Bombay High Court
Vithoba Krishna Baad vs Rangnath Krishna Baad And Ors on 12 January, 2024
Author: Anuja Prabhudessai
Bench: Anuja Prabhudessai
2024:BHC-AS:2311
FA 1071-92.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO. 1071 OF 1992
Vithoba Krishna Baad
since deceased through heirs
1(a) Smt. Samabai Vithoba Baad,
Age 68 yrs, Occ : Household
1(b) Sou. Usha Arun Khandekar
Age 43, Occ: Household
1(c) Shri Shailendra Vithoba Baad
Age 38 years, Occ: Service
All res. At Sion Koliwada,
Pratiksha Nagar, Bldg. No.T/41
Room No.209, Shiv Garjana,
Sion, Mumbai 400 022 ..Appellant
(Original Defendant No.3)
v/s.
1. Rangnath Krishna Baad
2. The Bombay Housing & Area
Development Board.
3. The State of Maharashtra . ..Respondents
(Respondent No.1 org. Plaintiff
Resp. Nos.2 and 3 Org. Def. Nos.2 and 1)
Mr. Rajesh Parab for the Appellant.
Mr. Hamid Kadiani a/w. Ms. Kavisha Shah, Mr. Hrutvik Patil Mr. Nikhat
Chaudhary, Adv. Hamza Lakhani, Adv. Minal Pawar i/b. India Law
Alliance for the Respondent No.1.
Ms. Tanaya Goswami, AGP for the State.
CORAM : ANUJA PRABHUDESSAI,J.
DATED : 12th JANUARY, 2024.
JUDGMENT
1. By this appeal under Section 96 of the Civil Procedure Code, the
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appellant has raised challenge to the judgment dated 14.01.1992 in
L.C.Suit No.2500 of 1986. By the impugned judgment and decree, the
learned Judge, City Civil Court, Bombay decreed the suit filed by
respondent No.1-plaintiff and directed respondent no.2 to hand over
possession of the room no.302, 3rd floor, Siddharth Building, to the
plaintiff by way of permanent alternative accommodation in lieu of room
no.3 in Parmanandwadi Chawl, Parel, Bombay.
2. Respondent no.1 was the plaintiff and the appellant herein was
defendant no.3 in the suit and shall be hereinafter referred to as the
plaintiff and defendant no.3 respectively. Appellant nos.1(a), 1(b) and
1(c) are the legal representatives of defendant no.3, who died during the
pendency of the appeal. Respondent no.3-State was defendant no.1 and
respondent no.2-Bombay Housing and Area Development Board was the
original defendant no.2 and shall be hereinafter referred to as defendant
no.1-State and defendant no.2-Board respectively.
3. The dispute is in respect of room no.3 in Parmanandwadi Chawl
No.12, situated at G.D.Ambekar Marg, Parel, Mumbai. The said room
shall be hereinafter referred to as the suit room.
4. The Parmanandwadi Chawl was acquired by defendant no.1-State
for redevelopment. All the occupants/tenants were called upon to vacate
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the premises. They were allotted alternative temporary accommodation
pending re-construction of the building. The notice under Section 22(1)
(b) in respect of the suit room was served on defendant no.3, the elder
brother of the plaintiff, and he was later allotted alternative temporary
accommodation. Aggrieved by the allotment of the temporary alternative
accommodation and apprehending allotment of the permanent alternative
accommodation in favour of defendant no.3, the plaintiff filed a suit for
declaration that he is entitled to the permanent alternative accommodation
in the reconstructed building in lieu of the suit room.
5. The case of the plaintiff in brief is that, the suit room was initially
in possession of Ganu Rama, as a tenant thereof. Sometime in the year
1947-48, Krishna Baad, the father of the plaintiff and defendant no.3
acquired possession of the suit room from Ganu Rama and started
occupying the said room along with his wife and sons, i.e. the plaintiff
and defendant no.3. Krishna Baad retired in the year 1969 and he along
with his wife settled down in his native place after his retirement. The
plaintiff claims that since then he was in exclusive possession of the suit
room. It is the case of the plaintiff that defendant no.3 had acquired
room no.16 in the same chawl and he was residing in the said room along
with his family.
