Bombay High Court
Sanjay Tukaram Katkar vs Neelima Sanjay Kadam And Ors on 12 June, 2023
Bench: P. K. Chavan
2023:BHC-AS:15467 17-FA-428-2023.doc
Shailaja
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO.428 OF 2023
Sanjay Tukaram Katkar ]
Age - 58 years, Occupation: Advocate ]
Residing at 134/Kinjle Villa, ]
Flat No.1102, Shri Parmar Guruji Marg, ]
Parel, Mumbai - 400 012. ] Appellant/
Orig. Defendant No.1
Vs.
1. Smt. Neelima Sanjay Kadam, ]
Aged about 57 years, Occupation: ]
Service, Residing at Mistry Nagar, ]
Building No.2, Flat No.22, Pandurang ]
Naik Road, Shivaji Park, Dadar, ]
Mumbai - 400 016. ] Respondent No.1/
(Original Plaintiff)
2. Arvind Jain ]
Age - not known, adult, Occupation: ]
Business, Conducting Business in the ]
name and style as Shagun Construction]
Prathamesh Building, Senapati Bapat ]
Marg, Dadar, Mumbai - 400 028. ] Respondent No.2/
(Orig. Defendant No.2)
3. Sunita Avinash Nagtilak ]
Aged - 52 years, Occupation : Service, ]
Residing at A7, New Prabha ]
Apartment, Behind Mahila Hospital, ]
Next to MTNL Colony, ]
Hotgi Road, Solapur - 413 001. ] Respondent No.3
(Orig. Defendant No.3)
.....
Mr. Santosh Vishwakarma, for Appellant.
Mr. H.R. Pawar, for Respondents.
.....
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CORAM : PRITHVIRAJ K. CHAVAN, J.
RESERVED ON : 6th JUNE, 2023.
PRONOUNCED ON : 12th JUNE, 2023.
ORDER:
1. Heard learned Counsel for the appellant and the respondents.
2. Appellant is the original defendant No.1 who is aggrieved
with the impugned judgment and decree passed by the City Civil
Court, Mumbai on 2nd January, 2023, thereby decreeing Short
Cause Suit No.2741 of 2013. The Court below had declared
Respondent No.1-plaintiff's 1/3 share in the suit premises as well as
in the new premises which was granted as permanent alternate
accommodation in lieu of the suit premises. The Court below also
directed the appellant to deliver possession of 1/3 share of the
respondent No.1 in the permanent alternate accommodation. The
appellant has been restrained from creating any third party interest
in 1/3 share of respondent No.1 in the new permanent alternate
accommodation.
3. Appellant and respondent No.1 are real brother and sister.
Respondent No.1 had sought relief of declaration and possession of
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her 1/3 share in the suit premises i.e Plot No.134, Kinjal Villa CHS
Ltd., Flat No.1102, 11th floor, Shri Parmar Guruji Marg, Parel,
Mumbai - 400 012 which has been allotted in lieu of old tenement
i.e Room No.5, Ground Floor, Sushma Sadan, Shri Parmar Guruji
Marg, Parel, Mumbai - 400 012. Admittedly, old premises stood in
the name of uncle of the appellant and the respondent No.1 namely
Bhagwan Krishnaji Katkar.
4. Learned Counsel for the appellant argued that the trial Court
failed to appreciate Appendix B of Notification of Maharashtra
Housing Department dated 16th August, 2010 as well as the
evidence adduced by the appellant as well as the respondent No.1.
5. On the other hand, learned Counsel for respondent No.1
supported the impugned judgment and decree which, according to
him, only to the extent of declaring 1/3 share of respondent No.1.
He invited my attention to the cross-examination of appellant-
D.W.1- Sanjay Katkar from which it is evident that respondent No.1
had her share in the suit property. It would be apposite to extract
paragraphs 25, 26 and 27 of the cross-examination of the appellant,
which read thus;
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"25. Bhagwan Krushnaji Katkar, my
uncle was the tenant of the old room i.e Room
No.5, Sushma Sadan, Parel, Mumbai - 12. Since
birth, I, plaintiff and Deft. no.3 were residing at
Room No.5, Sushma Sadan. My uncle had given
NOC to transfer the tenancy in the name of my
father and executed an affidavit to that effect in
the year 1992. Till the demolition of Sushma
Sadan building, the rent receipt of Room no.5
was standing in the name of my uncle only. The
electric bill of Room No.5 was transferred in the
name of my father till the demolition of Sushma
Sadan building.
26. Sushma Sadan building was
demolished in the year 2010 for the purpose of
re-development. Now I am shown para 18 of my
affidavit (Exh.23). I have no rent receipt to
show that after the death of my mother, I
became sole occupant and tenant of Room no.5.
It is correct to say that it is false to say that after
the death of mother, I became sole occupant and
tenant of Room no.5 as mentioned in para
no.18 of my affidavit.
27. Now, I am shown para 16 of my
affidavit (Exh.23). My mother has not given in
writing to MHADA and Deft. no.2 to accept me
as a occupant and tenant of Room no.5. The
officials of MHADA had prepared certified list
of tenants and occupants of Sushma Sadan
building, who are eligible for permanent
alternate accommodation in the new building.
MHADA has certified the names of my mother
Malati and myself as certified occupants in
respect of Room No.5. I was having personal
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knowledge that my and my mother's name was
jointly certified as a tenant and occupant of
room no.5. I never raised any objections with
the MHADA to said certification".
6. In paragraph 29, the appellant admits that respondent No.1
never relinquished her right in respect of Room No.5 as well as new
premises. In paragraph 30, he also admits that "Exhibit 19" which
is an affidavit-cum-undertaking was executed by him in favour of
respondent No.1.
7. As such, there is no substance in the argument of the learned
Counsel for the appellant in view of the correct and legal findings
arrived at by the trial Court, especially, in view of the admissions
given in the cross-examination by the appellant. I, therefore, find
no substance in the appeal. Hence, the appeal stands dismissed.
8. In view of dismissal of appeal, pending applications, if any,
stand disposed of.
[PRITHVIRAJ K. CHAVAN, J.]
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