Maharukh Mediomah Patel v. Ruksana Barodawala

13) Ms. Bharucha, the learned counsel appearing for Plaintiff- Maharukh would submit that the Trial Court has erred in dismissing the Suit despite upholding the claim of forcible dispossession of the Plaintiff by the First Defendant. She would submit that the suit property was correctly and sufficiently described in the Plaint. That the requirements of Order VII, Rule 3 of the Code were sufficiently met with. That the Plaint clearly described the suit property to comprise of three rooms and one toilet and that the learned Trial Judge has grossly erred in holding that the suit property was not described with sufficient clarity for identification. That the dispute was not with regard to identification of the suit property; the dispute was only with regard to occupation of number of rooms on account of defence taken by Defendant No.1-Ruksana that merely because possession of entire floor is not claimed and possession of only three rooms and one toilet is claimed, it was erroneous on the part of the learned Trial Judge in dismissing the Suit on the ground of difficulty in passing executable and workable decree. She would rely upon the judgment of the Allahabad High Court in Zarif Ahmed (D) Thr. LRs & Anr. vs. Mohd. in support of her contention that the decree passed by the court does not become unexecutable on the ground of non-mentioning of length and width of the land in question. She would submit that the object of provisions of Order VII, Rule 3 of the Code is to ensure that description of the property is sufficient to identify the same. That once the property is sufficiently and clearly identifiable, the Suit cannot be dismissed on the

Page Nos. 10 of 34 ground of insufficient description of the suit property. That the trial court has adopted a hypertechnical approach in denying relief to Plaintiff- Maharukh despite she succeeding in proving her forcible dispossession.

14) So far as Revision Application filed by Defendant No.1- Ruksana is concerned, Ms. Bharucha would submit that the Trial Court has correctly appreciated the position that Ruksana has illegally taken over possession of the suit property after admission of Plaintiff's father in the hospital. That Defendant No.1-Ruksana is a mere caretaker in respect of two rooms and has been illegally claiming rights in respect of the said rooms. However, issue of occupation of said rooms by Ruksana is not the issue in the suit which relates to illegal act of Ruksana in taking over possession of the remaining three rooms and one toilet (the suit property) by taking law into her own hands. That this is a classic case of a caretaker grabbing the property. That mere residence of plaintiff at Jamshedpur cannot be a ground for Ruksana to take over forcible possession of the property. That Ruksana admits that Plaintiff’s father was residing in some portion of flat No.1 at the time of his accident and admission in the hospital. That therefore illegal taking over of possession from Plaintiff’s father is clearly and sufficiently proved before the trial court. She would accordingly pray for dismissal of the Revision Application.

15) Per-contra, Ms. Sharma, the learned counsel appearing for Defendant No.1-Ruksana would submit that the Suit has rightly been dismissed by the Trial Court on the ground of failure to properly describe the suit property. That contrary to the claim of suit property comprising of three rooms with separate toilet admeasuring 1000 sq.ft., Plaintiff in her cross-examination stated that the area of the suit Property is approximately 1500 sq.ft. That their claim of occupation of three premises by Plaintiff's Page Nos. 11 of 34 father is factually incorrect. She would submit that Plaintiff's father was an illegal occupant in respect of only one room in flat no.1. She would submit that with a view to grab additional space, Plaintiff has deliberately given erroneous description of the suit premises as comprising of three rooms and toilet admeasuring 1000 sq.ft. That Plaintiff failed to describe the suit property correctly nor proved the sketch along with the Plaint. That in absence of correct description of the suit property which is the mandatory requirement under Order VII, Rule 3 of the Code, the Trial Court has correctly proceeded to dismiss the Suit.

16) In support of the Revision Application filed by Defendant No.1-Ruksana, Ms. Sharma would submit that the Trial Court has erred in holding that Plaintiff's father was in possession of some portion of flat No.1. That the said finding is contrary to the several rent receipts produced by Defendant No.1-Ruksana in respect of the entire flat No.1. That as against rent receipt produced by Defendant No.1-Ruksana, Plaintiff or her father does not have any document of title in respect of any portion of flat No. 1. That Plaintiff’s father was a rank encroacher in respect of one room of flat No.1. The exact capacity in which he was occupying even that room has not been proved by the Plaintiff in any manner. That in her crossexamination, plaintiff admitted absence of knowledge about payment of rent.

