   and
Mehervan   R.   Irani   reported   in   2011   Vol.   113   (1)   Bom.   L.R.
0449;
4) Order of Hon'ble Supreme Court dated 10th  December, 2010 in
the case of Tehmul Rustom Irani & Anr. V/s. Variegate Real Estate
P
. Ltd.; and
5) T.   Lakshmipathi   and   Others   V/s.   P   Nithyananda   Reddy   and
.
With   the   assistance   of   the   learned   Senior   Counsel,   appearing   for
42]
ig
Others reported in (2003) 5 Supreme Court Cases 150.
parties, we have perused the Appeal paper book including the affidavits
filed in reply, re­joinder and further affidavits of parties.  We have perused
the relevant documents from the compilation.  We have also perused the
impugned order.
43]
The learned Judge has proceeded to grant interim reliefs in terms of
prayer clause (a) and which is widely worded.  The prayer is to grant an
injunction against the Appellants from entering upon or remaining on the
suit flat or any part thereof without the permission of the Respondent­
Plaintiff.   This prayer is identical to prayer clause (b) of the plaint (see
page 303).  Thus, a permanent injunction is claimed in the above terms in
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APEAL(L)68.14
the   plaint   and   in   the   Notice   of   Motion   for   interim   reliefs   a   temporary
injunction in identical form is prayed.  The suit is in effect for possession
of the suit flat and to be exclusion of the other heir of the deceased tenant.
A   prayer   of   the   nature   made,   prima   facie,   is   to   obtain   such   exclusive
possession though couched in the form of a mandatory injunction.  If the
Respondent establishes finally that he is the only heir entitled to succeed
to the tenancy rights, then, alone he can obtain the above relief.   That
ig
inquiry   and   adjudication   will   be   duly   at   the   Trial.     Today,   when   the
Respondent is also prima facie pleading a case of joint tenancy, then, he
cannot   oust   the   other   heir,   his   real   sister   from   the   suit   flat   at   an
interlocutory stage.  More so, when the inquiry as above is yet to be held.
Further,   the   settled   possession   as   claimed   and   to   the   exclusion   of   the
Appellant   No.1   must   also   be   seen   in   this   light   and   the   admitted
circumstances of both parties residing and independently far away from
the suit flat.   The Respondent is not residing therein continuously.   He
does   not   work   for   gain   in   Bombay.     Some   visits   to   Mumbai   and   in
connection with the affairs of the Estate, prima facie, does not amount to
continued, settled possession of the suit flat much less to the exclusion of
the Appellant No.1.   While there is no impediment in law in granting a
mandatory injunction at an interlocutory stage or a temporary injunction
in a mandatory form, yet, such reliefs should be granted in exceptional
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APEAL(L)68.14
circumstances.   Both sides have placed reliance on the judgment of the
Hon'ble   Supreme   Court   in   the   case   of   Dorab   Cawasji   Warden   (supra).
Having perused that judgment carefully, we are of the opinion that the
Hon'ble Supreme Court has referred to the tests which have to be applied
and which must be satisfied before such a relief is granted.  The tests are
laid   down   in   para   16   of   the   judgment   in   the   case   of       Dorab   Cawasji
44]
ig
bearing in mind these guidelines.
Warden (supra).   Thus, the discretion has to be exercised judiciously and
We have considered this matter in the backdrop of these very tests
and guidelines laid down by the Hon'ble Supreme Court. We are also quite
aware of the other set of principles laid down by the Hon'ble Supreme
Court and which are reiterated in the recent decision in the case of Mohd.
Mehtab Khan and others V/s. Khushnuma Ibrahim Khan and others
(2013) 9 SCC 221.  An Appellate Court must be slow to interfere with a
discretionary order of the trial Court granting temporary injunction.  The
order must not be interfered with only because another view of the matter
is   possible.     The   order   must   be   interfered   with   only   if   the   exercise   of
discretion   by  the   learned   Judge   was   found   to   be   palpably   incorrect   or
untenable.  The Hon'ble Supreme Court, therefore, has cautioned that the
Appellate power is not to be exercised as a matter of course but the tests
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We have, therefore, cautiously and carefully perused the order of
45]
in that behalf have been referred to in para 17 of this judgment.
the learned Single Judge.   We are aware that a learned Single Judge of
this   Court   in   exercise   of   the   original   jurisdiction   of   this   Court,   has
considered the prayer for interim relief.  However, for the reasons that we
indicate hereafter, we are unable to agree with the learned Single Judge.
ig
In our opinion, the learned Single Judge has lost sight of the tests and
legal principles in granting such a wide relief.  That relief virtually decrees
the suit itself.  While the Hon'ble Supreme Court does not hold that grant
of a final relief at an interlocutory stage is totally prohibited but what the
Hon'ble   Supreme   Court   indicates   is   that   such   relief   should   be   granted
when the same is in aid of the final relief.  If the subject matter of the suit
or   the   proceedings   can   be   preserved   and   protected   by   the   interim
arrangement which would balance the case of both sides, then, this is an
exercise which should be carried out.  Granting of virtually the final relief
at an interlocutory stage, without a trial, without an opportunity to the
party to lead oral and documentary evidence is, therefore, not justified.
46]
In the present case, Mr. Madon has rightly placed reliance on the
foundation   or   basis   of   the   Respondent's   grievances   in   the   plaint.     The
Respondent   admittedly   is   not   residing   permanently   in   India.   He   has
obtained   and   has   been   granted   a   citizenship   of   the   United   States   of
America.  He is a person who was in service and on account of which he
had to travel and settle down in the above referred countries.   That his
father was a tenant in respect of the suit flat is not disputed.   That his
father died in the year 1998 and thereafter the affairs in relation to the
property were looked into and managed by the Respondent­Plaintiff is not