6. The plaintiff claims that he was on duty when defendant no.2-
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Board took inventory of the occupiers of the chawl. The defendant who
was present at the time of the inventory accepted the notice under Section
22(1)(b), which was issued in the name of the plaintiff, and obtained
temporary accommodation by misrepresenting the staff of defendant no.2
Board that he was in occupation of the suit premises.
7. The plaintiff had initially filed Civil Suit No.3046 of 1077 in the
Court of Small Causes, Mumbai, seeking to restrain the defendants from
dispossessing him from the suit room and further from granting any
temporary accommodation to defendant no.3 in lieu of the suit room. The
defendants raised the issue of jurisdiction, leading to the plaintiff
withdrawing the previous suit with liberty to file a fresh suit and
accordingly filed the fresh suit before the City Civil Court at Bombay
seeking declaratory relief as stated above.
8. Defendant No.2-Board claimed that the suit was not maintainable
for want of statutory notice. Defendant no.2 further claimed that
Parmanandwadi Chawl was owned by Parmanand Karsandas and the list
of the tenants supplied by him did not include the name of the plaintiff.
Defendant no.2 claimed that the notice under Section 22(1)(b) was not
issued in the name of the plaintiff since he was neither a tenant nor in
possession of the suit room. Defendant no.2 claimed that the notice in
respect of room no.16, which was to be issued in the name of
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Chandrakant Parab, was erroneously issued in the name of defendant
no.3. The said error was later rectified and the notice in respect of room
no.16 was issued in the name of Chandrakant Parab.
9. Defendant no.3 claimed that he had been residing in the suit room
as a tenant since about 38 years prior to filing of the suit, and that he had
vacated the suit room only on receipt of the notice under Section 22(1)
(b). He has averred that the plaintiff illegally and unauthorizedly
occupied the suit room after he had vacated the suit room and shifted to
the temporary alternative accommodation in the transit camp. Defendant
no.3 denied that the plaintiff was in possession of the suit room and
claimed that the plaintiff used to come to the suit room only to have
meals and hence his name was entered in the ration card. The plaintiff
subsequently started consuming alcohol and started harassing his family
members as well as the neighbors, which led to lodging of a police
complaint against him. The plaintiff was arrested and after his release,
he went back to his native place. On his return to Mumbai, he got
himself a different premises elsewhere. Hence his name was deleted
from the ration card. The defendant claimed that he has been paying the
rent as well as all other charges in respect of the suit room. The
defendants raised a plea of limitation and asserted that the plaintiff has no
right to the suit room.
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10. Based on the aforesaid pleadings, the trial court framed total 11
issues. Upon considering the evidence on record, the trial court rejected
the plea that the suit was not maintainable for want of statutory notice and
that the suit is barred by the law of limitation. On merits, the learned
Judge held that the plaintiff had proved that he and his family members
were in exclusive, continuous and uninterrupted possession of the suit
room since 1970 till 20.01.1988 and that the defendant with his family
was living separately in Room No.16. The learned Judge further held that
since the plaintiff was in exclusive possession of the suit room as on the
date of the acquisition of the building, he was entitled to the temporary
alternative accommodation as well as the permanent alternative
accommodation in the reconstructed building in lieu of the suit room.
Based on these findings, the learned Judge decreed the suit in terms of
prayer clause (a) and thereby directed defendant No.2-Board to allot
Room No.302 on the third floor of Siddharth Building to the the plaintiff.
Being aggrieved by this order, the defendant has filed this appeal.
11. The learned Counsel for defendant no.3 submits that the suit for
declaration is not maintainable in the absence of challenge to the notice
under Section 22(1)(b) as well as for want of prayer seeking direction to
defendant No.2 to allot permanent alternative accommodation. The
learned Counsel for the defendant has raised the issue of limitation on
the premise that the cause of action had accrued on the date of issuance of
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notice to vacate the suit room. The learned Counsel for defendant no.3
contends that though the relief is couched as a declaratory relief, the
challenge in essence is to the order passed by defendant No.2 and hence
in terms of Article 100 of the Limitation Act, the period of limitation to
alter or set aside any decision or order of the Court is one year from the
date of the order.