17) Ms. Sharma would further submit that Plaintiff never resided in the suit premises and had shifted to the Jamshedpur after her marriage. That therefore there is no question of forcible dispossession of the Plaintiff from the suit property. That the suit was barred by limitation as Plaintiff's father was admitted in the hospital on 15 August 2013 and lost possession on 15 August 2013. That Plaintiff’s father never came to the suit premises Page Nos. 12 of 34 as he was directly taken from the hospital to Jamshedpur on 17 September

2013. That thus the cause of action arose on 15 August 2013 and the suit was clearly barred by limitation.

18) Ms. Sharma would further submit that in absence of establishment of right, title or interest in the suit premises, Plaintiff cannot seek decree of possession. She would rely upon judgment in the case of Sanjay Kumar Pandey & Ors. vs. Gulbhar Sheth & Ors.2. That Plaintiff in her capacity does not have any claim to possess the suit premises. She would rely upon the Caretakers Agreement dated 5 September 1985, Affidavit dated 4 April 1986, and Letter dated 26 July 1993 in support of her proof of tenancy in addition to tenancy receipts. That the Suit is filed only after learning the proposed redevelopment of the building. She would accordingly pray for setting aside the findings recorded by the Trial Court with regard to forcible dispossession of the Plaintiff or her father from the suit premises. She relies upon judgment of the Apex Court in Sanjay Kumar Pandey (supra) in support of the contention that the real remedy for Plaintiff-Maharukh is to file a Regular Suit based on title as she is unsuccessful in Suit filed under Section 6 of the Specific Relief Act.

REASONS AND ANALYSIS:

19) Both Plaintiff-Maharukh and Defendant No.1-Ruksana have challenged the judgment and decree of the City Civil Court. Plaintiff’s claim of forcible dispossession is accepted by the Trial Court and accordingly, Defendant No.1-Ruksana has filed Civil Revision Application No.304 of 2021. The Suit is however dismissed on the ground of improper description of suit property as per the requirement

Page Nos. 13 of 34 of Order VII, Rule 3 of the Code. Accordingly, Plaintiff-Maharukh has filed Civil Revision Application No.64 of 2021. Since Plaintiff- Maharukh’s challenge to the judgment depends on retention of finding of forcible dispossession, which is questioned by Defendant No.1- Ruksana, it would be necessary to first consider Defendant No.1- Ruksana’s challenge to the impugned judgment in S.C. Suit No. 783 of

2014.

CIVIL REVISION APPLICATION NO. 304 OF 2021

20) Plaintiff’s pleaded case in the Plaint is that Motabhai and Dhanmai were occupying the entire first floor of the building consisting of five rooms and two separate toilets (flat No.1) and they put Plaintiff’s parents in possession of three out of the said five rooms and one toilet (suit property) in the year 1960. This is how Plaintiff claims possession of the suit property by the parents since the year 1960. It is Plaintiff’s pleaded case that in the balance two rooms and one toilet, Motabhai and Dhanmai permitted Shirinbai Daruwala to use and occupy the same, and Shirinbai brought a caretaker (Akhtar Ali Barodawala) inside the said two rooms. Defendant No.1 is the wife of Akhtar Ali Barodawala. After death of Shirinbai Daruwala, Defendant No.1- Ruksana started exclusively occupying the said two rooms and toilet where Plaintiff’s parents were in occupation of suit property comprising of three rooms and one toilet. This is the broad case pleaded by the Plaintiff in the plaint. Page Nos. 14 of 34

21) As against the above case of the Plaintiff, Defendant No.1- Ruksana’s pleaded case in the Written Statement is that Shirinbai was the tenant in respect of the entire flat No.1 comprising of four rooms, common passage and two toilets and that Akhtar Ali Barodawala came inside flat No.1 as care taker in the year 1975 and thereafter married Ruksana. Defendant No.1 claims that Akhtar Ali Barodwala took care of Shirinbai and her brother, and out of love and affection, Shirinbai Daruwala executed Caretaking Agreement on 5 September 1985 in the name of Ruksana. Another Affidavit dated 4 April 1986 was executed by Shirinbai giving no objection for transfer of tenancy rights in respect of entire flat No.1 in favour of Ruksana. She also relies on letter dated 26 July 1993 allegedly executed by Shirinbai and addressed to the landlords requesting transfer of tenancy rights in the name of Ruksana. This is how Ruksana claims tenancy rights in respect of the entire flat No.1 of which suit property is a part. Defendant No.1-Ruksana denies the claim that Plaintiff’s father occupied three rooms and one toilet. Her version is that one Motabhai and Dhanmai were occupying one room out of flat No.1 without any right and that said Motabhai and Dhanmai died in the year 1962. Plaintiff’s parents came into occupation of the said one room under the pretext of performing last rites of Motabhai and Dhanmai and remained there as encroachers. This is how Defendant No.1-Ruksana claims that the suit property comprises of one room and one toilet in which Plaintiff’s parents were encroachers.