disputed either.  That the mother resided in the suit flat till her death but
what   the   Respondent­Plaintiff   has  essentially   pleaded   is  not  a   claim   of
tenancy on the footing of his residence with and at the time of the death
of the original tenant, namely, his father and mother.  He has pleaded that
he is one of the heirs of the parents.   In preference to other heir of his
parents, namely, his real sister, Appellant No.1, it was the wish and desire
of his parents that he must succeed to the tenancy rights.  That is the basis
on   which   the   plaint   proceeds   and,   therefore,   the   dispute   is   as   to   who
succeeds to the tenancy rights in respect of the suit flat after the death of
the original tenant.  In such a suit, if the injunction as claimed, has to be
granted, then, the Respondent­Plaintiff ought to have placed before the
Court enough material to indicate that his possession in the suit flat was
exclusive and not intermittent.  That he visited and resided in the suit flat
on   more   occasions   than   the   Appellant   No.1   is,   thus,   prima   facie   not

conclusive.  The Appellant must have produced a strong prima facie proof
of his possession of the suit flat and to the exclusion of the Appellant No.1.
That   material   is   found   to   be   lacking,   prima   facie.     In   that   regard,   the
learned Single Judge has relied upon the rent receipts from the time of the
mother's death in August 2001 till the date of the alleged trespass by the
original Defendants.   These according to the learned Judge show that for
the last more than 10 years, it is the Respondent­Plaintiff who has paid the
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rent by cheque and rent receipts have been issued to him by the landlord,
though in the name of his deceased father.  In that regard, what we find
from perusal of these bills is that they have been issued in the name of the
deceased father.  Each of these bills and which have mentioned the cheque
number   and   the   date   and   the   period   indicate   the   name   of   Mr.   B.   N.
Adarkar.  If,  these rent receipts from Annexures C­I onwards are carefully
perused, they do not in any manner indicate that the rent receipts have
been transferred after the death of the father either in the name of the
mother or thereafter in the name of the Respondent­Plaintiff.  In fact, no
document   has   been   placed   on   record   making   such   a   request   and
emanating from the Respondent­Plaintiff.  Thus, the monthly rent receipts
and payment made by cheque, by the Respondent­Plaintiff, are not enough
to show the settled and exclusive possession.   The bank account of the
Respondent­Plaintiff may show the address of the suit flat and equally the