12. The learned Counsel for defendant no.3 submits that the evidence
indicates that the plaintiff and the defendant no.3 were in joint possession
of the suit room till the year 1969. The plaintiff had failed to establish
that he was in exclusive possession of the suit room from 1972 to 1976.
The plaintiff has also failed to plead and prove the circumstances under
which defendant no.3 left the suit room. He submits that the trial court
could not have taken into consideration possession of the plaintiff post
notice dated 13.04.1976 under Section 22(1)(b). He submits that the trial
court has failed to appreciate the evidence adduced by defendant no.3,
which amply proves the circumstances under which the plaintiff left the
suit room. He submits that defendant no.3 has been put in possession of
the permanent alternative accommodation and that the plaintiff is not
entitled for any declaratory relief.
13. The learned Counsel for the plaintiff submits that the names of the
plaintiff, his son and son-in-law were recorded in the ration card in
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respect of the suit room. Though the name of the plaintiff was deleted in
the year 1973, the other two names continued to remain on the ration card
till 1975. Furthermore, the evidence adduced by the plaintiff proves that
his wife was residing in the suit room at the time of the birth of his two
daughters in the years 1970 and 1973. The learned Counsel submits that
documentary as well as the oral evidence adduced by the plaintiff amply
proves that plaintiff was in possession of the suit room. He submits that
the case set up by defendant no.3 is inconsistent. Though defendant no.3
had claimed that the plaintiff was not residing in the suit premises, he has
admitted either expressly or inadvertently that he was residing in the suit
room till the year 1973. He further submits that the defendant has failed
to prove that the plaintiff was forced to leave the suit room in the year
1973 because of his misbehaviour. The learned Counsel for the plaintiff
submits that the letter dated 25.08.1976 addressed by defendant no.3 to
the Deputy Chief of defendant No.2 -Board proves that he was in
possession of room No.16. The learned Counsel for the plaintiff therefore
contends that the judgment and decree is based on the evidence on record
and does not warrant any interference.
14. I have perused the records and considered the submissions
advanced by the learned Counsel for the respective parties. The
plaintiff claims that he was in exclusive possession of the suit room since
1970 and has sought a declaratory relief that he is entitled for permanent
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alternative accommodation in lieu of the suit room. In the
circumstances, the questions for consideration are (i) whether the suit is
barred by law of limitation, and (ii) whether the plaintiff had proved that
he was in exclusive possession of the suit room since the year 1970.
15. Defendant no.3 has raised a plea of limitation on the ground that
the plaintiff had challenged 'the order', which would attract Article 100
of the Limitation Act. It is suffice to say that under Section 22(1)(b) of
the old Act, i.e. The Bombay Building Repairs and Reconstruction Board
Act, 1969, the Board had the power to cause any building proposed to be
structurally repaired, or reconstructed, or demolished to be vacated, if so
considered necessary, within a specified period. The notice dated
13.04.1976 (Exh. 4), issued under Section 22 (1)(b) of the 1969 Act,
cannot be construed as an order. Moreover, any relief relating to the
vacation notice under Section 22(1)(b) is only an ancillary or
consequential relief. The substantial relief sought by the plaintiff is a
declaratory relief, the limitation for which is three years. The suit having
been filed within the period of three years, the findings recorded on the
issue of limitation do not warrant any interference.
16. Now coming to the next question, the plaintiff as well as defendant
no.3 are claiming right to alternative premises on the ground that they
were in exclusive possession of the suit room. It is therefore essential to
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refer to the evidence adduced by each of them. PW.1-Rangnath Baad,
has deposed that his father had taken the suit room on rent from Ganuram
in the year 1947, and since then, he was residing in the suit room along
with his family. PW1 has deposed that he had studied in the Municipal
School at Ambekar Road and produced School Leaving Certificate at
Exhibit B. He has further deposed that he was employed as a driver in
the BEST Undertaking and his residential address in the service record is
Room no.3, Chawl No.12. He has produced the driving license at
Exhibit E, as well as an official gazette (Exhibit G) correcting his name in
the driving license.