22) Thus, there appears to be dispute in the versions of Plaintiff and Defendant No.1 about the exact area which was in possession of Plaintiff’s parents. According to Plaintiff, her parents possessed three out of the five rooms and one out of the two toilets of flat No.1 as Page Nos. 15 of 34 against which Defendant No.1-Ruksana claims that there are only four rooms, one passage and two toilets in flat No.1, out of which only one room and one toilet were in illegal occupation of Plaintiff’s parents. Regardless of dispute between the parties about the exact area in possession of Plaintiff’s parents, one thing is certain that her parents were occupying some part of flat No.1 and this possession is not disputed by Defendant No.1-Ruksana. Even if claim of Defendant No.1- Ruksana that Plaintiff’s parents were rank encroachers in respect of some portion of flat No.1 was to be accepted, she has admitted their possession thereof right since 1962 when Motabhai and Dhanmai passed away. Thus, possession of some portion of flat No.1 by Plaintiff’s parents since 1962 is admitted by Defendant No.1-Ruksana in her Written Statement. This is apparent from her pleadings in paragraphs IIb) and c) of the Written Statement which read thus: b) To the best knowledge of this defendant, the said late Mr. Motabhai Dosabhai Dubash and his wife said late Mrs. Dhanmai Motabhai Dubash died in the year 1962 or thereabout. To the best knowledge of this defendant, the said late Mr. Motabhai Dosabhai Dubash and his wife said late Mrs. Dhanmai Motabhai Dubash died within a span of three days or thereabout. It is submitted that at the time of the death of the said late Mr. Motabhai Dosabhai Dubash and his wife said late Mrs. Dhanmai Motabhai Dubash in the year 1962, the Plaintiff's parents late Mr. Sorabh Keki Engineer, being her father and late Mrs. Minni Sorabh Engineer being her mother, came into occupation of a portion of the Suit Property, which was previously occupied by the Deceased Dubash Family under the pretext of performing the Vidhi/last rites of late Mr. Motabhai Dosabhai Dubash and his wife said late Mrs. Dhanmai Motabhai Dubash. It is submitted that the Plaintiff's parents were permitted to occupy the said portion of the Suit flat ie. Suit Property for the limited purpose of performing the said Vidhi/last rites by the Original Tenant in the year

1962. However, despite a considerable time having elapsed, since the time of death of the said late Mr. Motabhai Dosabhai Dubash and his wife said late Mrs. Dhanmai Motabhai Dubash and the purpose of their said occupation having come to an end, the parents of the Plaintiff refused to vacate the portion of the Suit Property, which was in their occupation. Page Nos. 16 of 34 c) This Defendant says that the Original Tenant due to her old age and persistent ailments was not in a position to evict them from the portion of the Suit Property in their possession. Therefore, the deceased parents of the Plaintiff were and/or can, at all material times after the purpose of their occupation was achieved by them, be treated as rank encroachers of the Suit Property and/or the portion thereof, who had no locus and/or rights, title, interest of whatsoever nature in, to, upon and/or in any manner relating to the Suit Property or part thereof. Furthermore, whenever the Original Tenant and/or this defendant were plead with the deceased parents of the Plaintiff to vacate the portion of the Suit Property which was in their occupation, the said deceased parents would inform them that they do not have the financial resources to have an accommodation of their own and/or that the Plaintiff, being their daughter, was not ready and willing to take their responsibility of whatsoever nature.

23) Keeping aside the controversy about the exact area in possession of Plaintiff’s parents, which is in fact the subject matter of dispute in Civil Revision Application filed by Maharukh, I now proceed to deal with the manner in which the dispossession has occurred.

24) Plaintiff’s pleaded case is that she shifted to Jamshedpur after the marriage. Her mother passed away and her father used to reside alone in the suit premises. In August 2013, Plaintiff’s father met with an accident outside the suit property and was admitted to Masina Hospital, Mumbai. While her father was being treated at Masina Hospital at Mumbai, Defendant No.1-Ruksana took over possession of the suit premises by removing the wooden passage door, replacing common door and installing new locks. Pleadings in paragraphs 12, 13 and 14 of the Plaint read thus:

12. In or about August, 2013, the Plaintiffs father met with an accident outside the Suit Property and was admitted to Masina Hospital at Mumbai. The Plaintiff thus came down to Mumbai to look after her father. She was with her father in the hospital for more than a month. Since, the Plaintiff's father was still recovering, the Page Nos. 17 of 34 Plaintiff in or about September 2013, took her father to Jamshedpur, as there was nobody here to look after him. However, the Plaintiffs father never fully recovered from the aforesaid accident and expired on 9th December 2013 at Jamshedpur. Plaintiff craves leave to refer and rely upon the death certificate of her father as and when it produced.

13. The Plaintiff says that while taking her father to Jamshedpur she took some of the items, household articles along with her to her husband's house at Jamshedpur. However, the following articles belonging to the Plaintiff and her family were left at the Suit Property and the same were shown to the Defendant No.1. These include: (a) One surgical bed; (b)Dressing Table; (c)Kitchen Cabinets; (d)One Dining table; (e) Most of the Kitchen items and utensils and other sundry items.

14. The Plaintiff say that in or about September, 2013 when Plaintiff was with her father at Masina Hospital, Mumbai in day and night, Defendant No.1 illegally / unlawfully and without the Plaintiff's knowledge or permission, removed the then existing wooden passage door, which is the entry to the passage of both the Suit Property (which was in the exclusive possession of the Plaintiff) and remaining two rooms (which was possessed by the Defendants) as stated above. Defendant No. 1 unilaterally replaced the then existing common door to first floor premises of the said Building and installed new locks and keys for the same, and kept the keys for the same with her.

