This is not a case of landlord and tenant. The landlord is not involved in this litigation between the heirs of the deceased tenant. There is no question of any relationship of licensor and licensee or their such related rights. Both the parties are claiming rights over the tenanted flat being heirs of the deceased tenant. The plaintiffs long and settled possession is quite established as supported by documents on record. It is the case and relief against the Defendants no where refer or deal with any aspect of landlord and tenant or Licensor or Licensee relationship. This is a interse dispute between legal heirs of the deceased tenant. In absence of any proceedings or involvement of the landlord, in the present case, the Suit so filed cannot be treated as a Suit or proceedings for eviction or in relation to the Landlord and tenant relationship. The Plaintiff is claiming, being in settle possession of the flat, reliefs against the Defendants treating them trespassers. There are even Criminal Complaints filed. It is settled that all the legal heirs of the deceased, unless, accepted and/or treated by the landlord, cannot claim tenancy over the flat. Therefore, as there is dispute between the heirs of the tenant with regard to the possession or occupation rights in full or in part and in the present facts and circumstances, therefore, the Suit is maintainable in this Court.
11 Any proceedings, even if any, initiated by the Defendants for claiming tenancy rights over the suit property cannot decide the jurisdiction of this Court. The tagging of the Suit is not a issue. Both the parties have been making allegations and counter allegations of trespassing against each others and claiming rights accordingly over the flat. The Court will decide it after due trial. The Suit is not between the landlord and tenant/ licensor or licensee. The same is not initiated by the landlord. The landlord is not a party to this proceeding, initiated by the heirs of the deceased tenant to protect their respective rights and the possession. It nowhere related to the recovery of rent or possession of the tenanted premises.
12 This Suit is not barred by the provisions of the Maharashtra Rent Control Act, 1999.
IN THE HIGH COURT OF BOMBAY
Suit No. 1173 of 2011 With Notice of Motion No. 1548 of 2011
Decided On: 03.04.2012
Arun Bhaskar Adarkar Vs. Mina Srinivasan Krishnan
Hon'ble Judges/Coram:
Anoop V. Mohta, J.
Citation: 2012(3) ALLMR 879,2012(3) AIR BOM R 516
1. The learned counsel appearing for the Defendants has raised a preliminary objection of jurisdiction to entertain the present Suit and so also the Notice of Motion, therefore, by consent the following preliminary issue is framed:
Whether the Defendants prove that this Hon'ble Court does not have jurisdiction to entertain and try this Suit in view of Section 33 of the Maharashtra Rent Control Act, 1999.
2. Both the parties by consent lead no evidence for the issue.
3. The Plaintiff is a Senior Citizen aged 73 years and is physically handicapped. He is a person of Indian Origin inhabitant of Washington D.C., USA and also a resident of Flat No.5, Second Floor, Goolestan, 37 (East) Wing, Cuffe Parade, Mumbai ( "the Suit Flat"). Defendant No.1 is his younger married sister aged about 61 years. Defendant No.2 is the husband of Defendant No.1. He and Defendant No.1 resided in the Suit Flat with their parents late Bhaskar Namdeo Adarkar and late Mrs. Sarla Bhaskar Adarkar and brother Vivek Bhaskar Adarkar. On 22 May 1966, he married one Ms. Meenalaxmi Sanzgiri. He has a son and a daughter. Both the children are married and live independently with their respective families in the United States of America. In 1969, the Suit Flat was then owned by one Patel Volkart and leased to the Reserve Bank of India, where the his father was Deputy Governor. His father became a tenant of the Suit Flat and was paying monthly rent (now Rs.806.17 including all taxes) to Patel Volkart. In 1970, Defendant No.1 married Defendant No.2 and left the Suit Flat. Since the time of the Defendants marriage, Defendant No.1 has been residing with Defendant No.2 and not in the Suit Flat. Defendant No.1 visited the Suit Flat but never lived there since her marriage. The plaintiff was working with Asian Development Bank ("ADB") and a part of employment had various posting outside India. The Plaintiff held Diplomatic Passport issued by the Indian Embassy at Manila, when he was working with ADB. In January 1982, the Plaintiff joined the services of International Monetary Fund ("IMF"). The Plaintiff enjoys the status of the Person of Indian Origin and holds the P.I.O. Card issued by the Indian Embassy at Washington D.C. The widowed and childless cousin of the Plaintiff, Ms. Malini Gavaskar, came to reside at Suit Flat with the Plaintiff since 1982. In 1983, the ownership of the Suit Flat was transferred by Patel Volkart to Ruchi Properties now renamed as Isha Infratech Pvt. Ltd. alongwith the tenancy of the Plaintiff's father. Since 1990-91 till date the Defendants are residing in a duplex flat at 1301, Le Papilion, Mount Mary Road, Bandra (West), Mumbai.
4. The Plaintiff's wife Ms. Meenalaxmi Sanzgiri expired in Mumbai on 4 August 1993. In November 1996, the Plaintiff married Ms. Fiona Shrikhande.
