JUDGMENT :

R.G. KETKAR, J.

1. Heard Mr. Anturkar, learned Senior Counsel for the petitioner and Mr. Khandeparkar, learned Counsel for the respondent No. 2 at length.

2. By this Petition under Article 227 of the Constitution of India, petitioner/plaintiff No. 3 - Sharokh Nikorawalla (for short ‘Sharokh’) has challenged the judgment and order dated 11.04.2016 passed by the learned Civil Judge, Junior Division, Mahabaleshwar below Exhibit-5 in R.C.S. No. 84 of 2015 as also the judgment and order dated 16.11.2016 passed by the learned District Judge-3, Satara in Miscellaneous Civil Appeal No. 69 of 2016. By these orders, the Courts below rejected the application exhibit-5 made by Sharokh inter-alia praying for interim mandatory injunction directing the respondents No. 1 to 3, hereinafter referred to as ‘defendants’ to remove the obstruction on the gate and opening the access and enjoyment of the suit property; appointing Court Commissioner or any other competent person to remove the obstruction on access to the suit property. The facts and circumstances giving rise to filing of the present Petition, briefly stated, are as under.

3. Mr. Fardoon Dalal (for short ‘Fardoon’) predecessor in title of the defendants, was the owner of “Preston Estate” comprising of two Heritage units namely Preston Cottage and Preston Bungalow. On 14.01.1982, Fardoon rented out “Preston Bungalow” admeasuring 325 sq. mtrs. to Late Aspi Nikorawalla (for short ‘Aspi’). In the year 1994, the rent agreement was further renewed for a period of one year. Clause 1 of the agreement of 1994 shows that the landlords agreed to let out and tenant Aspi agreed to take form the landlords, Bungalow known as ‘Preston Bungalow’ including its out-house at Panchgani in the District of Satara and the furniture and other articles therein for a period of one year from 01.01.1994 upto 31.12.1994 at the rent of Rs. 120/- per month for Preston Bungalow including its out-house and Rs. 30/- per month for the hire charges of the furniture and other articles therein aggregating to Rs. 150/- per month.

4. It is the case of the defendants that when Aspi expired in Australia leaving behind wife Yasmeen Nikorawalla (for short ‘Yasmeen’) and son Kaizash Nikorawalla (for short ‘Kaizash’), all were permanently residing in Australia and not in Preston Bungalow. Some time in the year 2002, Yasmeen and Kaizash filed R.C.S. No. 45 of 2002, which was subsequently numbered as R.C.S. No. 117 of 2010 inter-alia for declaration of their tenancy right and for permanent injunction. It is the case of the defendants that in that Suit, Yasmeen and Kaizash did not even refer and/or mention right of Sharokh. It was contended that Aspi died in Australia and only Yasmeen and Kaizash have been using and residing in the suit property till date as tenants. On 06.10.2005, Yasmeen executed Power of Attorney in favour of Sharokh to contest the Suit filed by her for declaration of tenancy rights. Respondent No. 1, Khorshed Faredoon Dalal (for short ‘Khorshed’) instituted R.C.S. No. 232 of 2006 which was re-numbered as R.C.S. No. 264 of 2010 against Yasmeen and Kaizash for their eviction on the ground of non-user. On 01.06.2008, Yasmeen and Kaizash executed another Power of Attorney in favour of Sharokh to maintain the bungalow and contest the pending Suits.

5. During the pendency of R.C.S. No. 264 of 2010, Khorshed had filed applications at Exhibits-5 and 37 for injunction restraining Yasmeen and Kaizash from creating any third party interest and also from altering nature of the suit property. The injunction was sought on the apprehension that they are likely to sublet the property to Sharokh. By order dated 22.11.2010, the learned trial Judge issued the requisite injunctions. The learned trial Judge held that Sharokh is not a tenant in the suit property. In view of Section 7(15) of the Maharashtra Rent Control Act, 1999 (for short ‘Act’) he does not get status of a tenant. The learned trial Judge also restrained Yasmeen a