2024:BHC-AS:16070 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 2748 OF 2004 M/s. Impex (India) Limited } …Petitioner V/s.

1. Mr. Dinashah Jal Daruwala } 1-A. Talera Hoteliers Pvt. Ltd. } 1-B. Mr. Kersasp S.T.Kothavala } 2. Mrs. Zerene Siasp Kothawala } 2-A. Talera Hoteliers Pvt. Ltd. } 2-B. Mr. Zerasp Siasp Kothavala }

2-C. Shahanaz R. Irani nee Kothavala } …Respondents WITH CIVIL APPLICATION NO. 2644 OF 2016 Talera Hoteliers Private Limited } …Applicant (Orig.Resp. No.1-A and 2-A)

IN THE MATTER BETWEEN :

Impex (India) Limited } ..Petitioner V/s.

Mr. Dinshah Jal Daruwala and Ors. } …Respondents WITH CIVIL APPLICATION NO. 1847 OF 2014 M/s. Impex (India) Limited } …Applicant V/s.

Dinashah Jal Daruwala (since deceased)

and others } …Respondents _________________________________________________________________ Mr. Virag Tulzapurkar, Senior Advocate a/w Mr. Chirag Kamdar, Mr. Suraj Juneja and Ms. Aishwarya Ghule i/b M/s. Wadia Ghandy & Co.

for the Petitioner.

Mr. Darius Khambata, Senior Advocate a/w Mr. Amit Mehta, Mr. Rahul Soman, Mr. Karan Rukhana, Mr. Hitesh Mishra and Mr. Vinayak Shukla, for the Respondent Nos.1A and 2A.

_________________________________________________________________

CORAM : SANDEEP V. MARNE, J.

Reserved On : 12 MARCH 2024.

Pronounced On : 4 APRIL 2024.

JUDGMENT:

A. THE CHALLENGE

1) Petitioner-tenant has filed this petition challenging the Judgment and Decree dated 23 January 2004 passed in Civil Appeal No. 624 of 2001, by which the District Court has dismissed its Appeal and has confirmed the Decree dated 13 June 2001 passed by the Small Causes Judge, Pune in Civil Suit No. 490 of 1998. The Small Causes Court had allowed the suit filed by original Plaintiffs and directed Petitioner to handover vacant possession of the suit premises to them.

B. FACTS

2) Facts of the case, as pleaded in the Plaint, are as follows. Original Plaintiffs owned a plot of land bearing Municipal House No. 108 in Koregaon Park, Pune on which, a bungalow known as ‘Gardenia’ is constructed, in addition to few other structures like outhouses and a garage. By Agreement of Lease dated 1 November 1961, Petitioner, who is the original Defendant in the Suit, was inducted as a lessee in respect of the bungalow ‘Gardenia’ together with garage and two rooms in the outhouse and the garden appurtenant to the bungalow together with right to use common servant toilet. The property leased out to Petitioner/ Defendant is described as the ‘suit premises’ in the Plaint. There is open strip of land behind the bungalow-Gardenia admeasuring about 10,000 sq.ft. Additionally there are two more rooms in the outhouse. Plaintiffs did not grant lease in respect of the said vacant land behind the bungalow or in respect of the remaining two rooms in the outhouses, which apparently remained in their possession.

3) Plaintiffs averred in the Plaint that the open strip of land situated at the rear side of the bungalow was fenced with barbed wire fencing in such a manner that the suit premises in Defendant’s possession and the open strip of land with two rooms in the outhouses in possession of the Plaintiffs were separated. That Plaintiffs did not have any access from the side of the Bungalow to the open strip of land, but there was an independent entrance gate from northern side of the plot to access the open strip of the land and the two rooms in the outhouses in possession of the Plaintiffs. It is Plaintiffs’ case that such gate on the northern side was being used for approaching the open strip of the land and the two rooms in the outhouses in possession and occupation of the Plaintiffs. It is Plaintiffs’ case that the said two rooms in the outhouses were occupied by Plaintiffs’ Mali-cum-caretaker named Shipru, who was employed by the Plaintiffs and used to reside in the said two rooms alongwith his family. At the time of filing of the Suit, Plaintiff No.1 was stationed at Mumbai, whereas Plaintiff No.2 was stationed at Masinigudi, Tamil N