telephone bills and electricity bills but they do not indicate his exclusive
and settled possession.   That there are certain documents in the form of
communications and letters would only show that the Respondent­Plaintiff
indicated the address of the suit flat for the purposes of correspondence
and communication with him.  That is to indicate the place where he can
be contacted and communicated in India.  However, in the backdrop of his
own case as set out in the plaint, this material can never be said to be

decisive   and   even   prima   facie.     In   that   regard,   what   we     find   from   a
reading   of   the   plaint   itself   is   that   the   parents,   the   Defendant
No.1(Appellant   No.1)   and   the   Respondent­Plaintiff   together   with   their
brother Vivek B. Adarkar resided in this flat since December 1965.   The
Respondent's­Plaintiff's father was a Deputy Governor of the Reserve Bank
of India.  That the tenancy dates back to 1969 is set out in para 3 of the
plaint.
47]
We have referred to the plaint averments in extenso in the foregoing
paragraphs of this judgment only to satisfy ourselves as to whether any of
the materials referred to by the learned Single Judge can be said to be
prima facie conclusive and to establish exclusive and settled possession as
claimed by the Respondent­Plaintiff.  Upon these materials at best, it can
be inferred that the Respondent­Plaintiff was taking care of and managing

the property after the death of  his parents.  By paying the amounts such
as rent, maintenance and salaries of the servant and staff so also  paying
visits, the Respondent­Plaintiff was safeguarding and protecting the rights
claimed in  the  suit flat.   That he had a set of  keys for  the  purpose of
accessing the flat and which were retained by him does not mean that he
was in exclusive possession.  His possession, therefore, cannot be said to
Apart therefrom, when we understand the controversy between the
48]
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be of the nature and character claimed by him.
parties to be  of  the  nature  noted above, namely, succession  to tenancy
rights after the death of the parents, then, it is really immaterial as to
whether the Respondent­Plaintiff is in possession of the suit flat and after
the marriage of the Appellant No.1 and her departure therefrom.  We have
noted   that   this   controversy   is   not   as   to   who   was   residing   with   the
deceased tenant at the time of the death but amongst several heirs who
would   succeed   to   the   tenancy   rights.     Until   and   unless   that   issue   is
decided   and   at   the   trial   all   that   was   required   to   preserve   the   subject
matter of the dispute. With respect, the learned Judge has clearly missed
this point.  Moreover, we also find that the reliance placed by the learned
Judge   on   the   affidavit   of   the   servant   Shashikant   Solkar   is   entirely
misplaced.  The learned Judge himself has referred to the contents of this
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APEAL(L)68.14
affidavit.     The   affidavit   indicates   that   the   servant   was   employed   by
Respondent­Plaintiff since June 2006.  He resides in the suit flat with his
family.  That affidavit has been carefully perused by us and we do not find
that the same can establish the continued and exclusive possession of the
Respondent­Plaintiff.  The affidavit of the neighbour cannot be said to be
conclusive at this prima facie stage and in the teeth of the case of the
Respondent­Plaintiff   as   set   out   in   the   plaint.     The   Respondent­Plaintiff
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himself has not disputed his employment and his engagement and service
rendered   abroad   throughout.     He   has   not   disputed   the   acquisition   of
citizenship   of   United   States   of   America.     Having   only   visited   the   flat
during the lifetime of his parents and thereafter intermittently does not
prima facie mean that the settled and exclusive possession is established
by any means.   There is no necessity than to see whether the Appellant
No.1 resided in the flat.   That she has been visiting her parents is clear
from the assertions in the plaint.  Further, we find that her reliance placed
on the contents of the Probate Petition is appropriate.  The acquisition of
the   U.S.   Passport   and   citizenship   is   established   by   the   fact   that   the
Respondent­Plaintiff states therein that he left India  for U.S.A. in 1992
leaving his parents who were residents of Mumbai.   Since then, he has
been a permanent resident of U.S.A.  It has been stated in para 3 of this
affidavit   dated   26th  July,   2005   verified   at   the   Indian   Embassy   in

