Madhukar Tukaram Shinde vs Shrikrishna Dattaram Shirke
2012 Latest Caselaw 22 Bom

                                                                  1                   Suit No.3508_1993

 jsn                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY                                           
                                ORDINARY ORIGINAL CIVIL JURISDICTION




                                                                                                            
                                               SUIT NO.3508 OF 1993




                                                                                 
                Madhukar Tukaram Shinde                                         --       Plaintiff
                          V/s.




                                                                                
                Shrikrishna Dattaram Shirke                                      --      Defendant
                                                               
                Mr. Subodh Joshi for Plaintiff.
                Mr. P.N. Patwardhan for Defendant




                                                                          
                                                          CORAM :   MRS. ROSHAN DALVI, J.

                Date of reserving the Judgment
                                                 ig                   :    23rd July, 2012
                Date of pronouncing the Judgment :                         28th September, 2012
                                               
                                    
                JUDGMENT

1. The Plaintiff has sued for vacant possession of Flat No.6-

B, Ground Floor, Vaishali CHS Ltd., Ali Yavar Jung Rd., near Teachers

Colony, Bandra, Mumbai 400 051 upon being forcibly dispossessed by the defendant. Upon amendment of the Plaint the Plaintiff has further sued for declaration that he is alone entitled to the suit premises, its

use and occupation. It is the Plaintiff's case that he purchased the suit premises from the builder. He paid the consideration amount of Rs.97,500/- towards the purchase price. The last installment of

Rs.6,900/- was paid by him to the builder at the time of possession. Possession was given by the builder even though the occupation certificate of the building was not obtained. The Plaintiff has complained that several works of construction were not carried out in the suit flat. Wash basin and geyser were not fitted. The work of WC and lavatory block was not completed. Electric connection was not

provided. Even the wall on the eastern side of the suit flat of the Plaintiff which was adjoining the Society's premises was not

constructed. In such state of affairs the builder asked the Plaintiff to

take possession. The Plaintiff took possession and put a lock on the main door. The Plaintiff got certain work of construction carried out himself. He claims to have made certain payments under certain bills

which he relied upon.

2. The society came to be registered. The Plaintiff became its member. The Plaintiff was issued the share certificate dated 28 th

March, 1992. The Plaintiff was accordingly in possession of the suit premises.

3.

The Plaintiff has a ration card. He obtained fire policy.

He paid the society's arrears and monthly charges. He applied for gas connection.

4. It is the Plaintiff's case that the defendant is the son of the

sister of one V.K. Vichare who was the President of the society till

1990. The defendant had not purchased any flat in the society. No block was provided to the defendant. However, the society allowed the defendant to use the society's office premises. The defendant lived

in the society premises since 1990 to January, 1993. Those were the premises adjacent to the suit premises.

5. It is the Plaintiff's case that since the construction work

was not completed in the suit premises, he could not live in the premises continuously and he visited it from time to time. During this period the defendant resided in the office premises. It is the Plaintiff's case that the defendant was using some portion of the Plaintiff's flat being the bathroom and W.C. in the absence of the Plaintiff. The Plaintiff has alleged that the builder as well as society's interested

office bearers deliberately did not construct the middle wall between the suit premises and the society's office despite the Plaintiff's

repeated requests. The Plaintiff has stated that some of the members

of the Society also questioned the illegal occupation of defendant in the office premises of the society.

6. The Plaintiff has complained to the society, builders, the

MMC as also to the Architect. The Plaintiff relied upon several letters addressed to these persons.

7. It is the Plaintiff's case that on 2 nd February, 1993 at about

4.30 p.m. the Plaintiff visited the suit premises and was surprised to

see a lock on the main door of the suit premises. The Plaintiff apprehended that the lock was put by the society. The Plaintiff went

to the secretary and demanded the key by his letter dated 2 nd February, 1993. The secretary informed the Plaintiff that the defendant had removed the Plaintiff's lock and put different lock on

the main door of the suit premises. It is this act that the Plaintiff's

contends is his forcible dispossession. The Plaintiff has averred that the defendant committed the illegal act by putting a lock on the premises belonging to the Plaintiff and which was in the Plaintiff's

possession and thus the defendant wrongfully dispossessed the Plaintiff from the suit premises.

8. Thereafter the defendant obtained an order of injunction

restraining the Plaintiff from disturbing his possession.

