The court emphasized the necessity of proving prior possession for recovery of possession claims, ruling that insufficient evidence led to the dismissal of the Plaintiff's suit.

JUDGMENT :

(Sharmila U. Deshmukh, J.)

1. The Appeal is at the instance of the Original Plaintiff being aggrieved by the judgment dated 30th July, 2011 passed by the City Civil Court dismissing the Short Cause Suit No. 3995 of 2004. The present Appeal was admitted on 10th October, 2011. For sake of convenience, parties are referred to by their status before the trial Court.

FACTUAL MATRIX :

PLAINT :

2. S.C. Suit No.3995 of 2004 was instituted seeking direction to the Defendants to restore the possession of the suit premises described as shop admeasuring 10’ X 8’ sq. ft. made of brick masonary walls and roof of cement sheet situated at Haji Mazar Ali Chawl, facing New Mill Road by side of Room No.4, Opp. of Dr. Swenti’s Clinic, New Mill Road, Kurla (W), Bombay- 17 and to restore the suit premises back to its original position by removing all changes affected thereto.

3. The case of the Plaintiff is that for about five decades, the suit premises was in exclusive, use, occupation and possession of the Plaintiff’s father and thereafter of the Plaintiff and his brother Badruddin and from the suit premises, the business of selling bread, biscuits, dry-fruits etc. in name and style of M/s. Modern Biscuits Stores was being carried out continuously and uninterruptedly. The Plaintiff and his brother had obtained shop and establishment license from the Bombay Municipal Corporation. The non agricultural tax in respect of suit premises was paid by the Plaintiff. During the year 2000, the census was carried out in which Application dated 26th July, 2000 of the Plaintiff was accepted by the Authority.

4. The Defendants were stated to be residing in the room behind the suit premises which was separated by common brick masonary wall. On 10th April 2003, at about 5:00 a.m., the Plaintiff and his brother reached the suit shop and saw that the Defendants had broken the common brick wall separating the suit premises and the Defendants premises and removed all articles lying in the suit premises i.e. ten small size cupboards, one suit-case containing cash, two air bags and all stock-in-trade. The Plaintiff and his brother went to the Kurla Police Station to lodge their complaint, however, instead of registering the complaint, the Police Authorities detained the Plaintiff and his brother Fakhruddin under Section 151 of Cr.P.C. till 11:00 a.m. on the following day. After their release, they went to the suit shop at about 11:30 a.m. and found that the Defendants had removed the Plaintiff’s lock to the shutter of this suit premises and had put their own lock. Writ Petition No.741 of 2003 was filed in this Court and pursuant to the orders passed by this Court, FIR came to be registered. Subsequently, proceeding under Section 145 of Cr.P.C. were adopted by the Plaintiff which is pending for disposal at the time of filing of the suit before the Metropolitan Magistrate Court, Kurla, Mumbai.

5. The Plaintiff was prevented from filing a suit under Section 6 of the Specific Relief Act, 1963 on account of the advise given to adopt criminal proceeding and therefore, the suit may be treated as suit on title for recovery of possession. The Plaintiff valued the suit for recovery of possession at the market value by Rs.20,000/- and paid the court fees.

WRITTEN STATEMENT :

6. An objection as to pecuniary jurisdiction was raised by the Defendants. It was contended that the documents produced by the Plaintiff were not in respect of the suit structure. One Kaisar Mirza, since deceased, was the tenant in respect of suit premises as well as other adjacent premises and was in exclusive occupation and in possession of the suit premises and residential premises. The rent in respect of the suit premises has been paid by the Defendants and the electricity meter installed in the suit premises stands in the name of Hassan Mirza, which electricity bill was later transferred in the name of Iftikar Banoo Mirza. In the year 2003, Defendant No.1 commenced the business of electronics repairs an