Washington D.C. which formed part of Probate Petition No.39 of 2005 that
after   being   informed   of   the   imminent   demise   of   the   mother,   the
Respondent   visited   Mumbai   in   August   2007   for   the   funeral   and   other
obsequial     ceremonies  pertaining   to  the   deceased.     The   mother   passed
away on 28th  August, 2001.   Then, it is stated in this affidavit that the
Respondent­Plaintiff left for U.S.A. in mid September 2001 or thereabouts.
He visited Mumbai very briefly   few times and during his brief stays he

could   not   obtain   legal   advice   and     only   when   he   visited   Mumbai   in
September   2004   he   consulted   the   advocate   regarding   formalities   of
obtaining   a   probate.     Thus,   when   the   Respondent­Plaintiff   does   not
dispute that from 1967, 1968 to 1970 he lived in U.K., thereafter in Delhi,
thereafter   on   several   assignments   firstly   in   Manila,  Philippines  and
thereafter in U.S.A., any occasional or intermittent visit, therefore, could
not be said to be establishing the settled possession prima facie.   Apart
therefrom, the case of trespass by the Appellant No.1 is not established in
this case as being a heir of the deceased tenant and whose joint tenancy is
also admitted prima facie, it cannot be said that she is a rank trespasser.
That she entered the suit flat after a long duration and on account of some
differences and disputes cannot, therefore, give a right to the Respondent
to exclude her from possession at an interlocutory stage.   He cannot, on
the case as summarized by us above, be entitled to a temporary injunction

in   mandatory   form   particularly   in   terms   of   the   prayer   clause   (a)
49]
reproduced above.
In the above circumstances, we are of the opinion that the learned
Single Judge was in clear error in allowing the Notice of Motion.
The reliance placed by the learned Single Judge on the judgments
50]
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for granting the above prayer is some what misplaced.  In para 13 of the
order under challenge, the learned Judge who was aware of the decision
on the preliminary issue  proceeds to term the Appellants possession as
wrongful.     The   learned   Judge   has   accepted   the   case   of   trespass   by
Appellants and as  pleaded by the  Respondent.   The learned Judge has
proceeded to hold that the Respondent is in exclusive possession.   Once
the Respondent was not able to establish a prima facie case of settled and
exclusive   possession,   then,   the   reliance   placed   on   the   judgments   and
noted in paragraphs 11 to 14 was not appropriate.  The reliance placed by
the learned Judge on the judgment of the Supreme Court in the case of
Rame Gowda (Dead) By LRS. V/s. M. Varadappa Naidu (Dead) by LRS.
and another reported in (2004) 1 Supreme Court Cases 769  was not
appropriate.   In the case of Rame Gowda (supra)   the facts were that a
suit was filed alleging title so also possession over the disputed piece of

land.  The trial Court found that although the Plaintiff had failed to prove
his title, he had succeeded in proving his possession over the suit property
which he   was entitled  to  protect  unless dispossessed therefrom   by due
process   of   law.    On   this   finding,   the   injunction   was   issued   against   the
Defendant restraining him from interfering with the peaceful possession
and  enjoyment   of   the  Plaintiff  over  the   suit   property.    The  Defendants
Appeal   has   been   dismissed   throughout.     It   is   in   that   regard   that   the
Hon'ble Supreme Court refers to some tests which have been evolved over
a passage of time.  In the case of Rame Gowda (supra) the possession was
undisputed.  Paragraphs 8 and 9 on which reliance was placed laid down
the principle that the person in peaceful possession is entitled to retain his
possession   and   in   order   to   protect   such   possession   he   may   even   use
reasonable   force   to   keep   out   a   trespasser.     We   do   not   see   how   any
assistance can be derived from these observations and conclusions for the
Hon'ble Supreme Court itself clarifies that the possession must be settled
possession,   extending   over   a   sufficiently   long   period   of   time   and
acquiesced to by the true owner.   In the present case, this test has not
been satisfied for the Appellant No.1, cannot be said to be a trespasser.
Secondly, by not asserting her right as a heir of the deceased tenant, she
could not have prima facie acquiesced in the position, as claimed by the
Respondent.  The possession of the Respondent was not settled inasmuch