25) As against this, Defendant No.1 has described the act of loss of possession in her pleadings by stating that in August 2013, Plaintiff’s father took a fall outside suit property and was admitted to Masina Hospital at Mumbai. She claims that Plaintiff took her father to Jamshedpur directly from the hospital by collecting all the valuables and goods in a tempo and transported the same to Jamshedpur. Defendant No.1-Ruksana accordingly claims that the Plaintiff’s father lost possession when he was admitted in the hospital and was taken directly to Jamshedpur from the hospital. Pleadings in paragraphs II- j), k) and l) of the Written Statement read thus: j) This Defendant says that in August, 2013, the father of the Plaintiff took a fall outside the Suit Property and was resultantly, admitted to Masina Hospital at Mumbai by the cousin of the Plaintiff's husband one Mr. Zubin and the paternal aunt of the Plaintiff, whose name is not known to this defendant and that therefore, in and from August, Page Nos. 18 of 34 2013 itself, the deceased father of the Plaintiff ceased to be in occupation of and/or relinquished his occupation of the Suit Property. At this juncture, it is pertinent to point out that it was this defendant who had informed the Plaintiff, her paternal aunt and the cousin of the Plaintiff's husband about the said accident immediately upon the happening thereof and the Plaintiff did not even bother to come to the City of Mumbai at least for a period of 10 days since the date of the said accident. When the Plaintiff arrived, she did not reside at any point of time, in the portion of the Suit Property, which was previously occupied by her deceased father. However, the Plaintiff had visited the Suit Flat in order to meet this defendant and requested her to keep the valuables belonging to the deceased father of the Plaintiff in safe custody till the time, the Plaintiff made necessary arrangements for the purpose of dispatching the same to Jamshedpur and/or for the purpose of ensuring their disposal otherwise howsoever. It is pertinent to note and/or is in any event stated, at the cost of repetition, that the deceased father of the Plaintiff had ceased to be in occupation and/or relinquished his occupation of the Suit Property since the time he was admitted to Masina Hospital, Mumbai and till the time, the Plaintiff visited the Suit Property for the purpose of dispatching and/or otherwise disposing of the valuables and/or other items belonging to and/or owned by the deceased father of the Plaintiff, this defendant was merely in custody thereof and that the occupation of the deceased father of the Plaintiff cannot be construed, under any circumstances whatsoever, to extent till September, 2013. Furthermore, the Plaintiff during her stay in the City of Mumbai, resided at a guesthouse, the particulars whereof are not known to this defendant. k) This defendant says that as a matter of fact, since the health condition of the deceased father of the Plaintiff further deteriorated, she was compelled, although unwillingly, to take her father to Jamshedpur. Before taking her father to Jamshedpur, the Plaintiff visited the Suit Flat and appeared to be very cordial to this defendant. Furthermore, the Plaintiff even thanked this defendant for all the services and/or assistance that had been provided by her to the deceased parents of the Plaintiff over the period of time. The Plaintiff even arranged for a tempo for the purpose of transportation of the valuables and goods belonging to the deceased parents of the Plaintiff and which were lying in safe custody in the said portion of the Suit Property This Defendant says that in fact, said valuables and goods were loaded in the said tempo and transported to Jamshedpur, in the presence of this defendant and some other neighbors of this defendant residing in the suit building. This Defendant says that insofar as certain broken items belong to the deceased parents of the Plaintiff are concerned, the same were sold by the Plaintiff in scrap and this information was given to this defendant by the Plaintiff herself. l) This Defendant says that at the time of taking away and/or disposing of the said valuables and/or other items, the Plaintiff never Page Nos. 19 of 34 claimed any rights, title and interest in the Suit Property or any portion thereof, either through her deceased parents or otherwise, on the contrary the Plaintiff had, while thanking this defendant for rendering her services and/or assistance, as aforesaid had even made it clear that the deceased father of the Plaintiff would henceforth reside with her at Jamshedpur. It is therefore submitted that the present suit has been filed by suppressing material facts from this Hon'ble Court with a view to procure favourable order by playing a fraud thereupon. (emphasis added)