9. There is a dichotomy in the number of the plaintiff's flat. However, that does not matter. The Plaintiff's block is identifiable by the fact that it was adjacent to the Society's office, it having a common wall with the Society's office. Besides the defendant has not produced any document of title showing purchase of any flat in Vaishali CHS

Ltd. By him. Under these circumstances the Plaintiff has sought to be put back in possession of the suit premises.

10. It is the case of the defendant that he has resided in flat

No.B-1 in Vaishali Co-Operative Society Ltd. (the society) since July, 1990 and the Plaintiff was never in possession or exclusive possession of the said flat. He has claimed that he purchased the said flat under

agreement dated 23rd October, 1985. He was issued share certificate No.14 in respect of that flat by the society. He claims that he pays maintenance charges and municipal taxes. He claims to have the

electric meter bearing No.1647401. He claimed that flat No.6B is the

same as flat No. B-1 and hence the Plaintiff claims the defendant's flat No. B-1. The defendant has admitted that the Plaintiff lodged

complaint against him upon the dispute between the parties. The defendant has denied that the Plaintiff put any lock on the door in the vicinity of the flat occupied by the defendant or that he took

possession of the flat occupied by him. He has denied removing the

Plaintiff's lock or having committed any illegal act by putting up his lock on the premises occupied by him. The defendant has, however, accepted that the agreement dated 23rd October, 1985 relied upon by

him does not show any block number or area of the premises given to the defendant.

11. Based upon the respective contentions of the parties

Justice Ganoo has recast the following issues which are answered as follows :

I S S U E S 1 Whether the Plaintiff proves that he was in Yes possession of the suit flat on or before 2 nd February, 1993?

      2 Whether   the   plaintiff   proves   that   he   was                  Yes
                                                       nd

dispossessed from the suit flat on 2 February, 1993

by the defendant?

3 Does the defendant proves that suit is barred by No period of limitation?

4 Is the Plaintiff entitled to recover possession from Yes the defendant in accordance with the provisions of Section 6 of the Specific Reliefs Act?

      5 What order?                                                       As per final 




                                                                       
                                                                          order.

12. The Plaintiff sued under section 6 of the Specific Relief Act for recovery of his possession forcibly and wrongfully taken from

him on 2nd February, 1993. The suit has been filed within 6 months of the dispossession on 29th July, 1993. By an amendment of the plaint

the Plaintiff has paid additional court fee and sought declaration of his title and consequently claims recovery of possession on title also

under section 5 of the Specific Relief Act. The Plaintiff has examined himself and one other witness and produced documents of title. The

issues in the suit would have to be answered essentially upon the documentary evidence with regard to the suit flat.

ISSUE NO.1

13. The Plaintiff purchased the suit flat under the registered agreement of sale dated 9 th November, 1985 registered on 3 rd January, 1986. The suit flat is flat No.6 in wing B of the society. It is therefore, flat No.6B. The Plaintiff has sought entitlement as well as

possession for flat No.6B. There are five shops on the ground floor of the suit building. The suit flat is on the ground floor. It is an admitted position that it is next to the society's office. It is also admitted position that it is in wing B. It is, therefore, stated to be said flat No.6B. However, the number of the flat, which could have been changed by the society at any time, is not material. The suit premises

is identified essentially by its specific location being next to the society premises and adjacent wall of society premises. The Plaintiff claims

that the suit flat was purchased by him by taking a loan from Canara

Bank. He has paid EMIs. The builder is stated to have handed over possession of the suit flat to the Plaintiff on 18 th December, 1990 when the occupation certificate was not obtained and the construction was

left incomplete. The Plaintiff claims to have put up certain amenities such as wash basin, geyser, work in the W.C. and electric connection. The wall between the Plaintiff's flat and the society's premises is stated

to have had a gaping hole. That was major work of construction. The

Plaintiff had to get that work done through the builder. The evidence of the Plaintiff shows that he could not continuously reside in the suit

premises though the builder gave him possession because of the aforesaid work of construction which was not completed. The Plaintiff used to visit every week specially on weekends.