as  the   Hon'ble  Supreme  Court   itself   clarifies   that   an   occupation   of   the
property by a person as an agent or a servant acting at the instance of the
owner   will   not   amount   to   actual   physical   possession.     The   physical
possession in this case even applying these standards was not settled.
51]
Once this aspect is clarified, then, no assistance can be derived from
the   order   of   the   Division   Bench   in   the   case   of  Variegate   Realestate
Private Limited V/s. Tehmul R. Irani and Mehervan R. Irani reported
in 2011 Vol.113 (1) Bom. L.R. 0449. It is in these circumstances that we
find that there was substance in the objection raised by the Appellants that
an interim order which practically amounts to granting a final relief at the
interim stage should not be passed.   In this regard, a reference can be
made to the judgment of the Hon'ble Supreme Court in the case of Mohd,
Mehtab Khan and Others V/s. Khushnuma Ibrahim Khan and Others
reported   in   (2013)   9  Supreme   Court   Cases   221.    There,  the   Hon'ble
Supreme Court held thus:
“17. While the bar under section 6(3) of the SR Act may not
apply to the instant case in view of the initial forum in which
the suit was filed and the appeal arising from the interim order
being under the letters patent issued to the Bombay High Court,
as held by a Constitution Bench of this Court in P
.S. Sathappan
V/s. Andhra Bank Ltd., what is ironical is that the correctness of
the   order   passed   in   respect   of   the   interim   entitlement   of   the
parties   has   reached   this   Court   under   Article   136   of   the
Constitution.  Ordinarily and in the normal course, by this time,

the suit itself should have been disposed of. Tragically, the logical
conclusion to the suit is nowhere in sight and it is on account of
the proverbial delays that have plagued the system that interim
matters are being contested to the last Court with the greatest of
vehemence   and   fervour.     Given   the   ground   realities   of   the
situation it is neither feasible nor practical to take the view that
interim   matters,   even   though   they   may   be   inextricably
connected with the merits of the main suit, should always be
answered   by   maintaining   a   strict   neutrality,   namely,   by   a
refusal   to   adjudicate.   Such   a   stance   by   the   Courts   is   neither
feasible nor practicable.  Courts, therefore, will have to venture
to decide interim matters on consideration of issues that are best
left for adjudication in the full trial of the suit.  In view of the
inherent risk in performing such an exercise which is bound to
become   delicate   in   most   cases   the   principles   that   the   Courts
must  follow   in  this  regard are  required  to  be  stated   in  some
detail though it must be made clear that such principles cannot
be entrapped within any straitjacket formula or any precise laid
down norms.  The Courts must endeavour to find out if interim
relief can be granted on consideration of issues other than those
involved in the main suit and also whether partial interim relief
would satisfy the ends of justice till final disposal of the matter.
The consequences of grant of injunction on the defendant if the
plaintiff is to lose the suit along with the consequences on the
plaintiff where injunction is refused but eventually the suit is
decreed has to be carefully weighed and balanced by the Court
in every given case.   Interim reliefs which amount to pre­trial
decrees must be avoided wherever possible.   Though experience
has shown that observations and clarifications to the effect that
the findings recorded are prima facie and tentative, meant or
intended only for deciding the interim entitlement of the parties
have not worked well and interim findings on issues concerning
the   main   suit   has   had   a   telling   effect   in   the   process   of   final
adjudication it is here that strict exercise of judicial discipline
will be of considerable held and assistance.   The power of self­
correction and comprehension of the orders of superior forums
in the proper perspective will go a  long  way in  resolving the
dangers inherent in deciding an interim matter on issues that
may have a close connection with those arising in the main suit.
18. There is yet another dimension to the issues arising in the

present appeal.   The interim relief granted to the plaintiffs by
the appellate Bench of the High Court in the present case is a
mandatory direction to hand over possession to the plaintiffs.
Grant of mandatory interim relief requires the highest degree of
satisfaction   of   the   Court;   much   higher   than   a   case   involving
grant of prohibitory injunction.  It is, indeed, a rare power, the
governing principles whereof would hardly require a reiteration
inasmuch as the same which had been evolved by this Court in
Dorab Cawasji Warden V/s. Coomi Soran Warden has come to b
firmly embedded in our jurisprudence.”
Though   both   sides   have   relied   on   this   judgment   for   different
52]