17. PW1 has deposed that his father retired in the year 1969, and
thereafter his parents settled in their native place. In the same year, his
brother, i.e. defendant no.3, acquired room no.16 in chawl no.12 and
started residing in the said room along with his family. PW1 claims that
he continued to occupy the suit room and that he and his family were in
exclusive possession of the suit room till the date he vacated the suit
room in view of notice dated 13.4.1976. He has produced electricity
bills for the year 1974-75 (Exhibit C Colly.) and the rent receipts from
1963 to 1975 (Exhibit I Colly.) He has also produced the electoral roll of
the year 1983 and letters received by him at the address of the suit room
(Exhibit J Colly).
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18. PW1 has deposed that initially the ration card was in the name of
his father and that his name, as well as the name of his mother and
brother, i.e. defendant no.3, were also recorded in the ration card. He
claims that after the issuance of the notification, defendant no.3 told him
to have a separate ration card and hence in the year 1976, he obtained a
separate ration card in his name. He has produced the said ration card
(Exhibit D). He has deposed that he occupied the suit room continuously
from the year 1947 till 21.4.1988, when he shifted to the temporary
accommodation allotted to him by defendant no.2-Board pursuant to the
order of the Court.
19. PW1 claims that on 13.4.1976 when the officials of defendant no.2
had visited the suit room to serve notice under Section 22(1)(b), he was at
his workplace, and taking undue advantage of the situation, defendant
no.3 accepted the said notice and claimed right to the alternative transit
accommodation in respect of said room. PW1 has deposed that room
no.16 was in the name of defendant no.3 and that the notice in respect of
the said room was also issued in his name and he was offered the
temporary accommodation in the transit camp in lieu of the said room.
PW1 claims that defendant no.3 sold the said room to Sadashiv Parab and
occupied transit accommodation in lieu of the suit room. PW1 has
deposed that the old chawl has been reconstructed and that he is entitled
to a permanent accommodation in the reconstructed building in lieu of the
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suit room.
20. PW2-Pandit Joshi, Assistant Personal Officer, in BEST
Undertaking, has confirmed that the plaintiff was employed as a driver in
BEST Undertaking. He has confirmed the contents of certificate dated
26.4.1977 (Exhibit K), certifying that as per the address furnished in the
service record, the plaintiff was residing in room no.3, i.e. the suit room.
21. PW3 Dinanath Ubhalkar, is the Secretary of Parmanandwadi Kruti
Samiti formed in June or July 1977. He has deposed that the Kruti Samiti
has collected contribution/subscription from the occupants of the chawl.
He claims that the plaintiff has paid contribution to the Kruti Samiti as
per receipts (Exhibit L colly.) PW3 is also a resident of Parmanandwadi.
He has deposed that he knows the plaintiff since his childhood, and
claims that the plaintiff has been residing in the suit room since his
childhood.
22. The evidence adduced by defendant No.3, DW1-Vithoba Baad
indicates that he and the plaintiff were residing in the suit room along
with their parents till the year 1969. After the retirement of his father, his
parents settled in their native place. DW1 has deposed that the plaintiff
had accompanied his parents to their native place whereas he continued
to reside in the suit room with his family. The plaintiff returned to
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Mumbai about a month and half later and requested him to allow him to
reside in the suit room. Accordingly, he allowed the plaintiff to stay
with him and to have meals. He claims that in the year 1973, the
plaintiff assaulted his wife. A complaint was lodged against the plaintiff,
pursuant to which he came to be arrested. On the next day, after his
release from the police custody, the plaintiff returned to the suit room, but
he did not allow him to stay in the room. The plaintiff thereafter
collected his belongings and left the suit room. He states that the
plaintiff never resided in the suit room after the incident of the year 1973.