26) Thus, loss of possession by Plaintiff’s father is linked by Defendant No.1-Ruksana to his admission at Masina Hospital, Mumbai and departure to Jamshedpur alongwith the Plaintiff. The Trial Court has refused to accept this version of Defendant No.1-Ruksana. The Trial Court has recorded following findings in the judgment for refusing to accept the version of Defendant No.1-Ruksana: If at all the stand of defendant no.1 is taken to be true in it's entirety that the plaintiff has taken all the belonging from the portion occupied by her parents, even then there is nothing on record that either plaintiff or her father have handed over the possession of the portion of flat no.1 occupied by them to defendant no.1. Even the evidence of DW-2 Deviyani is only on the point that the father of the plaintiff was illegal occupant and the plaintiff took him to Jamshedpur. It nowhere reflects that they have handed over possession of the premises in their occupation to the defendant No.1. The stand of defendant no.1 that as soon as the father of the plaintiff was hospitalized at Masina hospital, the father of the plaintiff ceased to be in possession of the portion occupied by him is not acceptable. There is no material except the bare words of defendant no.1 that father of the plaintiff has relinquished his right over the suit property. In all probabilities if it is taken to be true that the plaintiff has taken away the articles and handed over the possession, then as to why and for what reason the plaintiff would come back and claim the possession of the same premises. The fact which is coming on the record is that plaintiff alongwith her father left to Jamshedpur on 17/09/2013 and on that day they were occupying their portion in flat no.1. There is nothing on record to show that plaintiff and her father voluntarily handed over portion of flat no.1 in their possession to defendant No.1. The claim of defendant no.1 that plaintiff’s father ceased to be in possession when he was hospitalized have no legal force but this statement is Page Nos. 20 of 34 made to cover up illegal dispossession of the plaintiff. If at all the portion occupied by the father of the plaintiff was accessible from the portion of defendant No.1 does not mean that the defendant No.1 has possessory right over the said portion unless handed over it to her by the plaintiff or her father. The stand of defendant No.1 that the plaintiff was having strain relations with her father does not give right to defendant no.1 to claim possession over the portion occupied by her father. The said stand of defendant No.1 that the relations of plaintiff were strain with her father cannot believed for the reason that the plaintiff came to Mumbai as soon as she heard that her father met with an accident and thereafter she took him to Jamshedpur. Thus, the father of the plaintiff was throughout in possession of the portion of the flat no.1 occupied by him till the possession of it was taken by defendant no.1. The defendant No.1 is in illegal possession of the said portion of flat no.1 by dispossessing plaintiff and her father.

27) I am in complete agreement with the above findings recorded by the Trial Court. I find the defence taken by the Defendant No.1-Ruksana about Plaintiff’s father losing possession of suit property on account of his mere admission in Masina Hospital to be rather bizarre and also dishonest. A person who is in possession of immovable property cannot lose the same merely on account of his/her admission in the hospital for treatment. Plaintiff’s father admittedly occupied some portion of flat No.1 since 1962. He was required to be hospitalized on account of fall outside the suit property. Defendant No.1-Ruksana has pleaded in her Written Statement that “this Defendant says that in August 2013 the father of Plaintiff took a fall outside the suit property and was resultantly admitted to Masina Hospital at Mumbai ……….. and that therefore in and from August 2013 itself deceased father of the Plaintiff seems to be in occupation of and/or relinquished his occupation of the Suit Property”. This defence raised on behalf of Defendant No.1-Ruksana, apart from being bizarre, is otherwise unacceptable in law. There is nothing on record to indicate that Plaintiff’s father or Plaintiff had voluntarily handed over possession of any portion of flat No.1 to Page Nos. 21 of 34 Defendant No.1-Ruksana. Mere act of hospitalization cannot result in relinquishment of possession. Even shifting of Plaintiff’s father to Jamshedpur would not result in relinquishment of possession.

28) By the very fact that Defendant No.1-Ruksana has taken false plea of relinquishment of possession by Plaintiff’s father on account of his hospitalization at Masina Hospital, Mumbai, there is an implicit admission in such defence that Defendant No.1 has unauthorizedly taken over possession of portion of flat No.1. Thus, dispossession of Plaintiff’s father during his lifetime is clearly proved. Thus, two requirements for Section 6 of the Specific Relief Act viz. i) possession of immovable property, and ii) dispossession without consent within 6 months of filing of suit, are fully met in the present case.

29) So far as Plaintiff is concerned, Defendant No.1 did not permit her to enter the suit premises. There is contemporary evidence on record of Plaintiff visiting police station complaining about her dispossession. In fact, Defendant No.1 had admitted in her Written Statement about receiving call from Lamington Police Station. It is also not pleaded case of Defendant No.1 that the possessory rights came to an end with the death of Plaintiff’s father and that Plaintiff could not have in law, secured such possessory rights. It is unfortunate that Defendant No.1 has taken law into her own hands and misused the factum of admission of Plaintiff’s father in the hospital for the purpose of illegally taking over possession of the suit property. She later used death of Plaintiff’s father as a further corroborative factor for denying entry to Plaintiff inside the suit premises. She has gone to the extent of Page Nos. 22 of 34 accusing Plaintiff of having strained relationship with her father and not looking after his health, which is in fact belied by Plaintiff coming over to Mumbai to take care of her father and taking him with her to Jamshedpur. If Plaintiff had strained relationship with her father, she would not have immediately come over to Mumbai, attended her father in a hospital for a month and then taken him alongwith to Jamshedpur to reside with her. Thus both, conduct as well as line of defence adopted by Defendant No.1 is something which does not appeal to this Court.