reasons, what we find is that the Hon'ble Supreme Court has emphasized
the   principle   that   the   Courts   do   not   as   a   matter   of   course   venture   to
decide   interim   matters   on   consideration   of   issues   that   are   best   left   for
adjudication in the full trial of the suit.   There is an inherent risk in the
same and, therefore, such issues can be kept out of consideration and the
prayer for interim relief considered and granted on other issues.  Meaning
thereby, leaving out those which require adjudication in the full trial of the
suit.  The Courts must endeavour to find out whether partial interim relief
would   satisfy   the   ends   of   justice   till   final   disposal   of   the   matter.     A
balancing has to be done and as has been held in the aforesaid paragraphs
by the Hon'ble Supreme Court.
53]
We   are   of   the   opinion   that   this   is   not   a   case   where   we   are
interfering with a discretion exercised by the learned Single Judge only

because another view is possible. We have found that the discretion has
not been exercised by applying the settled principles of law.  The materials
have not been reassessed in order to reach a conclusion different from the
learned Single Judge but to find out as to whether the discretion could
have at all been exercised in favour of the Respondent­Plaintiff.  Since the
materials before the learned Single Judge do not lead to a prima facie
conclusion of the Respondent's settled possession and given the nature of

the controversy and dispute, the learned Single Judge was not justified in
granting such a wide and broad interim relief, that we are constrained to
interfere   in   our   appellate   jurisdiction.     There   is   a   serious   doubt   as   to
whether such a interim injunction could have been granted.  In the given
facts   and   circumstances,   the   view   taken   by   the   learned   Single   Judge
cannot be termed as a possible one.  Therefore, we are not in agreement
with Mr. Tulzapurkar that the appellate jurisdiction cannot be exercised to
upset   or   reverse   the   impugned   order.     We   are   of   the   opinion   that   the
learned   Single   Judge   could   have   disposed   of   the   Notice   of   Motion   by
maintaining the position as emerging from the report of the Court Officer.
The report of the Court Officer indicates the area of the flat, its division
into living room, kitchen, dinning area/room and bed rooms with attached
bathrooms.     They   were   enough   for   the   purposes   of   use   by   the   parties
during the pendency of the suit.  The learned Judge could have, therefore,

directed that the said position be maintained till the disposal of the suit by
both sides and by additionally restraining them from creating any third
party right or inducting any third party in possession in any manner till
the disposal of the suit.  While setting aside and quashing the impugned
order and allowing the Appeal, we direct as under;
(A) Notice of Motion No.1548 of 2011 is disposed of with a
direction that the parties shall, in terms of the Annexure III to
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the report of the Court Officer, use and occupy the bed rooms.
The bed rooms which are indicated therein can be used with
attached bathroom and with facility for the disabled.   They
can   be   used   by   the   respective   parties.     The   Respondent   is
allowed to use and occupy the bed room with attached  Toilet
containing  facility  for   a   disabled   or   physically  incapacitated
person.
(B) The ad­interim order passed on 15 th  July, 2011 is, thus,
directed to be continued till the hearing and final disposal of
the suit. The Respondent­Plaintiff can use and occupy two bed
rooms in the suit premises, the balcony and bathroom shown
in red hatch lines on the floor plan, tendered in Court, taken
on record and marked “X”.  The other bed room as marked on
the plan shall be used by the Appellants and with the attached

bathroom. In order to enable them to access the flat, the set of
keys to the main door be made and retained by both sides.
They can place their own locks on the bed room earmarked
for their use.  However, the common area can be accessed by
both.
(C) The Appeal is allowed accordingly.  No costs.
(D) We clarify that our order shall not be held to be binding

on the learned Single Judge trying the suit.  All observations
are   tentative   and   prima   facie.     The   Suit   be   decided
uninfluenced by the same.   Since parties are senior citizens,
the hearing of the Suit is expedited.
(S.C. DHARMADHIKARI, J.)
  (G. S. KULKARNI, J.)

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