14. The Plaintiff has relied upon and produced his ration card

obtained on 27th January, 1991. The Plaintiff has paid maintenance charges. The society has issued receipts to the Plaintiff. The Plaintiff has applied for and obtained gas connection on 20 th June, 1991. The

society has also issued the share certificate of flat No.6B in the name of the Plaintiff. The Plaintiff insured the flat and renewed the insurance. The Plaintiff has produced the aforesaid documents which

are marked exhibits. The Plaintiff's advocate has complained to the builder, the society and the Architect for the work left incomplete and called upon them to complete the construction. The Plaintiff has produced copy letter dated 21st July, 1992.

15. It is the Plaintiff's case that the defendant was the nephew of the secretary of the society at that time. He has not

purchased any premises. He had no flat in the society's building. He was allowed to stay in the society's office premises. From the office he

used to have access to the Plaintiff's flat for using the WC and

bathroom in the absence of the Plaintiff. The Plaintiff knew about this fact, but had not raised objection. It is the Plaintiff's case that whilst the construction remained incomplete, the defendant not only entered

upon the Plaintiff's flat from the society's office premises but removed the Plaintiff's lock and put his lock on 2nd February, 1993. The Plaintiff had, as usual visited the suit premises and saw the lock. He

immediately realised that it was the defendant's lock. In view of the

defendant's relationship with the Secretary and in view of the Secretary's permission allowing the defendant to use the office

premises. Hence he enquired with the Secretary and he was informed about the fact which he expected. He lodged the complaint with the police and as well as various Ministers and thereafter filed the suit.

16. The defendant has not disputed the agreement entered into

by and between Plaintiff or his other documents showing possession. The Defendant contends that the Plaintiff's flat is different from the flat purchased, possessed and occupied by the defendant. The

defendant has not led any evidence. He has not proved his documents of title. He has not shown by documentary evidence his occupation in the suit premises from 1990 as claimed by him. The

defendant has also not been able to show the specific flat purchased by him. It is the Plaintiff's case that his flat has been renumbered as flat No.1-B by creating false record by the Secretary and Chairman of the society who was the defendant's maternal uncle. He sought to show that the defendant was owner of flat No.1A and the Plaintiff was owner of flat No.1B. Even if flat No.6B, for which the share certificate

was also issued by the society to the Plaintiff is not Plaintiff's flat, It is not denied by the defendant that the Plaintiff had no flat in suit

building or that his flat was not adjacent to society premises.

Whatever be the number of the flat, the Plaintiff would be entitled to the possession in respect of the flat adjacent to the society premises. If the defendant does not claim that fact the Plaintiff must obtain the

decree in respect of such flat. If the defendant disputes the flat of any number of the Plaintiff the defendant must show which flat belongs to the Plaintiff and put the Plaintiff in possession thereof. That must be

the flat adjoining the society's office. The evidence led by the Plaintiff,

coupled with the fact that the defendant has not led any evidence or produced any documents of his title or possession as claimed by him

therefore, proves the plaintiff's possession in the suit flat adjacent to the society premises.

17. The Plaintiff has also examined the Secretary of the society

and produced the documents addressed to the society including the

certified copy of the agreement dated 9 th November, 1985 which corroborates the Plaintiff's title. The Secretary has not been cross examined.

18. The defendant has not shown how he got into possession since July, 1990 as claimed by him. In fact, he Plaintiff has relied upon further documents inter alia including the original Index II in

respect of the premises of the society which does not show any flat number of the flat claimed by the defendant and shows nil against it. That public document has been produced by the secretary of the society from proper custody being its own records. The totality of his evidence shows the Plaintiff's title as also his possession. Consequently issue No.1 is answered in the affirmative.

ISSUE NO.2

19. The case of the dispossession on 2nd February, 1993 is

initially made in paragraph Nos.8 and 10 of the plaint. The Plaintiff

has explained the dispossession since there was a hole between the society's office and the Plaintiff's flat. Since the defendant was allowed to stay in the society's office, the Defendant would have

access to the Plaintiff's flat. This situation has not been denied. It has not been disproved in the plaintiff's cross examination also. This is a case rife for dispossession because of the easy entry to the suit

premises from the society's office. The Plaintiff's case shows that

Plaintiff had not taken exception to the defendant using his toilet and bathroom in the absence. This is in consonance with neighbourly

relations. However, the flat remained under the lock of the Plaintiff when the Plaintiff was not actually residing therein but only intermittently visiting his flat because the work of construction was