30) It is strenuously sought to be contended on behalf of Defendant No.1-Ruksana that she is the tenant of the entire Flat No. 1 and that Plaintiff’s father was an encroacher therein. Though the issue of title becomes irrelevant to Section 6 Suit, nor am I delving into the validity of tenancy claim of Ruksana. However, it does not escape the attention of this Court that Ruksana’s plea of tenancy is premised on Caretaking Agreement dated 5th September 1985, which is alleged to have been executed by the original tenant Shirinbai in the same year when Ruksana got married and entered some portion of the flat as caretaker’s wife. It is not very natural that Shirinbai who later lived for 17 long years, would hand over tenancy rights of the flat in favour of someone who just entered on the flat as caretaker’s wife. Ruksana has also relied on Affidavit for transfer of tenancy executed on 4 April 1986, which is also one year after she married the caretaker. Again, Ruksana claims that she acquired tenancy rights in the flat in the year 1993, when Shirinbai was alive. How tenancy rights could be transferred in the name of caretaker’s wife when the original alleged tenant (Shirinbai) was alive and lived for 9 long years after alleged transfer of tenancy. This is the reason why comment is made in the opening portion of the judgment about a caretaker taking over Page Nos. 23 of 34 property of caregiver and then grabbing the adjoining property by taking disadvantage of the fact that the neighbour was hospitalized and his daughter was settled at Jamshedpur. While no one has raised claim in respect of the two rooms and one toilet taken over by Ruksana after Shiranbai’s death, she cannot unlawfully take possession of three rooms and one toilet which was in possession of Plaintiff’s father.

31) Reliance by Ms. Sharma on judgment of the Apex Court in Sanjay Kumar Pandey & Ors. (supra) does not cut any ice as the ratio of the judgment is about limited scope of enquiry in a suit filed under Section 6 of Specific Relief Act, in which Court needs to find out possession and dispossession within a period of six months by ignoring the question of title. The Trial Court has confined its enquiry to the aspect of possession and dispossession, both of which is virtually admitted by Defendant No.1 in her Written Statement. She has admitted that Plaintiff’s father was in possession of some portion of flat No.1 and that he, in fact, suffered a fall outside the suit property in August 2013 and was required to be hospitalised. She has also accepted taking over possession of the portion in which Plaintiff’s father was residing by raising a false plea of relinquishment of possession on account of his hospitalisation. Plaintiff is not claiming any relief based on title. Therefore, there is no requirement for Plaintiff to file a regular Suit. On the other hand, if Defendant No.1 believes that (in fact she has pleaded so) she is the tenant in respect of entire flat No.1 (including suit property), the proper remedy for her is to file a suit for seeking possession from the Plaintiff based on title. Therefore, reliance by Defendant No.1 on judgment of the Apex Court in Sanjay Kumar Pandey & Ors. (supra) is of no avail. Page Nos. 24 of 34

32) The contention raised on behalf of the Defendant No.1 that the suit was barred by limitation is totally misconceived. The said contention is premised on false defence adopted by her of relinquishment of possession simultaneously with admission of Plaintiff’s father in the hospital. It would be relevant to reproduce the relevant averment in the Written Statement relating to limitation. It is pleaded by Defendant No.1 in paragraph 3 as under:

3. … … However, as aforementioned, the Plaintiff has filed after the expiry of the period of limitation stipulated under the said Section 6 of the Specific Relief Act, 1963. This Defendant says that the deceased father of the Plaintiff, namely the said Mr. Sorabh Keki Engineer had ceased to be in occupation and/or in possession of the suit property, in or about second week of August, 2013 or thereabout when he was admitted to Masina Hospital and the Plaint in the above Suit is lodged on 21/02/2014, that is, after the expiry of a period of 6 months from the date on which the Plaintiff's father had relinquished his occupation and/or ceased to be in occupation of the suit premises and for this reason alone, the above Suit is liable to be dismissed with compensatory costs.

33) Thus, the plea of suit being barred by limitation is again premised on false defence of dispossession occurring simultaneously with admission of Plaintiff’s father in the hospital. Since the said defence is found to be both, factually and legally untenable, the plea of suit being barred by limitation also deserves instant rejection.

34) Resultantly, I do not find any reason to interfere in the findings of forcible dispossession recorded by the Trial Court against Defendant No.1-Ruksana. The said findings are well supported by evidence on record. They cannot be treated as perverse in any manner. The City Civil Court has acted within its jurisdiction while recording the Page Nos. 25 of 34 said findings. No case is therefore made out for interference in the said findings in exercise of revisionary jurisdiction by this Court under Section 115 of the Code. Since I am not inclined to interfere in the finding of illegal dispossession recorded by the Trial Court, Civil Revision Application No.304 of 2021 deserves dismissal.

CIVIL REVISION APPLICATION NO.64 OF 2021 35) Plaintiff has filed Civil Revision Application No.64 of 2021 to the limited extent of dismissal of her Suit despite virtually succeeding in the same. Plaintiff succeeded in proving possession of suit premises by her and by her father and their illegal dispossession. She has thus made out perfect case for grant of a decree under Section 6 of the Specific Relief Act. The Trial Judge however, refused to grant decree in favour of the Plaintiff by holding that the suit property was not sufficiently described for passing an executable and workable decree. The relevant findings recorded by the Trial Court in paragraph 18 of the judgment reads thus:

