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2017 Supreme(Bom) 2391
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
G.S. PATEL, J.
Nabi Ahmed Mohammed Vasin, Since deceased through his legal heirs, Ansari Nazma Nabi Ahmed and Ors. - Appellants
Versus
Sabira w/o Mohamed Siddique and Ors. – Respondents
First Appeal No. 1066 of 2001
Decided on : 04-08-2017
Advocate Appeared:
For the Appellants :E.R. Naik, Advocate
For the Respondents:A.K.N. Mulla, Advocate
The main legal point established in the judgment is that a fresh period of limitation begins on every successive day the trespass continues, and permissive possession cannot be converted into adverse possession unless it is proved that the person in possession asserted an adverse title to the property to the knowledge of true owners for a period of twelve years or more.
Headnote:
TRESPASS - PROPERTY DISPUTE - Code of Civil Procedure, 1908 - Order 20 Rule 12(1)(c), Bombay Rent Act, 1947 - Section 15-A - [Code of Civil Procedure, 1908 - Order 20 Rule 12(1)(c), Bombay Rent Act, 1947 - Section 15-A]
Fact of the Case:
The dispute involved a property trespass case between family members over a building known as Tahera House in Mumbai. The Defendant claimed tenancy rights, while the Plaintiffs sought eviction based on trespass.
Finding of the Court:
The court found that the Defendant failed to prove tenancy rights and established that the Plaintiffs succeeded to the tenancy as successors of the original tenant. The court dismissed the appeal, ruling in favor of the Plaintiffs and ordering the appellants to deliver possession of the premises to the Plaintiffs within three months.
Issues: The trial court framed and answered nine issues, including the Defendant's claim of limitation and the Plaintiffs' right to recover possession and damages.
Ratio Decidendi: The court held that the Defendant's continued occupation of the premises did not validate his entry and that he failed to substantiate his claims of tenancy. The court also ruled that a fresh period of limitation begins on every successive day the trespass continues, rejecting the Defendant's plea of limitation.
Final Decision: The appeal was dismissed, and the appellants were ordered to deliver possession of the premises to the Plaintiffs within three months.
G.S. PATEL, J.
STRUCTURE
A. INTRODUCTION ……………………………………………………….3
B. FACTS ………………………………………………………………………..4
C. ISSUES ……………………………………………………………………….8
D. EVIDENCE ON RECORD ………………………………………….. 10
E. FINDINGS …………………………………………………………………15
F. CONCLUSIONS AND ORDER…………………………………… 22
A. INTRODUCTION
1. This Appeal arises from the order and judgment dated 28 April 2000 passed by the Ld. Additional Principal Judge of the City Civil Court at Bombay in S.C. Suit No. 7460 of 1995. The appeal was admitted on 9th September 2004.
2. The Appellants were the original Defendants, and the Respondents were the original Plaintiffs. The 1st Plaintiff is Sabira, widow of Mohammed Siddique, and the 2nd Plaintiff is her brother, Noormohamed Din Mohamad. Following the original Appellant's death, his heirs have been brought on record by an amendment dated 30 June 2006.
3. The dispute is over the Defendant's alleged trespass on Room No. 2 (“suit premises” “Shop No. 2”, “Room No. 2”) in a building known as Tahera House, located at 25, Mastan Tank Street, Mumbai - 400008 (“Tahera House”). Tahera Nainuddin was the landlady of Tahera House, Deceased in 1982; cross examination of the Defendant, page 164 of the paper-book.
4. In the City Court Suit, the learned Judge framed nine issues and adjudged the Defendants as trespassers. He also ordered an enquiry under Order 20 Rule 12(1)(c) of the Code of Civil Procedure, 1908 in regard to the prayer for mesne profits. Prayer (a) of the suit was for a declaration that the Defendant was a trespasser and had no right whatever in regard to the suit premises. Prayer (b) was for a decree of possession.
B. FACTS
5. The Plaintiffs and the Defendant are not strangers. They are family members. A detailed family tree is tendered. The Plaintiffs' father, Din Mohammed, and the 1st Plaintiff's father-in-law, Gulam Mohammed (“Gulam”), were brothers. The 1st Plaintiff married Gulam Mohammed's son, Mohammed Siddique.
6. The Defendant, Nabi Ahmed Mohammed Vasin, was the son of Rabiya Bi, the daughter of Gulam, and the sister of Mohammed Siddique. Gulam was thus also the Defendant's grandfather. They were all residing together in Tahera House.
7. The Plaintiffs, who are brother and sister, currently reside in Tahera House. The 1st Plaintiff has succeeded to the tenancy as the widow of Mohammed Siddique, who died on 11 January 1967, Death Certificate at Exhibit “B”. The rent receipts were transferred and now stand in the name of the 1st Plaintiff, Examination-in-chief of the 2nd Plaintiff, pages 127, 128 and 145 of the paper-book.
8. During his lifetime, Gulam was the original tenant of multiple rooms in Tahera House, including the suit premises. The examination-in-chief of the 2nd Plaintiff reveals a ration card in Gulam's name, Marked as ‘X’ for identification, bearing No. 33719, page 128 of the paper-book. This card shows the 1st Plaintiff and her husband as living in Room No. 7 on the first floor of Tahera House.
9. It is not in dispute that the suit premises was originally occupied by one Abdul Hamid, Gulam's maternal cousin. He started a gymnasium or akhada in the suit premises, offering training free of cost. The suit premises became a public institution of wrestling known as Hamidia Akhada, Examination-in-chief of the Defendant, page 152 of the paper-book. After Abdul Hamid's death in 1946, Gulam succeeded to the tenancy of the suit premises, Page 138 of the paper-book.
10. The Defendant claims that Gulam gave permission to one Mohammad Husein Ansari (“Ansari”) to operate and maintain the akhada and its equipment, Page 9 of the compilation on behalf of the Plaintiffs. The Defendant also claims that Ansari was paying rent to Gulam. Gulam died in 1994.
11. The Defendant claims that he was born in the suit premises, which had been used for residential purposes since his father's time, Examination-in-chief of the Defendant, page 152 of the pape
