1. The Plaintiff has sued for recovery of possession of a flat being flat No. No.6 in AlJabriya Court at 69, Marine Drive, Mumbai 400 020 from the Defendants. The Plaintiff is the owner of the suit building. The Plaintiff has relied upon the property register card in that behalf.

2. Defendant No.1 claims through the Plaintiff's erstwhile tenant. Flat No.6 was earlier tenanted to Jayantilal Desai. After his death his wife Urmila J. Desai continued to occupy the flat until her death and after which their daughter Renuka continued to live in the suit flat. Jayantilal's contractual tenancy extended to his wife and his daughter as statutory tenants of the Plaintiff under the provisions of Section 5 (11) (c) of the Bombay Rent Act, 1947 r/w. 7(15) (d) (i) of the Maharashtra Rent Control Act, 1999. The last statutory tenant Renuka Shah expired on 23rd April, 2010 without leaving behind any heirs and legal representatives leaving with her at the suit flat at the time of her death.

3. The Plaintiff claims that he is entitled to the revisionary rights in the suit flat. The Plaintiff has sued for recovery of possession thereafter from the Defendants who are stated to be trespassers. It may be mentioned that in a suit on trespass the Plaintiff need to show only his title. The claim of the Defendants to possession or to resist the recovery of possession would have to be made by the Defendants and proved by the Defendants. It must, therefore, be shown by the Defendants prima facie at the interim stage of the suit.

4. It is the Plaintiff's case that Defendant No.1 entered upon a flat of the last statutory tenant of the Plaintiff on 31st August, 2010 by breaking open the lock. Whether or not Plaintiff proves the incident of 31st August, 2010 is purely incidental and subsidiary because Defendant No.1 claims to be in possession. His claim is that he was in possession not from 31st August, 2010 but since the life time of the last statutory tenant of the Plaintiff. He claims that he lived with her in her flat. He has not produced any documentary evidence in that behalf for the period prior to the tenant's death. He does not claim blood relationship. He does not claim to be an heir of the deceased statutory tenant. It may at once be stated that in the case of Vasant Pratap Pandit Vs. Dr. Anant Trimbak Sabnis 1994 Mh. L.J. 1450 in paragraph 14 of the judgment it has been held that since the only heir of the tenant living in the tenanted premises at the time of demise of the tenant is entitled to be a tenant of the residential premises U/s.5 (11) (c) (I), a statutory tenant cannot be bequeathed a tenancy right under any testamentary disposition.

5. Defendant No.1 has shown transfer sought to be made by the deceased statutory tenant in his favour under an unregistered document purporting to be an agreement for transfer dated 10th February, 2010 of immovable property on stamp paper of Rs.100/- in the form of letter from the said deceased statutory tenant to Defendant No.1 signed by her and confirmed by Defendant No.1. The transfer is shown to be for consideration of Rs.50 lacs payable “by such installments as may be mutually agreed upon”. Counsel on behalf of the Plaintiff drew my specific attention to the fact that though the deceased lady lived at Marine Drive, Mumbai stamp paper has been purchased in her name at Thane.

6. The said deceased statutory tenant is also shown to have executed the last Will and testament on 10th February, 2010 also on a stamp paper of Rs.100/- similarly purchased on the same date in the name of the statutory tenant of the Plaintiff at Thane. The bequest of the entire flat is shown to be made under the Will in favour of Defendant No.1. The Will is unprobated. Defendant No.1 has applied for probate. The Petition is stated to have been dismissed. The Court is informed by the office that it has been dismissed for want of removal of office objections. It may be at once be stated that even if the Will is probated the Court