18. The moot question is description of the property. The plaint shows that three rooms comprising of 1000 sq. feet of carpet area. If it is the case of the plaintiff that there are five rooms, three rooms were occupied by the father of the plaintiff and two rooms are occupied by defendant no.1, as to how it can be ascertained which three rooms and a toilet were in possession of the father of the plaintiff. A plan is annexed with plaint and also at the time of evidence, map was annexed but the said document was not proved. The plaintiff, has not taken any endeavor to prove the said sketch map annexed at the time of evidence. Even, Ld. Counsel for the plaintiff fairly submitted that plaintiff failed to prove the sketch map. Be that as it may, the plaint is silent as to which portion of flat no.1 these three rooms and toilets are situated which were in possession of the father of plaintiff. The possession of entire floor is not claimed. The area of three rooms is claimed to be 1000 sq. feet but from which portion the said area is to Page Nos. 26 of 34 be carved out or calculated from flat No.1 is not coming on record. The plaint map also does not give description of the suit property to sufficiently identify it. As per Order VII Rule 3 of The Code of Civil Procedure (Bombay Amendment) where the subject matter of the suit is immovable property, the plaint shall contain a description of the property sufficiently to identify it. Thus in the absence of description of the property, it is difficult to pass any executable and workable decree although it is proved by the plaintiff that portion of flat No.1 was occupied by her father and she was illegally dispossessed from the suit property within six months of filing suit. But she is not entitled for decree of possession in the absence of proper description of the property. Hence, I answer issue no.1 in the affirmative and issue nos.[2] and 3 in the negative.

36) The Trial Court felt that there was difficulty in identifying as to which of the three rooms and toilet were in possession of Plaintiff’s father. Plaintiff had actually annexed a plan alongwith the Suit as well as with her affidavit of evidence. The learned Trial Judge however held that the Plaintiff did not make endeavour to prove the said sketch map. The Trial Judge further held that the Plaint was also silent about the exact portion of flat No.1 comprising of three rooms and toilet which was in possession of Plaintiff’s father.

37) In my view, the Trial Judge has seriously erred in dismissing the Suit by adopting a hyper-technical approach of insufficient description of the suit property. The learned Trial Judge has referred to provisions of Order VII, Rule 3 of the Code (Bombay Amendment) for holding that it was not possible to pass an executable and workable decree in absence of sufficient identity of the suit property. As a matter of fact, Bombay Amendment is irrelevant as the only added insertion is in respect of suits for encroachment. Plaintiff’s suit was not for encroachment and therefore, it was not mandatory for her to produce sketch of the suit property. Order VII, Rule 3 of the Code Page Nos. 27 of 34 requires description of property ‘sufficient to identify it’. Rule 3 of Order VII of the Code together with Bombay Amendment read thus:

3. Where the subject-matter of the suit is immovable property.— Where the subject-matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it, and, in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundaries or numbers. Bombay Amendment In case of encroachment, sketch showing as approximately as possible the location and the extent of the encroachment shall also be filed along with the plaint.

38) The learned Trial Judge has thus committed a fundamental error in expecting Plaintiff to produce or prove sketch of suit property ignoring the position that Suit was not for encroachment. It is another matter that the Plaintiff had produced sketch of the suit property sufficiently identifying the same.

39) The purpose and objective behind provisions of Order VII Rule 3 of the Code ought to have been appreciated by the learned Judge rather than taking hyper-technical approach of dismissing the suit which remained pending before him for five long years after undergoing a detailed trial. The travesty is that though Plaintiff has practically succeeded in the suit, the Trial Court has denied the fruits of success to the Plaintiff by adopting a hyper-technical approach that it was unable to identify the exact suit property for passing an executable and workable decree. Page Nos. 28 of 34

40) As a matter of fact, no issue was framed about description of the suit property, and Plaintiff is apparently taken by complete surprise that her Suit would get dismissed on account of Court’s inability to locate the exact suit property.

41) The learned Trial Judge has recorded a finding that the plaint map also does not give description of the suit property to sufficiently identify it. I have gone through the records and proceedings called from the City Civil Court. Alongwith the plaint, the Plaintiff has produced the following sketch for the purpose of identification of the suit property.

42) The above sketch in different colours gives crystal clear picture of the portions of flat No.1 in possession of the Plaintiff and in Page Nos. 29 of 34 possession of Defendant No.1. The green portion in the sketch are the three rooms in possession of the Plaintiff alongwith the toilet. The said sketch was also produced alongwith the affidavit of evidence. In my view, the sketch produced alongwith the plaint and affidavit of evidence was sufficient for the purpose of the Trial Court to pass a decree for recovery of possession of rooms and toilet indicated in green colour of the said sketch maps.

43) Despite having clear identification of the portions of flat No.1 in possession of Plaintiff’s father and Defendant No.1-Ruksana, the Trial Court has grossly erred in dismissing the Suit by recording an egregiously erroneous finding of inability to identify the suit property for the purpose of passing executable and workable decree.

44) In addition to the sketch produced along with the Plaint and Affidavit of Evidence, Plaintiff has placed on record at Exhibit-B to her Civil Revision Application a copy of approved first floor plan of the building and had marked the portions in possession of her father in red lines. It would be apposite to reproduce the said map: Page Nos. 30 of 34

45) The above map is produced only for the purpose of ease of identification of the suit property, which shows that flat No.1 has hall, two bed rooms, kitchen and one additional space between the two bed rooms, one common passage leading to two toilets. In her suit, Plaintiff had described the suit property to comprise of three rooms and one toilet. The said three rooms are the two bed rooms appearing in the above map and one encroached space near the bathroom. According to Plaintiff, Defendant No.1-Ruksana remained in possession of the other two rooms and one toilet.