incomplete. It is only on 2 nd February, 1993 when the Plaintiff visited

the suit premises that he realised that someone had put another lock on the door of his flat. He realised who the culprit was. He contacted the secretary. The secretary was admittedly the defendant's maternal

uncle. The Plaintiff demanded the key from the Secretary. The Secretary informed the Plaintiff that the defendant had removed the Plaintiff's lock and put his lock. The defendant claims that it is his

own premises. He had not disputed his lock on the said door. Hence once the Plaintiff has shown his entitlement to the premises and the defendant claims that it is the defendant's premises, the case of the Plaintiff that the Plaintiff's lock was removed and the defendant's lock was put on the same place, stands to reason and must be accepted. That is the overt act by which the defendant got into possession. That

is to the flat adjacent to the society's office by whatever number given. The agreement and the share certificate show that that is flat No.6B,

even if later it is shown to be flat No.1B. That is the flat belonging to

the plaintiff in which the Plaintiff claims to be put back in possession.

20. Paragraph 4 of the affidavit of examination in chief read with paragraph 9 of the evidence show the Plaintiff's claim with

regard to flat No.6B/1B. Hence it is seen that from 18 th December, 1990 when the Plaintiff took possession from the builder despite the occupation certificate not being given and despite the entire

construction not being put up as deposed in paragraph 12 of his

evidence, his possession continued until admittedly the defendant's lock came upon the suit premises. The handing over of the possession

by the builder under the letter of possession dated 18 th December, 1990 and the receipt of possession must confirm the Plaintiff's possession.

21. The evidence of the Plaintiff shows the amounts paid from

time to time to the builder and the receipts obtained and the agreement executed for flat No.6B. It also shows how the society changed the flat numbers thereafter. The production of the documents

showing consideration paid and the agreement obtained from the builder and thereafter the documents of possession being the ration card, gas connection, maintenance receipt, share certificate as also

insurance shows the Plaintiff's title as well as possession.

22. The cross examination of the Plaintiff is essentially on wholly extraneous aspects. The Plaintiff has confirmed in the cross examination that he got possession on 21 st June, 1990 when the construction was not completed. The Plaintiff has enumerated the aforesaid work which was not completed in the cross examination

also. The cross examination has not succeeded in showing that the Plaintiff's documents of title, payments made or the possession

claimed are illegal or erroneous. The Plaintiff has refuted the case that

the agreement executed by him was not in respect of the suit premises or with the premises was incorrectly shown in red in the sketch plan annexed to the agreement or also that there was no society's office on

the ground floor of the suit building. Pertinently the specific case of possession of the Plaintiff has not been disputed and the Plaintiff was not cross examined thereon.

23. The cross examination with regard to the dispossession

claimed by the plaintiff also reiterates and infact clarifies that the Plaintiff made enquiries as to whose lock was on the suit premises and

learnt that the lock was of the defendant. The Plaintiff has explained that he used to visit the suit premises on holidays at least once in a month between 18th December, 1990 to till 2nd February, 1993 and he

was aware that the construction of the wall was incomplete when he

was dispossessed.

24. Some cross examination of the plaintiff was on the number given to the flats. However, the plaintiff has held his ground that his

flat was flat No.6B in wing B though he naturally had no documents to show how it was changed to 1B.

25. From the aforesaid evidence the Plaintiff dispossession on

2nd February, 1993 is seen. Hence issue No.2 answered in the affirmative.

ISSUE NO.3.

26. The suit has been filed just within the period of limitation being within 6 months from the date of dispossession. The date of

suit instituted is 2nd February, 1993. The suit has been filed on 29 th July, 1993. In any event the suit is also on title. Hence the Issue No.3

is answered in the negative.

ISSUE NOS.4 & 5.

27. The Plaintiff is, therefore, entitled to recover possession of

the suit flat No.6B purchased by the Plaintiff under the agreement dated 9th November, 1985.

O R D E R

1. The suit is made absolute in terms of prayers (a) and (a1).

2. The Defendant shall handover vacant possession of the suit flat to the Plaintiff forthwith. The defendant shall pay costs of this

litigation to the Plaintiff fixed at Rs.25,000/-.

3. The Plaintiff shall be returned all the original documents produced by the Plaintiff.

4. Drawn up decree is dispensed with.

( ROSHAN DALVI, J.)