23. DW1 has deposed that he was working in Neehanite Foundary at
Wadala since about 31 years prior to the suit and the address in the
service record and bank account with Abhudaya Co-operative Bank, is
that of the suit room. He has also produced letters and other
correspondence received by him at the address of the suit premises
(Exhibit 5 Colly.) He has further stated that he has paid a monthly
contribution to Parmanandwadi Nagrik Committee, and has produced
receipts (Exhibit 6 colly.) He has produced the electrol roll as well as the
ration card to prove that he was residing in the suit room.
24. DW1 had deposed that he received notice dated 13.4.1976 (Exh.4)
issued by defendant no.2-Board to vacate the premises. He vacated the
premises in the year 1977 and shifted to the transit accommodation
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allotted by defendant no.2-Board. He has stated that he had paid rent as
well as deposit of Rs.100/- to defendant no.2-Board in respect of the
transit accommodation. He has produced the rent receipts and deposit
receipt (Exhibit 2A Colly. and Exhibit 3) of the rent paid to defendant
no.2 in respect of the said premises.
25. DW1 states that the notice in respect of room no16 was issued in
his name though the said room was occupied by Chandrakant Parab. He
has deposed that said Chandrakant Parab made an application to
defendant no.2-Board to issue the notice in his name and accordingly the
Board rectified the mistake and allotted the temporary transit
accommodation to Chandrakant Parab in lieu of room no.16. He has
deposed that Chandrakant Parab has since expired and that his wife has
been allotted the permanent alternative accommodation in lieu of room
no.16.
26. The evidence of PW1 and DW3 proves that the suit room was earlier
in possession of Ganuram as a tenant thereof. Though the rent in respect
of the suit premises was paid in the name of Ganu Rama, it is on record
that Krishna Baad, the father of the plaintiff and defendant No.3 had
secured possession of the suit room in the year 1947 and he stayed in the
suit room along with his wife and two sons viz. The plaintiff and
defendant no.3 till the date of his retirement in the year 1969. Said
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Krishna Baad and his wife, i.e. the parents of the plaintiff and defendant
no.3 settled in their native place. The fact that the plaintiff and defendant
no.3 lived in the suit room along with their parents till 1969 is not in
dispute. Hence, the documents such as school leaving certificates
(Exhibit B and Exhibit 11, 11A), certificates issued by the employers
(Exhibit K and 10), driving license (Exhibit E), and other documents
produced by both the parties for the period prior to 1970 are not relevant
to decide the issue.
27. The plaintiff as well as defendant no.3 are claiming to be in
exclusive possession of the suit room since 1970 to the exclusion of the
other. It is to be noted that the plaintiff has placed on record electricity
bills for the year 1974-75 (Exhibit C Colly.) in the name of Krishna Baad
and rent receipts (Exhibit-I Colly.) to prove payment of rent in respect of
the suit room from 1963 till the year 1975. The letters ( Exhibit J Colly.)
were received by the plaintiff at the address of the suit room from
6.5.1968 to 22.11.1976. The fact that the plaintiff was in possession of
rent receipts and electricity bills and that he had received the letters at the
address of the suit room even during the period between 1970 to 1976
substantiates his contention that he was in possession of the suit room
post 1970.
28. It is also pertinent to note that DW3 has admitted that Vijaya and
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Kalpana, daughters of the plaintiff were born at Wadia Hospital, Bombay
in the year 1970 and 1973. At the time of the birth of these two
daughters, the wife of the plaintiff was residing in the suit room. DW1
claims that his father had brought the wife of the plaintiff to Bombay due
to her health issues. This explanation is far from satisfactory. It is in
evidence that the plaintiff was employed in Bombay and had he been
staying in different premises, as alleged by the defendant, it is not
probable that his wife would stay in the suit room exclusively occupied
by defendant No.3.
28. DW3 has vaguely stated the the plaintiff was residing elsewhere.
He has neither given the particulars of the place where the plaintiff
resided since 1970 nor has he adduced any evidence in this regard. On
the contrary, the evidence on record indicates that the ration card relating
to the suit room was originally in the name of Krishna Baad -father of the
plaintiff and Defendant No.3. Subsequently, defendant no.3 being the
elder brother was shown as the head of the family. The name of plaintiff
continued to be on the ration card till 1973. Though his name was
subsequently deleted, the names of Prakash and Shivaji, the son and son-
in-law of the plaintiff continued to be on the ration card. The plaintiff
also obtained a separate ration card in the year 1976, wherein his address
was shown as room no.3. The oral as well as documentary evidence,
particularly the rent receipts (Exhibit I colly), electricity bills (Exhibit
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Colly.), and letters at (Exh. J Colly.), prove that the plaintiff was in
possession of the suit room even post 1969 and this evidence belies the
contention of DW3 that the plaintiff was residing elsewhere.