46) Also, the Court is invested necessary power under Order XXVI Rule 9 of the Code in case it finds any difficulty with regard to identification of the suit property. It appears that in prayer clause (d)(iv) of the Plaint Plaintiff had prayed for appointment of Court Commissioner to visit the suit property inter alia to make sketch thereof. Therefore, if the Trial Court had faced any difficulty in identifying the suit property, it could have directed appointment of Court Commissioner and got prepared the sketch of suit property. Instead of doing so, the Trial Court has egregiously erred in dismissing the suit despite upholding the plea of unlawful dispossession by Ruksana by taking hyper-technical approach. The approach of the Courts need to be towards furtherance of cause of justice and not to adopt pedantic approach by denying relief to a successful Plaintiff on technicalities. The Trial Court ought to have appreciated the manner in which Ruksana has grabbed over the suit property and ought to have taken all measures to ensure that the possession thereof is handed back to the Plaintiff. The approach of the Trial Court in dismissing the suit on technicalities and Page Nos. 31 of 34 driving the Plaintiff for a round of litigation before this Court is not appreciated.

47) Considering the above position and keeping in mind the purpose of filing a Suit under Section 6 of the Specific Relief Act and summary enquiry therein, the Trial Court ought not to have adopted a hyper-technical stand in the light of factual dispute about occupation of one or three rooms. The Trial Court could have undertaken enquiry about the exact number of rooms in possession of Plaintiff’s father. The purpose of Section 6 of the Specific Relief Act is to merely restore the possession which existed prior to dispossession. The affected party by decree passed under Section 6 of the Specific Relief Act in suit, will have to adopt necessary remedies for recovery of possession based on title. In my view therefore, the Trial Court ought to have decreed the Suit rather than dismissing the same by adopting hyper-technical approach.

48) Resultantly, Civil Revision Application No.64 of 2021 filed by Plaintiff-Maharukh deserves to be allowed. Upholding the order of Trial Court would result in a absurd situation that despite proving her illegal dispossession, Plaintiff would be denied the relief of restoration of possession. On the other hand, if the suit is decreed and if Defendant No.1-Ruksana believes that Plaintiff is not entitled to possess the suit property or that she alone is entitled to possess the same in her capacity as tenant of flat No.1, she can file the suit for recovery of possession from Plaintiff-Maharukh. Since dispossession of Plaintiff and her father is found to be illegal, it is Defendant No.1-Ruksana who needs to be driven to file a fresh suit rather than making Plaintiff-Maharukh to file a fresh suit for recovery of possession. Page Nos. 32 of 34

49) Since it is proved that Defendant No.1-Ruksana has taken law into her own hands by illegally taking over possession of suit property from Plaintiff and her father by misusing the factum of his hospitalization, it would be appropriate to award costs against Defendant No.1-Ruksana and in favour of the Plaintiff-Maharukh. The costs are quantified at Rs.50,000/-.

50) I accordingly proceed to pass following order: i) Civil Revision Application No.304 of 2021 filed by Ruksana is dismissed. ii) Civil Revision Application No.64 of 2021 filed by Maharukh is allowed and Special Civil Suit No.783 of 2014 is decreed in terms of prayer clauses (a), (b) and (c) which read thus: a. This Hon'ble Court be pleased to declare that Defendant No.1 dispossessed the Plaintiff from Suit Property viz. 148, Abbasi Building, 1st floor, Opp. Falkland Road Post Office Corner of Grant Road, Mumbai-400008 without following due process of law and the same is bad, illegal and without the authority by law; b. This Hon'ble Court be pleased to restrain the Defendants their servants, agents, and representatives by a permanent order and injunction from using, possessing and occupying Suit Property; c. This Hon'ble Court be pleased to order and direct the Defendants their agents, representatives and servants, to peacefully handover the possession of the Suit Property to the Plaintiffs for her exclusive occupation, use and possession thereof; iii) Defendant No.1-Ruksana shall pay to the Plaintiff-Mahrukh costs of Rs.50,000/-. Page Nos. 33 of 34

51) Both Civil Revision Applications are accordingly disposed of. In view of disposal of both the Civil Revision Applications, nothing would survive in Interim Application No.18325 of 2022 as it is not necessary to implead any party to Civil Revision Application No.64 of 2021 and accordingly, the Interim Application is also disposed of. (SANDEEP V. MARNE, J.)

52) After the judgment is pronounced, the learned counsel appearing for Defendant No.1-Ruksana, prays for stay of the judgment for a period of 8 weeks. Request is opposed by Plaintiff-Maharukh. Considering the nature of findings recorded in the judgment, I am not inclined to entertain the request for stay. Request for stay is accordingly rejected. (SANDEEP V. MARNE, J.) Page Nos. 34 of 34