5. The Plaintiff's father expired in Mumbai on 20 March 1998. As per his father's wish the tenancy of Suit Flat was transferred to his mother. The landlord, however, continued to issue the rent receipt in the name of his father. The Plaintiff's mother expired at Mumbai on 28 August 2001. She left behind a Will dated 24 February 1985 in respect of which Probate was obtained on 22 December 2005. At the time of her death, only the Plaintiff and his wife were staying with her in the Suit Flat. The Defendants were not residing in the Suit Flat. Since September 2001 till date the Plaintiff succeeded to the tenancy of the Suit Flat and has been in settled possession of the Suit Flat and has paid regularly rent to the landlord. Since 2008, his full time servant Shashikant Solkar has been looking after the Suit Flat and resides in the said flat with him. Even in the absence of him and his family members, the said Solkar stays in the Suit Flat. In 2009, his 92 years old cousin, Ms.Malini Gavaskar, was moved to Dignity Lifestyle Trust's Retirement Home in Neral. His brother Vivek Bhaskar Adarkar, bachelor, residing in the United States of America expired on 19 August 2009.
6. On 23 April 2011, the Defendants trespass into the Suit Flat and Defendant No.1 has now alleged certain rights in it. He reported the incident to the Cuffe Parade Police Station by telephone followed by fax. On 25 April 2011 he had to terminate his vacation and come to Mumbai with his wife as the Defendants had illegally and forcefully entered into and remained on the Suit Flat. The Defendants are illegally and unauthorizedly occupying the Plaintiff's bedroom in the Suit Flat. As a result whereof, the Plaintiff himself was using another bedroom and was finding it extremely difficult to use that and other bathrooms which are not convenient for the use of a handicapped person like him. The Plaintiff, therefore, initially stayed at Hotel President and thereafter at the Cricket Club of India. On 28 April 2011 after repeated requests, the Police finally recorded the Plaintiff's complaint of criminal trespass. On 29 April 2011 the police recorded the statement of the Plaintiff's neighbour, Mr. Y. H.Malegam and Mrs. R. Malegam.
7. As alleged, the Plaintiff is a tenant of and in lawful, juridical, as well physical settled possession of the Suit Flat. The Defendants are forcibly and illegally trespassing on Plaintiff's Suit Flat. The Defendants were never in settled or lawful possession of the Suit Flat. The Defendants do not have any right title or interest in the Suit Flat. The Plaintiff apprehends that the Defendants may attempt to defeat his rights. On 11 May 2011 since the police did not take any action on the Plaintiff's complaint, the above Suit is filed and urgent reliefs are being sought therein.
8. By an Court's order the Commissioner furnished a report about the flat. They have relied on various documents to establish his settled possession. As the matter between the family members, it was adjourned for settlement also. Both the parties have filed supporting affidavits, rejoinder and documents to their respective claim and counter claim.
9 The prayers are 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 "I" hereto) and interest thereon at the rate of 18% per annum from the date of filing of the Suit till payment or realisation thereof;
(b) that this Hon'ble Court be pleased 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 ad interim reliefs in terms of prayer clause (c) above;
10 This is not a case of landlord and tenant. The landlord is not involved in this litigation between the heirs of the deceased tenant. There is no question of any relationship of licensor and licensee or their such related rights. Both the parties are claiming rights over the tenanted flat being heirs of the deceased tenant. The plaintiffs long and settled possession is quite established as supported by documents on record. It is the case and relief against the Defendants no where refer or deal with any aspect of landlord and tenant or Licensor or Licensee relationship. This is a interse dispute between legal heirs of the deceased tenant. In absence of any proceedings or involvement of the landlord, in the present case, the Suit so filed cannot be treated as a Suit or proceedings for eviction or in relation to the Landlord and tenant relationship. The Plaintiff is claiming, being in settle possession of the flat, reliefs against the Defendants treating them trespassers. There are even Criminal Complaints filed. It is settled that all the legal heirs of the deceased, unless, accepted and/or treated by the landlord, cannot claim tenancy over the flat. Therefore, as there is dispute between the heirs of the tenant with regard to the possession or occupation rights in full or in part and in the present facts and circumstances, therefore, the Suit is maintainable in this Court.
11 Any proceedings, even if any, initiated by the Defendants for claiming tenancy rights over the suit property cannot decide the jurisdiction of this Court. The tagging of the Suit is not a issue. Both the parties have been making allegations and counter allegations of trespassing against each others and claiming rights accordingly over the flat. The Court will decide it after due trial. The Suit is not between the landlord and tenant/ licensor or licensee. The same is not initiated by the landlord. The landlord is not a party to this proceeding, initiated by the heirs of the deceased tenant to protect their respective rights and the possession. It nowhere related to the recovery of rent or possession of the tenanted premises.
12 This Suit is not barred by the provisions of the Maharashtra Rent Control Act, 1999.
13 The Suit, as filed in this Court, is maintainable. The issue is answered accordingly. Place the Notice of Motion before regular bench for hearing on merits. S.O. to 17 April 2012.
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