29. It is also relevant to note that the evidence produced by DW3,
particularly the ration card and the electoral roll at Exhibit 7 for the year
1972 to 1977 proves that the defendant no.3 and his wife were the
occupants of the suit room. The fact that defendant no.3 had received
several letters (Exhibit 5) from the year 1972 onwards at the address of
the suit room proves that defendant no.3 was also occupying the suit
room. Though it is contended that defendant no.3 had acquired room
no.16 and that he was occupying the said room, apart from the notice
under Section 22(1)(b) (Exhibit 11) and letter dt.25.08.1976 (Exhibit 12),
there is no evidence on record to prove that defendant no.3 and his family
members were at any time in possession of room no.16. Defendant no.2-
Board has explained that the room no.16 was in possession of
Chandrakant Parab and that the notice under Section 22(1)(b) was
erroneously issued in the name of defendant no.3. Defendant no.3 has
also explained that the letter at Exhibit 12 was written by the Committee.
It is also on record that the permanent accommodation in lieu of room
no.16 has been allotted to the family of Chandrakant Parab.
Furthermore, the evidence of PW3-Dinanath, who is one of the resident
of Parmanandwadi Chawl and knows the plaintiff and defendant no.3
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since their childhood, does not indicate that defendant no.3 was
occupying room no.16. The above facts and circumstances belie the
contention of the plaintiff that defendant no.3 was in possession of room
no.16.
30. As noted above, the suit room was acquired by Krishna Baad-
father of the plaintiff and defendant no.3. The plaintiff as well as
defendant no.3 are not claiming any independent right in respect of the
suit room and have not been able to prove that they were in n exclusive
possession of the suit room to the exclusion of the other. On the contrary,
the evidence adduced by the respective parties prove that the plaintiff and
defendant no.3 were occupying the suit room since 1970. In such
circumstances, neither the plaintiff nor defendant no.3 can claim
exclusive right either in respect of the suit room or alternative permanent
accommodation in lieu of room no.3.
31. It is to be noted that Section 94 (5) of the new Act i.e. the
Maharashtra Housing and Area Development Act, 1976, provides that
every occupier whether or not he accepts temporary accommodation shall
have right to get alternative accommodation in the reconstructed building.
As noted above, the evidence on record proves that the plaintiff and
defendant no.3 were in joint occupation/ possession of the suit room.
Consequently, the plaintiff and defendant no.3 have a right to the
permanent alternative premises allotted in lieu of room no.3. In such
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circumstances, sustaining the decree as it is would amount to depriving
defendant no.3 of his lawful right to the suit room. Hence, the decree to
that extent needs to be modified. It is stated that pursuant to the order of
the Court, defendant no.3 has been put in possession of the permanent
alternative premises. Suffice to say, such possession shall not confer
exclusive right, title or interest in favour of defendant no.3 and his
possession shall be construed to be on his behalf as well as on behalf of
the plaintiff, till the time the property is partitioned or the parties make
any other alternative arrangements or enter into amicable settlement.
32. Under the circumstances, the appeal is partly allowed. It is held
that the plaintiff and defendant no.3 are entitled to have equal right to the
permanent alternative accommodation in the reconstructed building
allotted in lieu of room no.3 of Parmanand Chawl No.12.
33. The defendant no.2 is directed to allot the premises, being Room
No.302, third floor of Siddharth Building in favour of the plaintiff-
Ranganath Krishna Baad and defendant no.1a-Samabai Vithoba Baad, the
widow of defendant no.3-Vithoba Krishna Baad. The impugned decree
be modified accordingly.
(ANUJA PRABHUDESSAI, J.)
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